MA YAN HUNG ELTON v. YU CHAU PUI

DCPI 1023/2022

[2024] HKDC 799

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1023 OF 2022

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ASSESSMENT OF DAMAGES

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1.  This is an assessment of damages in a personal injury case in which the plaintiff, a taxi driver at the relevant time, was assaulted by the defendant, who was a passenger of the plaintiff’s taxi.

2.  In the beginning of the assessment hearing, the court first dealt with an extremely late application taken out by the plaintiff shortly before the Assessment of Damages hearing.

3.  On about 29 April 2024, the plaintiff took out a summons to amend the Statement of Claim (“ASoC”) and the Revised Statement of Damages (“ARSoD”) filed on 19 July 2022 and 25 July 2023 respectively (“the Amendment Application”). Pursuant to a court note dated 2 May 2024, the plaintiff on 3 May 2024 filed a supporting affirmation setting out the circumstances of the Amendment Application (“the P’s Affirmation”). Affirmation of Service regarding the Amendment Application and the P’s Affirmation was filed with the court on 6 May 2024.

4.  Although it was unsatisfactory for the plaintiff taking the Amendment Application at such a late stage, having considered the P’s Affirmation and the proposed amendments set out in the ASoC and the ARSoD, it was considered, balancing everything, no significant prejudice would be caused to the defendant if the proposed amendments in the ASoC and ARSoD were allowed as the essence of the proposed amendments were matters that were within the defendant’s knowledge at the relevant times, accordingly, the court acceded to the plaintiff’s Amendment Application with no costs order as the defendant all along had not taken part in the legal proceedings, including the Assessment of Damages hearing.

Procedural History

5.  Interlocutory judgment was entered against the defendant on 13 September 2022 leaving damages to be assessed.

6.  The Notice of Appointment for Assessment of Damages was served on the defendant on 30 November 2023 by post at the address stated on the writ. Affirmation of service regarding the Assessment of Damages hearing was filed on 25 April 2024. The court had also on 24 January 2024 sent a notice of hearing for the assessment of damages to the defendant.

7.  The defendant did not attend the assessment hearing. I was satisfied that notice of the assessment hearing had been duly given to the defendant. It was the defendant’s choice not to attend the assessment hearing. I proceeded with the assessment of damages in this case in the absence of the defendant.

The plaintiff’s case

8.  The plaintiff himself was the only person who testified at the assessment hearing. He adopted as evidence in chief his witness statement filed herein.

9.  The plaintiff was born in 1966. At the time of the accident on 10 August 2020 where he sustained personal injuries (“the Accident”), he was aged 54. He was self-employed as a taxi driver at the time of the Accident and is still working as a taxi driver on the day of the Assessment hearing but the plaintiff said he has been taking a break from work since about a traffic accident which happened on 12 July 2023.

10.  At about 2.03 pm on 10 August 2020, the plaintiff was driving a taxi of which the defendant was a passenger carrying two plastic bags (“the Plastic Bags”). Upon arrival at the destination, a residential Building at Beverly Hills, No 6 Broadwood Road, Happy Valley, Hong Kong (“the Building”), the plaintiff discovered there was water dripping from the Plastic Bags onto the carpet of the taxi. He then requested the defendant to clean up the water but the defendant refused and spoke foul language at him and left. The plaintiff then followed the defendant to the lift lobby of the Building. The defendant at one point pushed the plaintiff’s chest, causing him to fall onto the floor. The defendant attempted to leave the scene by taking a lift but the plaintiff stopped him and stayed at the entrance to the lift and uttered “you wait until the police arrives before going”. At that juncture, the defendant used his right knee to hit the plaintiff’s right lateral knee 2-3 times and used his right fist to hit the plaintiff’s right chest wall and right arm (“the Assault”). The Assault was finally stopped when the security head of Beverly Hills arrived and separated them.

11.  After the Accident, the plaintiff was sent to the Accident & Emergency Department of Ruttonjee & Tang Shiu Kin Hospitals (“the Hospital”) at about 17.54 hours on 10 August 2020 for treatment. Medical examination reveals multiple contusions including right shoulder, right elbow, right chest wall, right thigh and knee. There was tenderness on right shoulder and tenderness over medial epicondyle of right elbow with mild swelling. Tenderness over mid thigh was noted and small bruises were found over lateral right knee. X-ray of right shoulder, right elbow, right knees, chest and right ribs were done and there was no fracture. He was treated and discharged.

12.  Follow up treatments were received by the plaintiff at the clinic of the Department of Family Medicine of New Territories East Cluster (“the Clinic”). According to the medical report prepared by Dr Yue Kwan Shirley Choi dated 8 November 2021, the first examination of the plaintiff at the Clinic on 14 August 2020 shows there was tenderness over right shoulder with no wound and swelling. There was tenderness over medial epicondyle of right elbow with mild swelling but there was no wound. There was tenderness over right mid thigh but no bruises, erythema or wound. There were small bruises over lateral knee with normal range of movement. Subsequent physical examinations at the Clinic reveal tenderness and tightness over right deltoid muscle with normal shoulder range of movement. During the clinic visit on 2 September 2020, he was noted to have decreased range of movement of right shoulder on internal rotation with abduction and on external rotation but there was no tenderness. He was then referred to physiotherapy for further treatment. There was some improvement of his right shoulder pain with physiotherapy. The plaintiff was last seen in the Clinic on 16 July 2021. Physical examination on this occasion shows there was tenderness over anterolateral region of right shoulder. The abduction of right shoulder was 140 degree and internal rotation up to 5^th lumbar vertebrae level. The plaintiff was advised to have self muscle release and sick leaves of 4 days was given at that juncture.

13.  The physiotherapy Report dated 9 December 2021 prepared by Physiotherapist Mo Siu Wah Vesta shows that in the initial assessment conducted on 3 November 2020, the range of movement of right shoulder and elbow of the plaintiff was fair and was associated with pain and weakness. His right shoulder was tender on palpation. Electrophysical modality and therapeutic exercises were given to him. Manual therapy was later added. The re-assessment on 16 March 2021 shows the range of movement of his right shoulder improved. There was residual tenderness over right shoulder and elbow on palpation. There was stiffness over neck region. In the last treatment session on 3 June 2021, it was noted the range of movement of right shoulder had improved, similar to the re-assessment done on 11 May 2021 while there was tenderness over right lateral chest and right shoulder. The plaintiff did not turn up after the treatment session on 3 June 2021.

14.  The medical report of the Department of GOPC clinic of Central Kowloon Health Centre (“the GOPC clinic”) prepared by Dr Law Tung Chi (“Dr Law”) dated 22 October 2021 reveals that between 10 November 2020 and 22 July 2021 the plaintiff visited the GOPC clinic intermittently due to the alleged right shoulder pain after the Accident. For the first examination on 10 November 2020, the medical report of Dr Law states the plaintiff’s right shoulder’s active range of movement was not limited in different directions. Intermittent sick leave was given between 10 November 2020 and 25 July 2021 for the same right shoulder pain after the Accident.

15.  The medical report of Dr Woo On Fai Arthur dated 21 August 2022 states the plaintiff had been visiting the Department of Orthopaedics and Traumatology of Prince of Wales Hospital since 14 January 2021 until 24 June 2022. On the examination on 14 January 2021, it was revealed that for his right shoulder, there were signs of shoulder impingement and positive cervical myelopathic Hoffman’s test. The MRI scan on 10 June 2022 reveals the plaintiff suffered from various problems in the neck and right shoulder. The plaintiff was referred to the Physiotherapy Department again. In his latest follow-up on 24 June 2022, the plaintiff mentioned to Dr Woo On Fai Arthur that he had similar right shoulder pain and increasing left shoulder pain, which affected his sleep. The plaintiff alleged that his pain can be aggravated by lifting heavy object. He also complained of bilateral upper limb numbness, right hand clumsiness and neck pain.

16.  In the physiotherapy report dated 24 August 2022 prepared by Physiotherapist Fung Ho Wing Kelvin, an assessment was done on 24 January 2022 which reveals that the plaintiff could reach almost full shoulder and elbow range of motion with mild pain. Treatment was given to him including pain relief and mobilization exercises. The plaintiff did not attend the subsequent appointment and was then discharged accordingly.

Expert evidence

17.  By an order dated 27 October 2022, the defendant is deemed not to adduce expert medical evidence. By an order dated 28 March 2023, expert medical evidence is limited to one orthopaedic expert for the plaintiff, and the medical report made by Dr Chan Chi Fai Samson (“Dr Chan”) for the plaintiff dated 19 June 2023 be adduced as evidence without calling the maker at the assessment hearing.

18.  Dr Chan interviewed the plaintiff on 17 May 2023, ie approximately 2 years and 9 months after the Accident. Examination of the plaintiff suggests the injuries of the right shoulder and right chest wall are soft tissue contusion injuries of the muscles and tendons which accounted for the persistent pain and swelling and loss of function of the right shoulder in activities of daily living such as lifting. There are certain amount of post-traumatic right shoulder joint stiffness and impingement syndrome of the right shoulder. In the assessment of the right shoulder soft tissue injuries in subsequent MRI scan of the right shoulder, the presence of suspicious tear in the long head of bicep tendon and the glenoid labrum could not be ascertained but a traumatic factor such as the Assault could not be excluded. There was no muscles wasting in both shoulders.

19.  Dr Chan commented the treatments received by the plaintiff were adequate. In respect of the presence of tendinosis in the plaintiff’s right shoulder, Dr Chan was of the view that could be pre-existing or silent, and that there is a possibility that some event or natural progress of the condition would have brought about the present condition. The prognosis for the plaintiff’s chest and elbow injuries is good while the prognosis for his right shoulder problem is fair as the right shoulder pain seems to be persistent in later 2021 as reported in the Physiotherapy report.

20.  In terms of sick leave, as the plaintiff had attended treatment and rehabilitation at physiotherapy department from November 2020 to July 2021, Dr Chan opined sick leave certification from 10 November 2020 to 25 July 2021 appears to be reasonable and adequate. Dr Chan further documented that the plaintiff could cope with daily living activities and according to the plaintiff, he has resumed working as a taxi driver with 6 to 7 hours shift on a daily basis as at the date of the examination on 17 May 2023. Dr Chan considered that, having taken into account the apportionment for any pre-existing condition, the whole person impairment was about 4%.

ASSESSMENT OF THE PLAINTIFF’S CREDIBILITY

21.  In assessing the credibility of the plaintiff, I bear in mind the general principles set out by Deputy High Court Judge Eugene Fung SC in his Judgment in Hui Cheung Fai & Another v Daiwa Development Limited & Others HCA 1734/2009 (unreported, 8 April 2014):

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce) […]

78. In deciding whether to accept a witness' account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness' credibility, I have also attached importance to the consistency of the witness' evidence with undisputed or indisputable evidence, and the internal consistency of the witness' evidence. The latter type of consistency is often tested by a comparison between the witness' oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses' character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd's Rep 1 at 57:

‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness' credibility features prominently in the court's determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

The plaintiff’s evidence and the Factual findings

22.  The plaintiff in his witness statement dated 9 February 2023 contended that due to the Accident, his general mobility, earning capacity and enjoyment of life have been greatly affected by his injuries. He said could not lift up his right shoulder and could not lift up heavy objects. He alleged that as the mobility of his arms had dropped because of his shoulder injury, he could not work prolonged hours as before and needed to take more breaks at work in between. The Plaintiff added that because of his right shoulder pain due to the Accident, he needed to take a 15minute break for every 2-hour work. He in court for the first time alleged prior to the Accident he worked 30 or 31 days per month as the case maybe. As a result of his shoulder injury, he claimed there was a significant drop in income from around HK$35,500 per month to approximately HK$10,800 per month, as he was only able to work on and off for around 8-10 days per month with a daily income of about $1,200 after the end of the sick leave period on 25 July 2021.

23.  The plaintiff in his witness statement mentioned that he met a traffic accident in about January 2022, which as gathered from the medical record[1] it happened on 1 January 2022 (“the 2^nd Accident”). As a result of the 2^nd Accident, he had taken a break of around 7 months afterwards and thereafter he could only work around 8-10 days per month. As mentioned in paragraph 9 above, the plaintiff had another traffic accident on about 12 July 2023 (“the 3^rd Accident”) and he has been taking a break since then. In other words, according to the plaintiff’s case in his witness statement and his oral testimony, the plaintiff’s mode of working and number of working days per month between the Accident and the assessment hearing are as follows:

Period	Working Mode	No of working days per month
10 August 2020 to 25 July 2021 (from date of the Accident to end of sick leave)	Taking a break of about 12 months	0
26 July 2021 to 31 December 2021 (from end of sick leave period to the day before the 2nd Accident)	On and off, not in full capacity	8-10 days per month
1 January 2022 to approximately August 2022 (from the date of 2nd Accident to the end of a voluntary break)	Taking a break of about 7 months	0
About August 2022 to 11 July 2023 (from the end of the 7-month break to the day before the 3rd Accident)	On and off, not in full capacity	8-10 days per month
12 July 2023 to 13 May 2024 (from date of the 3rd Accident to the date of the assessment hearing)	Taking a break of about 10 months	0

24.  Regarding the number of working days per month as at the date of the examination (ie 17 May 2023), when the court pointed out to the plaintiff that Dr Chan had recorded in the solo expert report that the plaintiff had resumed driving 6-7 hours per shift daily as at the date of the examination (“the Daily Version”), the plaintiff said it was a misunderstanding on the part of Dr Chan. He explained the fact is that he told Dr Chan that he could only work 2 to 3 shifts per week and 6 to 7 hours per shift after the expiry of the sick leave period (ie 25 July 2021) due to the Accident until present. The plaintiff was also asked during the assessment hearing whether the COVID hitting Hong Kong rather hard in 2021 and 2022 had any bearing on his monthly income during that relevant period, the plaintiff said COVID had no impact on his monthly income level at all.

25.  On PSLA, as mentioned above, during the follow-up examination on 24 June 2022, the plaintiff mentioned to Dr Woo On Fai Arthur that his right shoulder and increasing left shoulder pain affected his sleep. Similar sleeping problem was made to Dr Chan during the examination albeit he said it was the chest pain and the right shoulder pain affecting his sleep and in the result he avoided sleeping on his right side. He repeated this complaint on the day of the assessment hearing. In court, he added that he used to enjoy running but because of the right shoulder pain caused by the Accident, he had stopped this hobby. He further alleged that because he worried his right shoulder might be accidentally bumped into by someone on the streets, he now avoided social activities. It is however noted that nowhere in his witness statements, medical reports or the solo expert report mentioned the running problem and how the Accident impacts his social life.

26.  On the question of credibility of the plaintiff, despite the plaintiff was the only witness in this case and the plaintiff’s complaints of persistent pain over his right shoulder and how the injuries from the Accident had caused great difficulties to his daily life, in light of all the available evidence, including the public hospital reports, Dr Chan’s expert report and the objective circumstances, it seems to me that the plaintiff’s evidence on the extent and severity of his alleged pain and disabilities is exaggerated. The plaintiff’s complaints of his right shoulder persistent pains during the assessment hearing seem to be contradicted by the observations in the solo report or there is evidence suggesting the plaintiff may have exaggerated these symptoms:

(1)  Dr Chan did not recommend further medical or surgical intervention. Nor further examination by other medical specialist is necessary.

(2)  The plaintiff’s complaint of persistent right shoulder pains do not sit well with the fact that Dr Chan did not find it necessary to prescribe any medication, treatment or physiotherapy for pain relief despite the plaintiff’s complaints. Dr Chan even commented sick leave certification up to 25 July 2021 ie when physiotherapy treatment ends, appears to be adequate. In fact, the plaintiff did not show up in the physiotherapy session after 3 June 2021 claiming that he defaulted public physiotherapy treatment due to static progress while there is no evidence that he had sought private physiotherapy as he so informed Dr Choi of the Department of Family Medicine of the New Territories Easter Cluster[2].

(3)  While there was not much documentary evidence relating to the 2^nd Accident and the 3^rd Accident, the plaintiff during the assessment hearing confirmed the alleged right shoulder pain arisen from the Accident has no impact on his number of working days after the dates of the respective 2^nd and 3^rd Accidents on the basis that his injuries in the 2^nd and 3^rd Accidents were mainly about neck pain and were not related to his right shoulder. He also confirmed that the fact that he could only work 8-10 days per month after the 2^nd Accident (1 January 2022) and thereafter has nothing to do with the alleged right shoulder injury caused by the Accident. Accordingly, it is difficult to believe there was and is persistent right shoulder pain as alleged and such can still cause serious disruption on his life such as sleeping, running and social activities when the same alleged persistent right shoulder pain has no impact on his earning capacity after the 2^nd Accident at all. Further and in fact, Dr Chan did not state the plaintiff is not able to manage activities of daily living. It is thus considered his enjoyment of life and social activities would only be minimally affected by his injuries sustained in the Accident if at all.

(4)  Further, there was no evidence at all how the plaintiff’s alleged shoulder pain affects his work as a taxi driver which generally does not involve the lifting of heavy objects. Dr Chan also did not state the plaintiff could not resume his pre-accident job at the same level and intensity. Nor did Dr Chan opine the plaintiff could only work 6-8 days per month and needed to take lots of breaks in between. As a matter of fact, it was recorded in Dr Chan’s report it was the plaintiff who told him during the examination on 17 May 2023 that he has been driving taxi for about 6-7 hours per shift daily, despite another story was told in his witness statement and his witness statement was made about three months before the examination by Dr Chan. The court does not accept it was a pure misunderstanding as alleged by the plaintiff in court.

(5)  Further, the plaintiff’s work patterns from the date of the Accident to the date of the assessment hearing stated in his witness statement does not tally with his claim for pre-trial loss of earning in the ARSoD (see paragraph 37 below), both of which are accompanied by the respective statements of truth. It must also be borne in mind the draft ARSoD was prepared shortly before the assessment hearing (see paragraphs 2 to 4 above). In fact, the court considers his claim for pre-trial loss of earning from 1 January 2022 to the date of the assessment hearing in the ARSoD appears to be more consistent with the Daily Version.

(6)  The medical report of Dr Law reveals the plaintiff’s right shoulder’s active range of movement as at 10 November 2020 was not limited and intermittent sick leave of generally up to four days was granted.

(7)  It has to be noted that since about 2021 to approximately late 2022, Hong Kong was experiencing a COVID outbreak and some crowd control measures were in place. The plaintiff failed to mention the impact of COVID on his earnings as a taxi driver throughout his evidence but instead put all the blame of income drop due to the Accident. It is hard to fathom the crowd control measures introduced by the government has no impact on his monthly income level during the relevant period at all.

27.  In view of the above inconsistencies or contradictions, it is considered that where there is any conflict between the plaintiff’s testimony and the contemporaneous evidence, I will treat his evidence with great caution and I will prefer those in the contemporaneous evidence.

28.  Based on these factual findings, I now turn to each head of claim.

PSLA

29.  The plaintiff claims a sum of $250,000 for damages for PSLA. Mr Tse, counsel for the plaintiff, relies on the following authorities.

30.  In Chow Ka Kat v Yiu Hsing Development Limited (unrep, HCPI 495/2010, 19 June 2012), the plaintiff suffered from right shoulder contusion injury after a fall. There was a 5 minute of loss of consciousness. There was head injury, heck, back and right shoulder injuries with multiple bruises in his occipital and right shoulder regions. Redness over his chest, right elbow, ack and right knee was discerned. There was no fracture, no wound, and no surgery was required. The plaintiff attended about 40 physiotherapy sessions. The joint experts’ diagnosis was severe right shoulder soft tissue contusion injury, complicated by frozen shoulder with partial recovery. The court awarded HK$250,000 for PSLA.

31.  In Chan Kwok Kuen v Actionsports International Limited [2019] HKDC 543, the plaintiff suffered from tenderness over his left knee. He underwent a surgery in relation to a complex tear involving the anterior horn, body and posterior horn of the medial meniscus and a complete tear of the ACL of the left knee. The plaintiff received physiotherapy of 31 sessions. He recovered and could resume his pre-accident work but the enjoyment of sports by the plaintiff would be reduced because of the injury to his left knee. Since it was not disputed the plaintiff had frequently engaged in outdoor sport before the Accident, the court awarded a sum of $250,000 for PSLA.

32.  In Altaf Ahmed v Innocative Network Engineering Company LImtied and another (unrep, HCPI 237/2008, 21 December 2010), the plaintiff suffered from tenderness over the lower back (withno fracture, no wound) and the pain persisted. Medical experts found there was a soft tissue injury/soft tissue contusion of the low back. There was a pre-existing degeneration suggested by MRI scan and the joint experts agree that the accident has accelerated by a period of approximately 10 years or 10-15 years for the plaintiff’s move to lighter work arising from the degenerative condition of his back. He was awarded $280,000 for PSLA.

33.  In Chan Shek Ho v Shiu Ho-chi and others [2018] HKCFI 737 (unrep, HCPI 613/2014, 6 April 2018), the plaintiff was assaulted and there was some bleeding from his oral gingivae and a 1cm abrasion over the left elbow. After taking into account the plaintiff had suffered a few months of pain and discomfort, the court awarded $130,000 for PSLA.

34.  In Gurung Lachhaman v Gurung Chandra Prakash trading as Metro-construction Company and others (unrep, HCPI 672/2008, 29 October 2010), the plaintiff suffered from some mild soft tissue injury to the low back and a superficial abrasion wound to his right knee. He was awarded $120,000 for PSLA.

35.  In Wong Ping Shing v Ngai Yuk Keung and another (unrep, DCPI 156/2006, 26 June 2006), the plaintiff suffered from tenderness on his left chest wall. The soft tissue inflammation to his left chest causing him persistent pain. There was no crack or fracture of rib. Taking into account the plaintiff might have suffered from on and off pain, the court awarded $120,000 for PSLA.

36.  After due consideration of the authorities, and having considered, inter alia, that the nature of the plaintiff's injuries and the duration of his healing process, it is considered the injuries suffered by the plaintiff in the present case is much less serious than Chow Ka Kat (supra), Chan Kwok Kuen (supra) and Altaf Ahmed (supra). The cases of Chan Shek Ho (supra), Gurung Lachhaman (supra) and Wong Ping Shing (supra) appear to be more suitable comparables among all. As the plaintiff’s injuries appear to be abit more serious than those of the three cases, I assess that PSLA should be $150,000.

Pre-Trial Loss of Earnings

37.  Under this head, in the RASoD, the plaintiff claims a sum of $775,210 from 10 August 2020 to 13 May 2024 on the basis of a monthly salary of $35,500 based on the following three periods:

Period	Period and Amount lost	Amount
(a)  10 August 2020 to 25 July 2021 (end of sick leave)	$35,500/30 x 350 days	$414,166.67
(b)  26 July 2021 to 31 December 2021	($35,500-10,800)/30 x 159 days	$130,910.00
(c)  1 January 2022 to 13 May 2024 (date of assessment)	$8,000/30 x 863 days	$230,133.33
	TOTAL:	$775,210.00

Pre-Accident Monthly Income

38.  There is no dispute that there is no contemporaneous evidence from independent institutions such as those issued by the Inland Revenue Department or the Mandatory Provident Fund etc to verify the plaintiff’s alleged pre-accident monthly income level.

39.  As mentioned above, at the time of Accident, plaintiff says he was working as a self-employed taxi driver earning a monthly salary of around $35,500 and part of his income was received in cash.

40.  In his witness statement, the plaintiff explained how $35,500 was arrived at. Relying on Exhibit “MYH-1”, the plaintiff says and confirms in court bank deposits exceeding or equal to $500 in his two bank accounts, namely, HSBC and Hang Seng Bank accounts as shown in Exhibit “MYH-1” represented part of his monthly income earned from August 2019 to July 2020. The total amount as shown on the said two bank account statements for this period in Exhibit “MYH-1” was $293,000, which is equivalent to about $24,441.67 per month on average. In addition, he alleged that he spent monthly cash of about $11,000 generated from his work as taxi driver on rental, food and other daily expenses. Accordingly, he said his monthly income was about $35,500 [$24,441.67 + $11,000].

41.  The court does not accept the plaintiff’s pre-accident monthly income was $35,500 as alleged. There is no contemporaneous evidence to support the alleged monthly cash expenses of about $11,000 per month. Further, when the court went through the Hang Seng Bank statement in Exhibit “MYH-1” with the plaintiff during the assessment hearing, the plaintiff confirmed some of his daily expenses like water and electricity bills were actually paid from this Hang Seng Bank account. He also confirmed, though he could not recall the exact details, some of the transactions in the Hang Seng Bank also related to the cost incurred as a taxi-driver. It was also his oral testimony that his cash income varied from month to month. As regards the average monthly income of $24,441.67, whilst there was no other corroborative documentary evidence such as MPF, payroll record or tax returns that can support his allegation that the sum deposited into his bank account over $500 represented his alleged monthly income, nevertheless, as the transactions at Hang Seng Bank Statement tend to show that account was used for settling some payments in relation to his work and the plaintiff was able to explain some of the transactions behind the bank transactions in Exhibit “MYH-1”, the court is prepared to accept his pre-accident earning was about $24,441.67 per month on average ie approximately $815 per day.

The appropriate sick leave period

42.  In determining the reasonable length of sick leave period, the court is not bound by the sick leave certificates. Ultimately, the question should be determined after taking into account all the evidence: see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210. Further, in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd, CACV 172/2004 (unreported, 15 July 2005), Rogers VP observed that “the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.”

43.  I have also borne in mind that it is not the purpose of granting sick leave in order to enable an injured person to get rid of residual pain completely. In Pak Siu Hin Simon v J V Fitness Ltd, HCPI 574/2014 (unreported, 15 May 2017) at §77, Madam Justice Au-Yeung said that “the fact that the plaintiff suffered pain did not mean that he would be entitled to sick leave. People may suffer pain for all sorts of reason and that would not prevent them from discharging their duties in full. Employees do not go to work only when they are 100% fit and efficient.” Further, in Chan Sze Yuen v Tin Wo Engineering Co Ltd, HCPI 427/2008 (unreported, 5 February 2016), Master Leong commented at §17 that “we do not go to work only when we are 100% fit and efficient. I cannot imagine that, for example, any professional football player only play matches when he is perfectly fit. Any professional (or even amateur) athletes are likely to be affected all through their careers by various old and new injuries, pains or aches due to training etc.”

44.  Insofar as this case is concerned, first, it is pertinent to note that the doctors of the public hospitals have granted the plaintiff intermittent sick leave from the date of the Accident of 10 August 2020 to 25 July 2021, a total of 121 days[3] (“the 121 days’ Sick Leave”).

45.  On the other hand, it is considered Dr Chan’s opinion regarding the appropriate sick leave period is unlikely to be helpful as it is rather vague. In the solo expert report, he says this, “Mr Ma attended treatment and rehabilitation at physiotherapy for his injuries from November 2020 to July 2021. A reasonable period of sick leave certification from 10 November 2020 to 25 July 2021 may be adequate.” (emphasis added). Since the Accident happened on 10 August 2020, it is puzzling as to why Dr Chan counted the sick leave period from 10 November 2020, rather than from the date of the Accident. In other words, his view for the period 10 August 2020 to 9 November 2020 (“the Gap Period”) is unclear. Mr Tse, counsel for the plaintiff, submitted that that given the seriousness of the injury to the plaintiff’s right shoulder which required so much intervention since November 2020, by inference, sick leave period during the Gap Period (ie from 10 August 2020 to 9 November 2020) is also reasonable. The court sought to clarify with Mr Tse what is meant by “so much intervention” in his opening submissions, Mr Tse submitted that the term refers to the physiotherapy treatments received by the plaintiff during the Gap Period. In any case, it is for this reason that Mr Tse invited the court to accept 10 August 2020 to 25 July 2021 as the appropriate sick leave period and it is the plaintiff’s primary position.

46.  With respect, I reject the plaintiff’s submission regarding his primary position. First, for the reasons stated above, I do not consider the plaintiff’s right shoulder pain was and is as severe as alleged. Further, as fairly accepted by Mr Tse, there is no sickness certificates covering the Gap Period at all. In fact, there was only one physiotherapy session falls within the Gap Period, which was on 3 November 2020 (“the 1103 PT Session”). Hence there was not much intervention as suggested.

47.  In the light of the above, in computing the proper sick leave period, the court considers it is more appropriate referring to the public hospital and clinics’ records that are available on the date of the assessment hearing:

(1)  as mentioned above, from 10 August 2020 to 25 July 2021, a total of 121 days intermittent sick leave was granted by the doctors of public hospitals, in which Mr Tse accepts this is the plaintiff’s fallback position should the court do not accept his primary proposition;

(2)  The court further notes that there is a document issued by the Hospital Authority[4] recording the payments made by the plaintiff for the different treatments he received at different hospitals and clinics (“the Receipt”). The Receipt also records the dates of the physiotherapy sessions taken by him. During the assessment hearing, the plaintiff confirmed all the payments shown on the Receipt on or after 1 January 2022 do not concern this case. Of the various visits recorded on the Receipt, it is noted that from 10 August 2020 to 25 July 2021, on top of the 1103 PT Session, there were 10 other physiotherapy sessions taken by the plaintiff and are supported by medical records issued by physiotherapists of the public hospitals[5]. The 1103 PT Session and the said 10 other physiotherapy sessions (collectively called the “11 Visits”) are outside the 121 days’ Sick Leave. As there is evidence supporting the 11 Visits relate to the Accident, the court accepts those amount to intervention. Accordingly, it is considered it is reasonable and appropriate to add 11 days of sick leave to the 121 days’ Sick Leave.

(3)  Accordingly, based on all the public hospitals and clinics’ records, the total and reasonable appropriate sick leave period, taking into account of paragraph 47(1) and (2) above, would be 121 + 11 = 132 days.

48.  For the sick leave period beyond 25 July 2021, in the light of the above legal principles and for the matters mentioned in paragraphs 26, 42 and 43 above, the court is not satisfied that the plaintiff could not resume his pre-accident work at the same level of intensity after 25 July 2021 and there is no reason to say that the plaintiff can only resume working when he felt 100% fit and efficient. Importantly, as the plaintiff met the 2^nd Accident on 1 January 2022 and the 3^rd Accident on 12 July 2023 while the plaintiff and his solicitors failed to provide with the court sufficient evidence regarding the alleged injuries suffered by the plaintiff in the 2^nd and 3^rd Accidents, the court cannot be certain whether the injuries suffered in the present case overlap with those in the 2^nd Accident and/or the 3^rd Accident. It is thus considered there is a risk granting any claim amount on or after 1 January 2022 could lead to double recovery, let alone to mention that the plaintiff in the assessment hearing confirmed he will file a claim for his injuries suffered in the 3^rd Accident when all the necessary documents are available. More importantly, as mentioned above, it is the plaintiff’s own oral testimony that all the reduction in income after 1 January 2022 has nothing to do with his alleged right shoulder pain. As such, the court fails to see why there could be any loss of income arisen from the Accident after 1 January 2022. There is also nothing to show the plaintiff had shown any determined effort to mitigate his loss despite he was duty bound to do so.

49.  For the above reasons, since the court considers the reasonable sick leave period should be 132 days and should expire by 25 July 2021, it is unnecessary for the court to determine his monthly income level after 25 July 2021, whether it was $10,800 or $8,000 as alleged, whilst noting Mr Tse confirmed in the assessment hearing that a reduction of income to $8,000 per month for the period from 1 January 2022 to 13 May 2024 was arbitrary in nature, based on an assumption of a reduction of 25% income from his alleged pre-accident income of $35,500 since 1 January 2022. As stated above, this appears to premise on the Daily Version told by the plaintiff to Dr Chan during the medical examination.

50.  In the circumstances, insofar as pre-trial loss of earning is concerned, only 132 days out of period (a) is relevant. Applying a monthly income of $24,441.67, I find that the plaintiff’s pre-trial loss of earnings should be $107,543 [$24,441.67/30*132days].

Post-Trial Loss of Earnings

51.  In the ARSoD, the plaintiff’s claim under this head was revised to $657,600.

52.  For the reasons mentioned in paragraph 48 above, there is no sufficient evidence showing that the plaintiff cannot resume his pre-accident job after the end of the sick leave period. As stated above, the court also does not accept the Daily Version indicated by the plaintiff to Dr Chan was a pure misunderstanding. Further, there is no sufficient evidence and as admitted by the plaintiff, to support any post-trial loss of earnings was due to the Accident. Taking into account the whole circumstances, including the risk of double recovery, it is considered the plaintiff should not be entitled to any future loss of earning.

Loss of Earning Capacity

53.  In the ARSoD, the plaintiff claims loss of earning capacity in the sum of $106,500 on the basis that the plaintiff will be at a disadvantage in the open labour market in Hong Kong as compared to other able bodied man as a consequence of the Accident. The plaintiff claims 3 months of pre-assault income.

54.  The guiding principle for making an award for loss of earning capacity was stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

55.  With respect, I do not consider the case of Leung Yau Yee v Tang Chi Tak (unrep, DCPI 1701/2014, 3 November 2016) submitted by the plaintiff can assist him. The plaintiff in that case suffered far more serious injuries to his left hand with swelling and fracture to his left little finger. There was limitation of his left hand movement, loss of gripping power with angulations. The court in that case accepted the plaintiff’s metacarpal-phalangeal joint to the ulnar side of wrist of his left hand had persistent pain and this was relevant to the ordinary tasks as a taxi driver such as controlling the steering wheel and gear lever etc.

56.  Unlike Leung Yau Yee (supra), I found the plaintiff’s evidence on his injuries and condition is exaggerated. Nor do I accept the plaintiff is suffering the alleged persistent pain. While I note that Dr Chan estimated the plaintiff to have 4% loss of earning capacity, however, as mentioned above, I also note that the plaintiff has resumed his pre-accident job before the assessment hearing and the fall of the income was more likely due to his failure to mitigate or some other factors such as COVID. There is no evidence that the plaintiff is under any real risk of losing his current employment or will suffer a handicap in the labour market. Accordingly, it is considered this is not an appropriate to make any award of loss of earning capacity in this case.

Special damages

57.  The plaintiff claims the following special damages:

(a)	Medical expenses	$8,000
(b)	Tonic Food	$6,000
(c)	Travelling Expenses	$3,000
		_______
	TOTAL	$17,000
		======

58.  In respect of medical expenses of $8,000 under this head of damages, there is evidence that the plaintiff had incurred public hospital medical expenses of $6,350 in this case. The court also accept the detailed explanation offered by the plaintiff as to how much he had spent on cream and plasters for lessening his pains arising from the Accident. Accordingly, I award $8,000 in full for medical expenses.

59.  The plaintiff claims a sum of $6,000 for tonic food, of which the plaintiff cannot produce any receipts. While the court may award a reasonable sum for tonic food even no documentary proof has been produced: see Tang Yuet Yi, a minor by Tiu Kwai King v Leung Man Chow [2018] HKDC 985, however, as the plaintiff in court could not even recall any amount has been spent on this item, having considered all the circumstances, I consider no amount should be awarded for tonic food.

60.  The plaintiff’s case on travelling expenses $3,000 appears to be for follow up medical treatments, which is based upon the number of visits to hospitals and clinics by bus or MTR. It is noted that some of the visits to the Hospital and for the physiotherapy treatments are documented. I consider that the amount of travelling expenses as claimed in the amount of $3,000 reasonable and I will award the full amount.

61.  Accordingly, the total amount of special damages should be: $8,000 + $3,000 = $11,000.

Summary

62.  In summary, I am of the view that the plaintiff is entitled to the following amount of damages:

(a)	PSLA	$150,000
(b)	Pre-Trial Loss of Earnings	107,543
(c)	Post-Trial Loss of Earnings	0
(d)	Loss of Earning Capacity	0
(e)	Special damages	11,000
		________
	TOTAL (before interest)	$268,543
		=======

Interest and costs

63.  Interest on general damages shall run at 2% per annum from the date of the writ to the date of this judgment. Interest on special damages shall run at half judgment rate from the date of accident to the date of judgment. Post judgment interest of the assessed sum shall run at judgment rate until payment in full.

64.  I make an order nisi that costs of this assessment on damages be paid by the defendant to the plaintiff, with certificate for counsel, to be taxed if not agreed and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations. The order nisi shall become absolute unless an application to vary is made within 14 days from the date of this decision.

65.  Lastly, I thank Mr Tse for his assistance provided to the court.