NG YU FU v. WONG SHEK MING AND ANOTHER

HCPI 252/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 252 OF 2004

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ASSESSMENT OF DAMAGES

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Application

1. This is an application for assessment of damages by the Plaintiff against the Defendants for the personal injuries suffered by him in a traffic accident.

Background

2. The Plaintiff was born in Hong Kong on 31 October 1964.  He was educated up to Form 6 and operated his own company called Fu Shing Engineering Co. from 1989 dealing with business of installation repair and maintenance of air-conditioners.

3. On 6 May 2001, the Plaintiff was driving a private vehicle HR3741 (“the Car”) and, the 1st Defendant, public bus HB1127 (“the Bus”), in Yuen Long.  The front part of the Bus collided with the offside fender of another vehicle HJ4184 which was then pushed to further collide with the rear body of the Car.  At the material time, the Bus was owned by the 2nd Defendant.

4. The Plaintiff brought the present proceedings against the Defendants for damages on 19 March 2004.  Shortly, on 31 May 2004, the Defendants conceded on a judgment on liability with damages to be assessed.

5. The parties thereafter proceeded with the matter in its usual way.  On 28 February 2005, at a checklist review, the PI master directed, inter alia, that the medical reports of the parties should be adduced without oral evidence being called for.

6. The assessment then came before me on 2 June 2005 and 27 October 2005.  Mr. Hylas Chung of Counsel represented the Plaintiff while Mr. Patrick Lim of Counsel acted for the Defendant.  After hearing the evidence and submissions, I reserved my judgment to be handed down.  Now I do so.

Issues to be disputed

7. Mr. Lim told me that there were 2 issues between the parties:

“ (a) What was the true extent of the injury sustained in the accident?  Did it result in a mild disc prolapse causing paraesthesia and back pain or was nothing more than a minor contusion and the Plaintiff had exaggerated his difficulties;

(b) After recovery from the injury was he able to return to his pre-accident work or not.”

(paragraph 2 of Mr. Lim’s final submission)

I agree and add that, upon findings of the 2 factual disputes, this court will apply the applicable law in order to arrive at the proper damages to be paid to the Plaintiff.

Extent of injury?

8. Mr. Chung mainly relied on the Plaintiff’s own evidence and 3 medical reports to try to substantiate that the Plaintiff had substantial serious injury.

(a) Medical report by Dr. Lee Ka Hing (“Dr. Lee”) of United Christian Hospital dated 6 January 2002,

(b) Medical report by Dr. Arthur Chiang Si Chung (“Dr. Chiang”) dated 29 May 2003,

(c) Witness statement of the Plaintiff dated 4 August 2004, and

(d) Supplemental medical report by Dr. Chiang dated 6 October 2004.

9. On the other hand, the Defendants argued that the Plaintiff had exaggerated his difficulties.  He only suffered from a minor contusion, Mr. Lim’s case was based on the followings.

(a) Medical report by Dr. Chun Si Yeung (“Dr. Chun”) dated 14 June 2004,

(b) Surveillance report, including video tape, by Great Force Investigation Consultants Limited dated 24 June 2004, and

(c) Further Surveillance report, including video tape, by Great Force Investigation Consultants Limited dated 19 May 2005.

10. Upon careful consideration, I am of the view that, on balance of probabilities, the Defendant’s case is to be accepted.  My reasons appear as follows.

(a) The Plaintiff did not go to the hospital immediately after the accident.  It happened at about 12:09 a.m. on 6 May 2001 and he only went to Dr. Lee of the United Christian Hospital almost 1 day later.

(b) The initial examination by Dr. Lee showed that the Plaintiff only suffered from minor injuries.

“… He was well on examination and walking unaided.  His back was tender on the sacral region and there was no neurology identified.  X-ray lumbo-sacral spine was taken, which was normal.

He was given analgesic and topical ointment.  Sick leave from 7/5/2001 to 10/5/2001 was granted.”

(Dr. Lee’s report dated 6 January 2002)

(c) With due respect to Dr. Chiang, his medical reports are less assertive and convincing than that of Dr. Chun.  As rightly pointed by Mr. Lim in paragraph 8 of his final submission:

“… Dr. Chiang concluded that the MRI showed no prolapsed disc of significant size.  Whilst there were moderate limitation in the SLR test and mild limitation in the end of range of movement of back, the more objective findings were:

(a) No significant intersegmental stiffness and muscle spasm of the low back;

(b) The Laseque’s tests were normal;

(c) There was no obvious motor neurological deficit in the lower limbs and reflexes were normal;

(d) Satisfactory lumbar lordosis; and

(e) Even with described ache at the end of range of back motion, the overall range of movement of back was still considered as reasonably preserved.

…”

(d) Dr. Chiang had prepared a supplemental report in response to the medical report of Dr. Chun filed by the Defendants.  However, he failed this Court in a number of respects.  Again, I agree with the following observations of Mr. Lim:

“11. Dr. Chun’s report was sent to Dr. Chiang for his comment.  Firstly Dr. Chiang stated that the percentage of impairment were quite similar and he maintained the 3% permanent impairment.  As regards Dr. Chun’s suggested sick leave of 3 months Dr. Chiang opined that soft tissue injuries vary in the extent of involvement.  With more significant involvement, the sick leave period could be up to 6 to 9 months.  Since the Plaintiff had multiple physiotherapy treatment sessions Dr. Chiang opined that the Plaintiff should have about 6 to 9 months’ sick leave.

12. What is most surprising is that Dr. Chiang did not deal with Dr. Chun’s opinion that the Plaintiff had only suffered a back contusion and the bulge was age related, it was not caused by the accident.  This is the major divergence of opinion between the 2 experts.  Dr. Chun had stated categorically that this was not a disc prolapse but a bulge.  He cited high authority for the proposition that bulging of disc is age related and not caused by trauma.  This is the most significant aspect of Dr. Chun’s report and if accepted by the Court will cut down the Plaintiff’s multi-million dollar claim very substantially.  Dr. Chun’s report of 14 June 2004 was sent to Dr. Chiang for his comment.  Why did he not deal with this point which is of utmost importance?  We submit that Dr. Chiang was trying to dodge the issue.  He knew perfectly well that Dr. Chun’s view that the MRI showed features of early degenerative change and the bulge was age related.  In fact this view is supported by Dr. Kenneth Ho’s report (p71) stating ‘There was posterior herniations of the degenerated lower lumber disc, slight posterior bulging ……”.  We submit that for the foregoing reason Dr. Chun’s opinion should be preferred.”

(e) Although the surveillance reports and the video tapes do not show that the Plaintiff could run quickly, jumped up and down or carried heavy objects, he, no doubt, travelled within the city in the manner of an ordinary man without any obvious difficulty.  He walked through the streets, carrying his handbag.  He went up and down the stairs.  He moved in faster step paces when crossing the traffic.  All the “current complaints” by the Plaintiff, like episode paraethesia in lower limbs during walking, back pain, and so forth can hardly be observed at all.

(f) Finally, the Plaintiff also complained or estimated that he could only carry objects of about 1 to 2 pounds.  In my view, it can hardly be justified by any of the medical evidence before this Court.  Other than an exaggeration, I do not think that I can come to any other conclusion on the part of the Plaintiff.

Resumption of pre-injury work?

11. Having decided to prefer the opinion of Dr. Chun, it follows that the Plaintiff can resume to his pre-injury work with minimal discomfort.

12. I should further add that, the major killer point of the Plaintiff is that he can hardly justify that he is unable to return to his pre-accident work because even his own medical expert could not help him.  Dr. Chiang commented in his 1st report that:

“4) In taking a combine view from the available reports and the current examination, Mr. Ng had likely suffered a musculotendinous strain of the back, or a mild disc prolapse.  The diagnosis could not be definite, as there appeared to be no obvious documented findings, for example, repeated recording of leg symptoms, or a recorded sizable disc protrusion in an MRI performed at the early stage after the accident.

At this stage, when considering the more objective part of the examination findings, and the MRI findings, I think there may not be significant back symptoms on performing daily activities.  However, there might be a decrease in the end range endurance with continuous strenuous activities, e.g. repeated handling of heavy objects or continuous working in stressful postures.

5) The condition had likely reached a stabilized stage, and further active regular treatment is unlikely to be required.

6) ……

7) With consideration from the more objective part of the examination findings, and the MRI findings, he could be considered as able to work in the pre-injury type of job, but with a mild to moderate reduction in his capacity.

8) It is difficult to interpret the multiple levels of very mild posterior disc bulges as described in the MRI findings.  Since these MRI findings are not uncommon in the middle age group, these findings might not represent a more significant level of degeneration than the average individuals in the same age group.

9) ……”

Mr. Chung attempted to save the Plaintiff’s position by explaining that Dr. Chiang meant only “pre-jury type of job”, NOT the “pre-injury job”.  However, with respect, in our context, I really cannot distinguish the two terms as suggested by Mr. Chung.

13. The Plaintiff himself also attempted to explain to me why he could not resume the work and had decided to sell the business.  Mr. Chung summarized the position in his closing submissions:

“ 3. It is submitted that the Plaintiff has in his evidence stated in an unequivocal manner that he could not resume to his pre-injury work as he is no longer fit to perform the larbour intensive part of lifting and moving heavy parts of the air-conditioning systems and he had to hire other workers to assist in the installation of the air-con systems.  That is to say, although the Plaintiff could return to the air-con systems installation business, he would not be able to handle the actual installation of the heavy parts of the air-con systems.

4. It is evidence that the Plaintiff could not carry heavy objects (5Kg bag of rice) and could not squat down to work …

5. The fact is that the Plaintiff has lost a lot of business as a result of the injury and he sold his business in June 2002.  It is apparent that the Plaintiff, being the proprietor of his air-con systems installation business, would not be able to continue to operate in the same mode and efficiency as he had done prior to the injury.

6. The Plaintiff has failed to find a job other than the insurance agency job.”

However, without going so far as to the extreme that the Plaintiff lied to the Court, I do not consider that his case is supported by the medical evidence objectively.  He did exaggerate his injuries and on balance of probabilities, he can resume to his pre-jury job.  The selling of his business is therefore a matter of his own decision.

14. I now turn to the damages to be assessed.

PSLA

15. Mr. Chung suggested $200,000 for pain, suffering and loss of amenity.  Mr. Lim argued that a sum of $80,000 was appropriate.  The victims in the various authorities relied upon by Mr. Chung suffered more impairment than the Plaintiff herein.  They are therefore not preferred.  On the other hand, Chiu Wing Sze Karby v Chan Ying Wai and Chan Ying Kit, HCPI No. 616 of 1999 and Chan Siu Youn v Ng Kam Man and others HCPI 533 of 1999 are relatively appropriate to the present case so far as the extent of damages are concerned.  I would award a sum of $100,000 to the Plaintiff.

Loss of pre-trial earnings

16. The Plaintiff deposed that he earned about $25,000 per month before the accident.  He told this Court that the monthly salary came from the profit of the business, a monthly salary and withdrawal of money in the bank account from time to time for his own use.  Mr. Lim told me that there was no cogent evidence to prove that.  Upon consideration, I am prepared to accept the Plaintiff’s case on this point on balance.  The Plaintiff operated the business of air-conditioning business commencing from 1989.  He was the sole proprietor.  It was a small business.  In my experience, it is true that the boss in small business in Hong Kong treat himself and the business the same even if the latter is a separate legal entity in the form of corporation, not to mention a business held in the name of the Plaintiff.

17. On the other hand, as far as the necessary sick leave for the Plaintiff, Mr. Chun commented 3 months’ while Mr. Chiang replied 6 to 9 months.  As I have indicated that the evidence of Mr. Chun is preferred, the loss of pre-trial earnings for the Plaintiff is therefore $75,000 ($25,000 x 3).

Loss of post-trial earnings

18. There will be no loss of post-trial earning for the Plaintiff in my judgment.

Loss of earning capacity

19. As a matter of law, I agree with the submission by Mr. Chung:

“21. According to Moeliker v Reyrolle and Co Ltd [1977] 1 All ER 9, 16 (CA), the consideration of loss of earning capacity should be made in two stages: (1) Is there a “substantial” or “real” risk that a plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must access and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materializes, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well-paid job.”

(paragraph 21 opening submission of Mr. Chung)

20. As a matter applying the above principle to our case, Mr. Chung said that $100,000 was appropriate.  Mr. Lim persuaded me that the award under this head should be a modest global sum by reason of the back contusion.  It should be nothing more than $10,000.

21. In principle, I agree with Mr. Lim that only a normal sum should be awarded.  Having said that it is still true that there is 1% loss of earning capacity in the assessment of Dr. Chung.  I will therefore award $50,000 to the Plaintiff.

Special Damages

22. The Defendants agreed the followings:

		$
a.	Repair costs of vehicle	9,800
b.	Motor Survey report fee	750
c.	Medical costs	9,270
		19,280 =====

23. The followings are disputed by the parties:

		$
d.	Total sum of Physiotherapy-"Cosmo Physiotherapy Centre"	35,560
e.	Total sum of Physiotherapy-"City Physiotherapy Centre Ltd."	9,930
f.	Total sum of Physiotherapy-"Lam Sing Wan Orthopaedics"	31,650
g.	Total sum of Physiotherapy-"Y.F. Chau Physiotherapy Clinic"	13,760
h.	Total sum of Physiotherapy-"Quality Healthcare Physiotherapy"	1,280
i.	Total sum of Medical consultation including Chinese herbalists	2,213
j.	Total sum of traveling expense by taxi	20,000
k.	Tonic food	38,286
		152,679 =======

Mr. Lim commented that they were grossly excessive and had to be substantially discounted.  A sum of $8,000 was said to be reasonable.

24. In my view, the starting point is that: Objective medical evidence has suggested only a minor injury.  However, one should not forget that these are out of pocket expenses incurred by the Plaintiff to cure his pain concern and ability to return to work.  In the end, he is the victim in the accident.  I therefore have concluded that half of the disputed items should be paid by the Defendants.

Conclusion

25. In summary, I award the following damages to the Plaintiff:

		$
(a)	PSLA	100,000.00
(b)	Loss of pre-trial earnings	75,000.00
(c)	Loss of earning capacity	50,000.00
(d)	Special damages	96,159.50
		321,159.50

26. For general damages, there will be interest at the rate of 2% p.a. from the date of writ herein to the date hereof.  As to special damages, interest will be calculated at half of the judgment rate from the date of the accident to the date hereof.

Costs

27. I do not have the benefit of hearing argument from both learned Counsel on the question of costs.  Nonetheless, there appears to be no reason why costs should not follow the event.  Further, having awarded damages to the Plaintiff well within the jurisdiction of the District Court, I believe that the costs incurred herein should only assessed at the corresponding scale.  In the circumstances, there will be an order nisi that the Defendants shall pay costs of the Plaintiff in the assessment herein on the District Court scale, on part-and-party basis, to be taxed if not agreed.