LI PING KWONG v. HONG KONG INTERNATIONAL TERMINALS LTD

HCPI 203/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 203 OF 2012

BETWEEN

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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 2 May 2012 against the defendant in favour of the plaintiff for the accident happened to him on 15 July 2009 while he was in the course of work with the defendant with damages to be assessed. 

BACKGROUND

2.  The plaintiff was born on 3 August 1960.  He was educated up to Form 2 level.  He practiced Wing Chun, a school of Chinese martial art, since about the age of 20.  He has worked as a container truck driver for around 20 years. The accident happened at about 5:25 pm while the plaintiff was sitting inside the driving cabin of a container truck in the course of his work on 15 July 2009 at the Kwai Chung Container Terminal awaiting for containers to be loaded onto the truck which he was driving when the crane operator caused the twin loaded containers to drop onto the chassis of the container truck suddenly (“the Accident”).

3.  The plaintiff did not see how the two loaded containers dropped onto the chassis.  He felt the momentum generated by the sudden drop.  As a result, the plaintiff was thrown upwards and fell back down.  He said he felt pain over his neck and back.

4.  The two containers did not hit against the driving cabin.  The container truck did not topple as a result of the sudden drop of these two containers either.  The plaintiff remained on the driver’s seat after the Accident.  He was afterwards sent by ambulance to Princess Margaret Hospital (“PMH”) for treatment.

INJURIES AND TREATMENT

5.  The plaintiff attended the Accident and Emergency Department (“AED”) of PMH.  He complained of neck and back pain.  Upon physical examination, there was local tenderness over his back.  X-ray was taken which showed no fracture. He was given analgesic injection and the pain was improved.  He re-attended the AED of PMH on 21 July 2009.  He was discharged with medication and sick leave until 25 July 2009.

6.  On 25 July 2009, he attended AED of Alice Ho Miu Ling Nethersole Hospital (“NH”) for treatment.  On physical examination, there was tenderness over left side neck and upper back.  The range of movement of his neck, back and shoulder were full.  No neurological deficit was detected.  He was diagnosed to have suffered sprain back.  He was discharged with sick leave.

7.  On 27 July 2009, he consulted private doctor Tang Chai Hung, who referred him for physiotherapy.  He commenced receiving physiotherapy treatment at Healthy Physiotherapy Centre on 10 occasions between 27 July 2009 and 22 August 2009.  On 10 August 2009, he consulted orthopaedics specialist Dr Chan King Man.  He attended AED of NH on 12 August 2009 and was referred to physiotherapy treatment in NH.  He first attended commenced the treatment on 14 August 2009.  He then stopped the private physiotherapy treatment and concentrated with the treatment from NH.

8.  The plaintiff also attended the Tai Po Jockey Club Clinic on 17August 2009.  He complained of persistent neck and shoulder pain after the Accident. Examination showed that the plaintiff suffered tender left trapezius muscle with marked stiffness during left lateral rotation of neck.  His left shoulder was normal with full rangeof movement.  According to the medical report prepared by Dr Lee Ka Chung of Tai Po Jockey Club Clinic, the plaintiff sought treatment at the Tai Po Jockey Club Clinic and his sick leaves were given from 17 August 2009 to 28 August 2009.

9.  He was referred to Orthopaedics Department (“OD”) of NH, which he first attended on 4 September 2009.  Upon referral by OD of NH, on 7 September 2009, he underwent MRI on his cervical region.  It was found that there were small central posterior disc bulges at C3/4, C4/5 and C5/6 levels, and right posterio-lateral disc bulge at C6/7 level, with slight narrowing of the right C6/7 lateral recess noted.  There was no neurocompression.

10.  Meanwhile, he continued to receive physiotherapy treatment from NH until 7 December 2009, when the course of treatment (total 44 sessions) on his neck was complete.  There was 20% subjective improvement.  He continued with physiotherapy in the private centre from 14 December 2009 onwards.  Afterwards, he was again referred for physiotherapy treatment by NH for his back, where he started on 11 February 2010.  He received physiotherapy simultaneously from private medical centre and government hospital for the period between 11 February 2010 and 21 April 2010.

11.  On 1April 2010, the plaintiff attended the Employees’ Compensation (Ordinary Assessment) Board.  The injuries were “neck and upper back injury resulting in neck pain and bilateral hands numbness”.  The Board assessed the plaintiff to have suffered 2% loss of earning capacity.  The Board certified the plaintiff’s sick leave from 15July 2009 to 1April 2010.  The plaintiff appealed against such decision.

12.  The plaintiff was also referred to the Occupational Therapy Department for work capacity evaluation on 4 May 2010.  The initial work capacity evaluation was conducted on 2 July 2010 and the plaintiff reported of neck pain and upper limb weakness and numbness.  Simulated work assessment in prolonged turning steering wheel was performed but the plaintiff was only able to tolerate 4 minutes of simulated work assessment and reported of neck pain and left upper limb numbness.  In July 2010, work hardening program was started by the Occupational Therapist to maximize his work potential.  The same was terminated on 23July 2010 because his progress became static and he was discharged on the same day.

13.  He also attended OD of NH for following up of his injury.  However, there was no further significant improvement to his pain.  According to the report of OD of NH dated 16 March 2010, he was not confident to resume duty. He was referred to the Pain Clinic of NH, where he firstly attended on 7 May 2010. His then symptoms were persistent neck pain radiating to head and bilateral upper limbs, associated with numbness, upper back and lower back pain.  The pain also affected his sleep and mood.  Physical examination at the Pain Clinic revealed diffused tenderness over cervical, upper thoracic and lower lumbar spine, left cervical facet region, diffuse paraspinal muscles, left trapezius and periscapular regions.  Upon considering the MRI result which showed desiccated C5/6 disc, with small disc bulge at C3/7 levels with slight narrowing of right C6/7 lateral access, the Pain Clinic opined that he suffered chronic neck, upper and back pain, likely myofascial with possible cervical facet involvement.  The Pain Clinic suggested the plaintiff on regular exercise in order to facilitate functional rehabilitation.  Medication was prescribed for pain relief.

14.  He was offered surgical intervention of facet block and trigger point injection.  He declined such treatment.  He was then referred to Clinical Psychologist, where he first attended on 19 August 2010, for mood control and pain coping strategy.  During the initial consultation, he complained of persistent neck and back pain with upper limb numbness.  Sleep was much disturbed by pain and numbness.  He expressed sense of frustration towards medical help from NH as his pain and numbness still could not much improved. He had low mood, fear of pain.  In light of his insomnia, low mood, irritability, anxiety about pain and return to work, Dr Tony Wong referred the plaintiff to psychiatry and the plaintiff accepted the referral.

15.  The plaintiff first attended the Psychiatry Department on 18 October 2010.  He was attended by Dr Lee Ho Ming (“Dr Lee”).  Physical examination showed neck pain.  Dr Lee described the plaintiff’s mood and effect to be euthymic and diagnosed him to have suffered adjustment disorder.  Medication (anti-depressant) was prescribed and the prognosis required further observation.  The plaintiff was required to see Dr Lee again in a week’s time on 25 October 2010 and then on weekly intervals.  The medication given to the plaintiff caused nausea and a different anti-depressant was prescribed.  There was then further titration of medication.  According to the sick leave certificates, the plaintiff was last seen by Dr Lee on 19 December 2011.  Thereafter, he was attended mostly by Dr Grace Leung.

16.  Dr Lee signed a Certification for Disability Type of Registration Card for People with Disabilities dated 19 December 2011, wherein Dr Lee opined that the plaintiff’s disability was likely to last for more than 24 months.

17.  Meanwhile, the plaintiff had sought composite acupuncture and physiotherapy treatment from Sheung Yan Chinese Medicine Clinic (尚仁醫館) in Tai Po.  He also received various treatments from various departments of NH, including OD, Clinical Psychologist, Pain Clinic and Eye Clinic.

18.  At the Clinical Psychologist consultation on 25 November 2010, he indicated that he was disheartened by recent pain team’s message of incurability of his pain and may not follow him up for long.  He felt difficult for him to return to any form of driving work.  At the consultation on 24 March 2011, he indicated that pain also spread to chest/low back/lower limb pain.  He also revealed worsened relationship with wife, who then shouldered the family financially.

19.  At the Clinical Psychologist consultation on 14 July 2011, the plaintiff indicated that he had stopped private physiotherapy and acupuncture but has problem with pain exacerbation (both neck and back).  He had kept exercising with Tai Chi and stretching.  At the consultation session on 12 October 2011, he indicated irritation by decoration work and noises.  He was still doing Tai Chi and stretching, helped with housework in cleaning.  He was deemed not able to return to driving.  At the consultation session on 22 February 2012, he complained delay of MRI of lower spine.  He indicated mostly disturbed by hypervigilance to sounds and someone blocking his way. 

20.  MRI on the plaintiff’s lower back was eventually done on 4 June 2012, which revealed mild L34/L45/L5S1 prolapsed intervertebral disc with moderate bilateral foraminal stenosis.

21.  On 17 June 2012, the plaintiff sought treatment from a hospital in Shenzhen (深圳平樂骨傷科醫院).  He has been receiving physiotherapy treatment there on a regular basis, until now.  On 6 July 2012, in light of the plaintiff’s lower back and neck pain after whiplash injury in 2009, and the radiological finding as revealed by the MRI on his neck and lower back, Dr Lam Kit Ying of the Pain Clinic referred the plaintiff for hydrotherapy.  According to the latest report of the Pain Clinic dated 15 April 2014, his pain condition was static with better mood controlled and eager to do regular stretching exercising.  He is still attending OD for managing his spine problems.  His next appointment is 22 August 2014.  According to the latest report of OD of NH dated 18 April 2014, he was last seen on 9 November 2012 with static chronic neck pain and lumbar spondylosis with back pain.

22.  The plaintiff attended the review assessment of his loss of earning capacity hearing on 15 December 2011.  At the review hearing, the board described the injuries as follows:

“Neck and upper back injuries resulting in

(1) Neck pain and stiffness;

(2) Bilateral hand numbness;

(3) Back pain and stiffness;

(4) Adjustment disorder”

23.  The plaintiff was assessed as suffering from 9.5% of loss of earning capacity and his sick leave was extended to 15 December 2011.

24.  The plaintiff is still receiving treatment from the Psychiatry Department.  As recorded in the handwritten notes of Dr Grace Leung dated 3 September 2012, he was not suicidal actively.  The notes dated 15 October 2012 recorded that he felt defeated about job hunting but planned to work again the next year.  His latest attendance by the Psychiatry Department was 8 May 2014. In the updated medical report of 7 May 2014, Dr Grace Leung opines that he is suffering from dysthymia in relation to the Accident and the subsequent unemployment and pain.  Prognosis depends on whether his pain could be in satisfactory control and whether he could resume work in future.

JOINT MEDICAL REPORTS (“JMR”)

Orthopaedic JMR

25.  The plaintiff was jointly examined by the orthopaedic experts Dr Lam instructed by the plaintiff and Dr Wong instructed by the defendant on 26 September 2011. In the Orthopaedic JMR, the experts agreed that the plaintiff suffered soft tissue sprain injury to his neck and back.

26.  Dr Lam opined that the plaintiff might have difficulty in climbing up to his driving seat if he returned working as a container truck driver.  Dr Lam also expressed that the results of the objective examination findings did not show any focal neurological problems.  He opined that there was a significant psychological element in the plaintiff making the pain symptoms intolerable and frustrating.  Dr Lam considered the plaintiff’s orthopaedic condition had achieved maximal medical improvement at the time of joint medical examination.  Further treatment with physiotherapy for pain control would be unlikely to be helpful and he did not recommend for the same.

27.  Dr Wong opined that the plaintiff might experience discomfort on prolonged driving and on exertion.  Dr Wong also considered that it was probable that there was a psychological element in the plaintiff’s subjective complaints of bodily pain.  Dr Wong opined that it could not be ruled out that the plaintiff’s exaggeration was a conscious or deliberate act on his part as the plaintiff was only diagnosed as suffering from adjustment disorder in October 2010 when he was referred to the psychiatric clinic.  The effect of adjustment disorder was usually not long lasting and would improve with time.  He agreed with Dr Lam that the plaintiff should have reached maximum medical improvement at the time of joint examination and further treatment is not indicated.

28.  Both experts agreed that sick leaves given to the plaintiff from 15July to 19 July 2009 and from 21 July 2009 to 1 April 2010 were within appropriate limit.

29.  Both experts agreed that the plaintiff should be able to resume his pre-accident work as a container truck driver.

30.  The MRI on the plaintiff’s lower back was taken on 4 June 2012, which revealed mild prolapsed intervertebral disc at L34/L45/L5S1 with moderate bilateral foraminal stenosis.  As this radiological finding was taken only after the joint examination on 26 September 2011, it has not been considered by Dr Lam and Dr Wong.

Psychiatric JMR

31.  The plaintiff was further jointly examined by the psychiatric experts Dr Lai instructed by the plaintiff and Dr Singer instructed by the defendant on 8 March 2012.  The following psychiatric complaints were made by the plaintiff at the time of examination:

(1) depressive mood, persistent, intensity 7 to 8 out of 10, can go to 10 out of 10;

(2) suicidal ideation but he had not attempted suicide;

(3) loss of energy;

(4) loss of interest in activities;

(5) sleep impairment;

(6) appetite impairment;

(7) irritability;

(8) impairment of concentration and memory.

32.  The plaintiff’s psychiatric complaints during the examination have been recorded by the experts with certain differences.  In the Psychiatric JMR, Dr Singer recorded that:

“He was retarded, felt worthless, anxious”. On the other hand, Dr Lai recorded that “He was slow; he was quick if he bore with the pain, and he could not be quick because of his physical condition. He said he had low self esteem. He felt persecuted by doctors as they gave him contradictory explanations. He heard “voices” from nearby places calling him, he could not make out what they said. He felt followed, did not know those people, thought they persecuted him”.

33.  Under the heading of “Affect”, Dr Singer stated:

“Agitated and resentful at start of examination. He rapidly calms down and mood is neutral much of the time thereafter.”

34.  Whereas Dr Lai stated:

“The Plaintiff is agitated on and off during the examination especially at the beginning. He speaks with a loud voice when he is agitated. About 45 minutes into the first part of the examination, he knocks the table with his fingers and hand when he expresses that he dies not like people obstructing him on the street. Later he becomes agitated when he describes the doctors telling him different opinions. He is agitated again more than an hour into the examination when he talks again about the incident of a girl taking his photos that morning. He is sad and cries when he talks about his symptom of sexual dysfunction. He cries again when he is asked what job he can do.”

35.  Dr Lai identified the stressors and formed the opinion that the plaintiff suffered from an adjustment disorder with depressed mood.  On the other hand, Dr Singer acknowledged that the plaintiff had experienced stressors.  However, Dr Singer opined that he had exaggerated his symptoms.  In saying so, Dr Singer relied on the fact that the plaintiff had given certain grading of the intensity of depressive mood (ie 7 to 8 and sometimes reached 10) and proceeded with comparing the grading with (1) his mood during the examination; (2) the psychiatric symptoms reported by his treating doctor, Dr Lee; and (3) the opinion of the experts in the Orthopaedic JMR.

36.  Dr Lai pointed out that the estimation of degree of pain and mood on a scale of 0 to 10 is a rough assessment for the purpose of estimation of the degree of change along the course of a symptom and the variation of the degree of the symptom for that particular patient.  It is not meaningful to compare the numerical scoring of one patient with the scoring of another patient.

37.  Dr Singer referred to the report of Dr Lee and opined that the severity of the plaintiff’s depressive complaints appeared grossly discrepant with the mild psychiatric symptoms reported by Dr Lee.  Dr Singer was of the view that there was an element of exaggeration in the plaintiff’s case.  He believed the plaintiff had very mild symptoms of depression only and they did not amount to a diagnosable adjustment disorder.  The symptoms were caused by stresses related to the Accident.

38.  Dr Lai considered the symptoms exhibited by the plaintiff during joint psychiatric examination were compatible with a diagnosis of adjustment disorder with depressed mood.  However, Dr Lai believed that the plaintiff was suffering from mild degree of psychiatric symptoms only and he was under the adverse influence of a number of ongoing stressors.

39.  Dr Singer was of the view that the plaintiff is able to cope with his pre-accident work.  His very mild psychiatric symptoms should become residual or insignificant in six months with or without treatment especially after the completion of the present litigation.  Dr Lai believed that the psychiatric symptoms of the plaintiff would likely improve further with his recommended treatment and the plaintiff would likely suffer from minor residual psychiatric symptoms only.

40.  Dr Singer was of the view that the psychiatric treatment given to the plaintiff in the public sector could be tailed off after settlement of the present litigation over a period of 6 months.  Treatment in the public sector would be $800. Dr Lai, on the other hand, considered it would be necessary for the plaintiff to continue to have treatment at the frequency of once in four weeks for about one to one and a half year of psychiatric treatment.  A further course of individual psychotherapy of about five to six sessions is also recommended.  Dr Lai estimated this to be about $200 for a session of psychiatric consultation in the public sector and it would cost about $100 per session for a session of therapy by clinical psychologist in public sector.

41.  Both psychiatric experts agreed that the plaintiff is mentally capable of returning to his pre-accident employment.  Dr Lai believed the work efficiency and tolerance are likely adversely affected by his psychiatric symptoms to a mild degree only.

42.  While Dr Singer recommended no sick leave for his condition, Dr Lai considered a period of 3 months sick leave is appropriate.

43.  In the supplemental psychiatric JMR of 6 June 2013, Dr Singer repeated his earlier views that the plaintiff had exaggerated his symptoms during the joint medical examination as per the records contained in the psychiatric out-patient notes on the plaintiff’s condition observed in the follow-ups attended by him at the NH between 18 October 2010 and 18 February 2013.  Likewise, Dr Lai also remained of his earlier views expressed in the Psychiatric JMR.

ANALYSIS

44.  In general, Ms Chan for the defendant submitted that the results of the surveillance cast serious doubt on the credibility of the plaintiff.  After having carefully reviewed the surveillance report and the video tape, I disagree that they can show that the plaintiff is not an honest and credible witness.  In my view, it is simply neither here nor there.

45.  I think that there is not much dispute as to the physical injuries suffered by the plaintiff, namely soft tissue sprain injury to his neck and back.  The main issue is whether the plaintiff did suffer from any adjustment disorder or psychiatric symptoms as a result of the Accident.  If yes, the extent of the adjustment disorder or psychiatric symptoms suffered by him.

46.  Dr Singer referred to the report of Dr Lee and opined that the severity of the plaintiff’s depressive complaints appeared grossly discrepant with the mild psychiatric symptoms reported by Dr Lee.  Mr Leung, counsel for the plaintiff, rightly pointed out that Dr Lee only stated in his report that “the plaintiff was last assessed on 1 August 2011.  His mood was euthymic.  He had no suicidal idea.”  Dr Lee did not say that his symptoms were mild.  From the context of Dr Singer’s opinion, it appears that Dr Singer considered “euthymic” and “no suicidal idea” as being mild psychiatric symptoms.

47.  Although the plaintiff’s mood has all along been recorded as “euthymic” and not suicidal, he was on that basis diagnosed by Dr Lee to suffer from adjustment disorder and was treated accordingly with anti-depressants.  In my view, there is no suggestion by Dr Singer that Dr Lee made a wrong diagnosis on the plaintiff and gave him the wrong treatment.  Furthermore, it is Dr Singer’s opinion that the plaintiff’s treatment in the public sector was satisfactory. Thus I consider that Dr Singer’s conclusion that the plaintiff has very mild symptoms of depression not amounting to a diagnosable adjustment disorder is unsustainable.

48.  In my judgment, the 2 psychiatric experts in fact agreed that the plaintiff did suffer from some degree of psychiatric illness.  But Dr Singer simply considered that the plaintiff was exaggerating his symptoms of depression.  Hence, it is just a matter of degree described by the 2 experts.

49.  In Joan Carol Bovin v Wing Kin Yin & Anor[1], Suffiad J said as follows:

“15. Lastly, I turn to deal with whether the plaintiff has depressive disorder or an adjustment disorder with depressive moods.  In this respect, I note firstly that what is important is the actual condition of the plaintiff and not how it is medically termed; and secondly, that the difference between Dr Singer and Dr Chung is really one of degree.

……

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

50.  Having carefully considered all the reports, I find that the plaintiff is suffering from mild degree of psychiatric symptoms.  As to whether the plaintiff’s psychiatric symptoms are caused as a result of the Accident, Dr Singer also agreed that the symptoms are caused by stresses related to the Accident.  I therefore have no doubt to find that the answer must be positive. I disagree with the opinion of Dr Singer that the plaintiff was exaggerating his symptoms of depression.  I also prefer the expert opinion recommended by Dr Lai that the plaintiff still needs to continue to have psychiatric treatment at the frequency of once in four weeks for about one to one and a half year in view of his psychiatric symptoms.

PSLA

51.  I do not find the authorities cited by Ms Chan, Counsel for the defendant, are helpful as no psychiatric illness has been suffered by those plaintiffs.

52.  Prior to the Accident, the plaintiff used to practice and teach Wing Chun.  Mr Leung, Counsel for the plaintiff, submitted that being a Kung Fu master, the plaintiff now suffers from permanent disabilities on his neck, spine and limbs which have prevented him from practicing and teaching Wing Chun, it can readily be realized that the plaintiff suffers pain not just physically, but also mentally.  His psychiatric condition is understandable.  Mr Leung cited the following cases for the Court’s consideration.

53.  In Suen Kum Fung Kandy v Tsang Cham Kuen & Anor[2], the plaintiff, a passenger of a bus, suffered a whiplash injury when a goods vehicle hit the bus from behind.  She has residual persistent neck pain.  She had then developed psychiatric symptoms that brought about a character and personality change.  The symptoms affected the relationship between the plaintiff and her husband.  Her husband initiated divorce proceedings and the parties were divorced eventually.  The Master awarded $400,000 as damages for PSLA.  On the plaintiff’s appeal, the Court of Appeal increased the award to $500,000.

54.  In Cheung Man Fai v To Yu Bun & Anor[3], the plaintiff was driving involved with a collision with a taxi driven by the defendant.  Immediately after the accident, the plaintiff declined to go to hospital.  However, later that day, he experienced pain over the right side of his forehead and paralysis over left side of his neck and went to hospital where he was treated and discharged.  The following day, the plaintiff felt stiffness in his neck and left upper limb numbness and weakness.  A CT scan of his cervical spine showed slight bulging of the intervertebral disc at C4/5 and C5/6 without significant narrowing of the spinal canal.  He had suffered a whiplash injury to the neck.  Thereafter, he was put on orthopaedic follow-up. At the time of trial, the plaintiff still experienced limitation of the neck movement as well as numbness of the left (dominant) hand.  This meant that he could no longer participate in sporting activities at which he had previously excelled.  About a month later, the plaintiff also began to experience low mood and anxiety symptoms.  Five months later, he started treatment at a hospital psychiatric department.  He was diagnosed with adjustment disorder with depressed mood.  The plaintiff went for regular psychiatric follow-ups.  At the time of trial, he still had headaches, irritability and depressed mood all of which affected his concentration.  He had insomnia and nightmares of the collision which had given rise to a fear of taxis.  Considering, amongst others, that the plaintiff had to give up his sporting activities, Suffiad J awarded $550,000 as damages for PSLA.

55.  In Joan Carol Boivin v Wing Kin Yin & Anor[4], the plaintiff suffered a whiplash injury when a light goods vehicle hit a private car from behind.  The plaintiff was the backseat passenger of the private car.  After the accident, she was taken to the hospital immediately.  X-ray revealed no fracture and she was given drugs and discharged.  The next day, the plaintiff consulted a doctor complaining of neck and back pain, limitation of neck movement and also headaches.  Later, her complaints extended to numbness in the 4^th and 5^th fingers of her left hand and pain radiating down her left leg from her buttock region.  The plaintiff later developed psychiatric symptoms.  Suffiad J found that there was no blow to the head or any head injury with significant concussion.  His Lordship found that the plaintiff did, arising from the pain she was experiencing, for a period of time after the accident, feel very depressed.  It does not matter whether it was called a depressive disorder or an adjustment disorder with depressive mood.  Nor does it matter whether her mental condition is termed mild or moderate.  Taking into account both the pain and her depression, Suffiad J graded that plaintiff as being in the lower end of serious injury category as defined in Lee Ting Lam v Leung Kam Ming[5] and awarded $475,000 as damages for PSLA.

56.  In the present case, it is not disputed that the plaintiff used to be a Kung Fu master.  With his impairment and disabilities, I accept that he could no longer enjoy such activity and that his confidence and self-esteem is drastically lowered by the psychiatric symptoms which he suffers.  The injuries and residual disability of the plaintiff is very similar to but not as serious as that in Joan Carol Boivin’s casecited above.  In my judgment, an appropriate award for the plaintiff should be $450,000 after into account of the inflation.

LOSS OF EARNINGS

Pre-trial loss

57.  It has been agreed that the plaintiff’s pre-accident earning is $13,676 per month.

58.  The following sick leaves for almost 5 years were issued to the plaintiff:

(1) from 15 July 2009 to 10 August 2009;

(2) from 17 August 2009 to 1 April 2010;

(3) from 26 April 2010 to 15 October 2012;

(4) from 26 November 2012 to date of hearing.

59.  Up to the sick leaves at 15 January 2012, the relevant certificates were issued by the orthopaedic clinic of NH or other hospitals and afterwards, they were issued by the psychiatry department of NH.  Both orthopaedic experts are of the view that a reasonable sick leave period for the plaintiff’s orthopaedic condition should be about 8.5 months from 15 July 2009 to 1 April 2010.  In so far as his psychiatric condition is concerned, Dr Singer considered no sick leave would be necessary while Dr Lai considered that a sick leave period of 3 months would be sufficient.

60.  Ms Chan, counsel for the defendant, relied on Choy Wai Chung v Chun Wo Construction & Engineering Company Limited[6], which held that the court should not accept fully and blindly the sick leave certificates issued to the claimant in the assessment of his loss of earning.  Rogers VP said:

“On this appeal, Mr. Chan SC, who appeared on behalf of the plaintiff, placed great reliance upon the fact that the plaintiff had been given sick leave certificates. In my view the judge was perfectly entitled to reject these as an indication of the plaintiff’s inability to work for the reasons which she gave. It was for the judge to decide whether on the evidence the plaintiff had been unable to work and, if he had been able to work, the extent to which he was able to work. Obviously in doing so, the judge must have regard to the medical evidence. Nevertheless, the judge cannot be bound by the mere issue of sick leave certificates. As the judge pointed out the issuance of sick leave certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff.” (emphasis added)

61.  It is therefore submitted by Ms Chan that the court should only allow the plaintiff to claim for loss of earnings during the sick leave period as certified by the Medical Assessment Board upon review on 15 December 2011 and no further.  Those further sick leaves issued to the plaintiff beyond 15 December 2011 were engineered by him through the scam.  The defendant is prepared to accept that the plaintiff suffered loss of earnings in full for 29 months sick leave period.

62.  On the other hand, Mr Leung, counsel for the plaintiff, relied on Lam Pui Yi Anita v Secretary for Justice[7], in which the plaintiff suffered a neck contusion and sprain and contusion on right shoulder leading to persistent pain and discomfort.  She was granted sick leave by government psychiatrists from November 2006, which was about 7 years after the accident.  In 2007, the defendant’s psychiatric expert opined that the plaintiff’s sickness was attributed to an “abnormal sick role” where she exhibited symptoms of self-perpetuating pain and limitation, caused by extraneous factors.  The trial judge disallowed the plaintiff’s claim for losses during this period finding that on the evidence of the defendant’s expert, any sick leave from November 2006 was unnecessary as it was not for any psychiatric illness.  The plaintiff appealed.  The Court of Appeal held that “the plaintiff was entitled to claim for any loss whilst on sick leave from November 2006 until she returned to work after the judgment.  The plaintiff’s sickness emanated from the accident and the judge accepted that the plaintiff was still suffering from pain and limitations due to the accident.  If a plaintiff suffered loss because she could not work as a result of a defendant’s breach of duty, it mattered not whether the expert witness considered that she was suffering from a physical or psychiatric disorder.  If in resisting the plaintiff’s rightful claim to compensation, the party in breach had aggravated the harm to the injured party and caused the sickness to linger and remain manifested, then if that sickness and manifestation were not contrived or feigned, the chain of causation from the original accident was not broken; rather it was the party that had acted wrongfully that had failed to right the damage.  The plaintiff should be reimbursed for loss of earnings while on sick leave until 14 May 2008 for those periods which were disallowed by the Judge”.

63.  Mr Leung for the plaintiff argued that applying the principle in Lam Pui Yi Anita, this court should award pre-trial loss of earnings up to the date of judgment.  The pre-assessment period is about 58 months (from 15 July 2009 to 19 May 2014). 

64.  In my view, I am certainly not bound by sick leave certificates.  However, taking into account of the plaintiff’s orthopaedic and psychiatric conditions as stated in all the JMR and the opinion given by all the experts relating to the sick leave period, I do not accept that 29 months is appropriate as suggested by the defendant.  Instead, I consider that the plaintiff’s sickness is emanated from the Accident.  So I agree with the submission of Mr Leung that based on the sick leave certificates issued by NH, I shall award pre-trial loss of earnings up to the date of trial for about 58 months.   Hence, I assess that the plaintiff’s pre-trial loss of earnings (inclusive of loss of MPF) for 58 months is thus $832,868.4 [ie ($13,676 x 58) x 1.05].

Future Loss

65.  The plaintiff has been a professional driver for more than 20 years.  He was only educated up to Form 2 and has no other skills.  Mr Leung for the plaintiff argued that the plaintiff could only be employed as a messenger, office assistant or a general worker in future.  According to the figures published by the Census and Statistics Department, the average earning of these employments is around $10,000 per month at present.

66.  Ms Chan, counsel for the defendant, submitted that even the plaintiff’s own experts, both Dr Lam and Dr Lai considered he is capable to resume his pre-accident employment and that the plaintiff never attempted to mitigate his loss of earnings since the Accident.

67.  To start with, I must reject the submission of Mr Leung for the plaintiff that the plaintiff could only be employed as a messenger, office assistant or a general worker in future.  Although all the experts opined that the plaintiff is capable to resume his pre-accident employment, I considered that as the plaintiff was only certified as being able to drive “Class 1 vehicle with automatic transmission”, but not to drive container truck, I disagree that he is capable to resume his pre-accident employment. 

68.  The Driver Assessment Report dated 29 December 2011 showed that the plaintiff was able to perform satisfactorily during the 30-minute on-road assessment which was carried out inside the campus of HK Polytechnic University in Tsim Sha Tsui area.  I do not accept that there was sufficient evidence to prove that the plaintiff was performing with sub-maximal effort in the driver assessment as submitted by Ms Chan for the defendant.  Hence, I am of the view that he could have resumed work as a private chauffeur, taxi driver, coach driver or any kind of professional driver etc, operating vehicles that were of automatic transmission. 

69.  Concerning the average monthly income of a private chauffeur, taxi driver or coach driver etc operating vehicles with automatic transmission, I requested the parties’ solicitors to submit the relevant figures published by the Census and Statistics Department.  The defendant’s solicitors said in their letter that the Census and Statistics Department did not possess such information and that the Transport Department was able to provide the average daily net income per taxi (urban, NT and Lantau) for the years of 2011 and 2012. In my view, such net daily income concerns per taxi which usually operates on 2 shifts per day, rather than per driver.  If I am prepared to accept the figures mentioned therein, I must divide them by half.  For illustration purpose, the average daily net income per NT taxi in 2012 is $733.  I think that if the plaintiff is able to work as a NT taxi driver since he is residing in Tai Po, his average daily net income is only $366.5 (ie $733/2) and his monthly net income is thus about $9,529 ($366.5 X 26).

70.  In the 1^st letter dated 25 July 2014 from the plaintiff’s solicitors, they said that the hotel driver’s average earning in March 2014 is around  $13,598 per month, which shall be treated the same as that of the private chauffeur.  I would accept this figure as submitted by the plaintiff’s solicitors since it is actually in favour of the defendant in the sense that this figure is higher than the average monthly earning of a NT taxi driver.

71.  The defendant did not seek to challenge the current earnings of comparable container truck drivers working at the container terminal.  Thus, I accept the submission of Mr Leung that as from 1 May 2014, the plaintiff’s notional earnings is $23,448 per month. He will then suffer loss of earnings in future for the sum of about $9,850 ($23,448 - $13,598) per month.

72.  For a plaintiff retiring at the age of 65, Table 9 of the Chan Tables applies.  The plaintiff was born on 3 August 1960 and was aged 53 as at the date of the trial.  For a plaintiff with a need for over 10 years, according to Bharwaney J in Chan Pak Ting, the applicable rate of return should be 2.5%.  In my judgment, the applicable multiplier is thus 10.11.

73.  I therefore assess the plaintiff’s future loss of earning (inclusive of loss of MPF) to be $1,254,752.1 ($9,850 x 12 x 10.11 x 1.05).

LOSS OF EARNING CAPACITY (“LOEC”)

74.  In the Amended Answer to Amended Revised Statement of Damages, the defendant is prepared to allow a sum of $144,980 (being $14,498 x 10) under this head.  However, Ms Chan for the defendant in her closing submission said that the defendant now withdraws its earlier concession pleaded in the Amended Answer.

75.  Mr Leung for the plaintiff submitted that for avoiding argument, the plaintiff will agree with the sum of $144,980, which has been allowed by the defendant in the Amended Answer.  Alternatively, Mr Leung relied on Thapa Surendra[8], DHCJ Seagroatt awarded damages for LOEC a sum equivalent to 2-1/2 years of current salary to a plaintiff aged 40 at trial.  In Lung Kwong Ying[9], the plaintiff was aged 52 at trial.  Seagroatt J awarded damages for LOEC the sum of $300,000 (being equivalent to about 3 years’ current salary).

76.  In my view, I fail to see how Ms Chan for the defendant could suddenly at the last moment withdraw the concession pleaded in the Amended Answer bearing in mind that it is a pleading with a statement of truth duly signed by the defendant’s representative.  In any event, I am satisfied that the plaintiff would be disadvantaged in the open labour market in view of his present physical and psychiatric conditions.  In the circumstances, I award the sum of $144,980 under this head as accepted by the plaintiff.

FUTURE MEDICAL TREATMENT

77.  Dr Singer opines that the plaintiff’s psychiatric treatment should be tailed off after settlement of litigation over a period of 6 months.  He opines that such treatment in the private sector would cost $24,000.  Mr Leung for the plaintiff submitted that the plaintiff is agreeable to such sum.

78.  Ms Chan for the defendant submitted that even the treating psychiatrist did not consider the plaintiff needs psychiatric treatment at the frequency as recommended by Dr Lai and that the claim under this head should be dismissed.

79.  In view of the relatively small sum, I accept Dr Singer’s opinion in this regard and assess $24,000 as claimed by the plaintiff.

SPECIAL DAMAGES

80.  The defendant conceded a sum of $20,025 under this head as pleaded in the Amended Answers to the Amended Revised Statement of Damages of the plaintiff, which included medical, traveling and tonic food expenses.  However, Mr Leung for the plaintiff submitted that there are multiple mistakes made in the plaintiff’s claim for medical expenses.  As shown in the Revised Schedule of Medical Receipts, there should be a vast number of receipts which have not been included.

81.  Although it is stated in the Amended Revised Statement of Damages that the expenses incurred for private physiotherapy (Healthy Physiotherapy Centre) were $3,500, Mr Leung for the plaintiff submitted that the plaintiff has actually incurred more expenses on physiotherapy provided by Healthy Physiotherapy Centre.  The actual sum should be $18,200 ($350 x 10 + $700 x 21), instead of $3,500.  This evidenced by the receipts produced.  There is a shortfall of $14,700 due to mistake.

82.  As shown in the Revised Schedule of Medical Receipts, the medical expenses incurred by the plaintiff with receipts is $29,895 plus RMB7,086.  The exchange rate of RMB to HK$ is about 1: 1.25.  RMB7,086 is thus equivalent to about $8,858.

83.  Mr Leung for the plaintiff further submitted that tonic food and traveling expenses, totaling $10,000, are not challenged.  Hence, total amount of special damages is indeed $48,753 ($29,895 + $8,858 + $10,000).

84.  In my judgment, Mr Leung for the plaintiff simply failed to give any reason to the court as to why the mistakes were made by the plaintiff or his solicitors.  Since the Amended Revised Statement of Damages is a pleading with a statement of truth duly signed by the plaintiff, I cannot accept that the plaintiff could suddenly at the last moment increase the amount without good reason.  Thus, I only assess $20,025 as special damages.

SUMMARY

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

Item	Description	Amount (HK$)
(i)	PSLA	450,000
(ii)	Pre-trial loss of earnings (incl. MPF)	832,868.4
(iii)	Future loss of earnings (incl. MPF)	1,254,752.1
(iv)	LOEC	144,980
(v)	Future medical expenses	24,000
(vi)	Special damages	$20,025
	Sub-total	2,726,625.5
	Less EC payments received	343,146
	TOTAL	2,383,479.5

86.  Interest will be awarded at 2% per annum for PSLA from date of the Writ (ie 15 March 2012) to the date of judgment.

87.  Interest will be awarded on pre-trial loss of earnings including MPF, future medical expenses and special damages at 4% per annum from the date of accident (ie 15 July 2009) to the date of judgment.

88.  Order nisi that costs of this assessment of damages be to the plaintiff, 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 within 14 days.