LAM WING MING v. DRAGAGES ET TRAVAUX PUBLICS (HK) LTD. AND ANOTHER

1995, No. P.I. 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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J U D G M E N T

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1. By a Consent Order dated 16 August, 1996, the parties agreed that Interlocutory Judgment be entered in favour of the Plaintiff with damages to be assessed. The parties appeared before me for assessing such damages. This is the Judgment on that issue.

Introduction

2. The Plaintiff was a taxi driver. The 2nd Defendant ("D2") was the driver of a private car. In the early morning on 14 August, 1994, the Plaintiff was driving his taxi in the vicinity of the entrance of the Eastern Cross Harbour Tunnel heading towards Kowloon. D2 was driving his car in that vicinity heading towards Hong Kong. D2's car suddenly lost control and it went across the double white line dividing the two-way traffic and collided head-on with the Plaintiff's taxi. The Plaintiff was injured as a result.

Plaintiff's Injuries and Treatment

3. The Plaintiff was born in May, 1954. He was 40 years old at the time of the accident and 44 years old at the time of the hearing. According to the Statement of Claim, he suffered the following injuries:-

(a) 15 cm laceration at the lower lip of the mouth;

(b) pain at left lower back;

(c) superficial abrasion at left knee;

(d) fractures of the transverse process of the 2nd, 3rd and 4th Lumber vertebrae, with bilateral simple renal cysts.

4. The Plaintiff was taken to the Tang Shiu Kin Hospital where he received stitches to his lip and was discharged. However, he complained of continued pain in his left back and he was admitted to the Price of Wales Hospital on 16 August, 1994 for further examinations and treatment. He was discharged after two days and thereafter attended physiotherapy treatment.

5. The Plaintiff claimed that he continued to suffer the following injuries:-

(a) chronic pain in the left back;

(b) tenderness over the lower back in the left paraspinal region centered about the 3rd lumbar vertebra;

(c) some degree of degenerative changes with normal disc spaces and alignment of the lumbo-sacral spine;

(d) scars on the upper lip and back.

Credibility of Witnesses and Findings of Fact

6. This will be dealt with under the separate headings relating to the factual witnesses and the medical experts respectively.

(1) Factual Witnesses

7. There were two factual witnesses, the Plaintiff and a Mr. Choi Hang Choi.

8. The Plaintiff testified as follows. He was born in May, 1954 and was married with 3 children aged 19, 17 and 16 respectively at the time of the hearing. As a result of the accident, he suffered the injuries set out above. He was given sick leave from 14 August, 1994 to 27 October, 1994 during which he was unable to work at all. After the sick leave, he was still unable to work for another 2 weeks.

9. He was a night shift taxi driver. Before the accident, he was able to earn on average $350 per day. He enjoyed good health and worked 7 days a week. He rented a taxi from 5 p.m. to 5 a.m. and worked about 10 hours per shift. His working pattern before accident was as follows. Every day he started work at about 5 p.m. and worked for about 5 hours before having a one-hour meal. He then worked for another 2 to 3 hours before having a short break. After that, he would return to work until about 4:30 a.m.

10. After the accident, because of his back pain, he was unable to work until after the end of October, 1994. Since mid-November, 1994 and up to now, he could only work for 5 to 6 days per week and about 5 to 7 hours per shift. After he started work, he would have to rest after about 1 hour. He would take a short walk before returning to work for another hour or so. He would have to rest again. These breaks last for about 15 minutes. After that, he would have a meal for about an hour and return to work for about 1 hour when he had to finish work at about 2 or 2:30 a.m. As a result, his income is now reduced to about $290 per day.

11. The Plaintiff's testimony differed from the Amended Statement of Special Damages regarding the extent of his partial loss of earnings from November, 1994 to May, 1995. In his testimony (which adopted his Chinese witness statement), the Plaintiff did not mention that he could only work 2 to 3 days per week during that period. However, this was corrected by the Plaintiff when he was cross-examined and he explained that immediately after he resumed work, he was only able to work 1 to 2 days per week and this was increased to 2 to 3 days after about a month. He was able to increase that to about 5 to 6 days a week about half a year afterwards..

12. Mr. Choi testified as follows. He has been working as a night-shift driver until the last few months. He came to know the Plaintiff because they were both night shift drivers and lived near to each other. When Mr. Choi was a night shift driver, he used to work about 10 hours per day and earned about $500 per shift.

13. Ms. Ng for the Defendants did not attack the Plaintiff's credibility either in her cross-examination or submissions. She rather criticized him as psychologically over-reacting to the injuries. In other words, the Plaintiff has in fact suffered minimal permanent disability and the "disability" he thinks he is suffering is only his subjective feeling.

14. Ms. Ng submitted that it is trite law that when assessing the quantum of damages, the correct legal test to be adopted by the Courts should be what a reasonable man would suffer, and not what the plaintiff suffered. To put it in another way, if a reasonable man would need to rest for 10 days for a particular kind of injury, the plaintiff cannot validly argue that he needs to rest for longer than 10 days merely because he is more sensitive to pain, or because of other peculiarity in his subjective feeling or personality.

15. With respect to Ms. Ng, I rather consider the applicable test to be what is conveniently referred to as the "thin skull" rule. Ms. Ng submitted that the "thin skull" rule only applies to any pre-existing physical deficiencies of a plaintiff and not to the plaintiff's personal disposition or mental condition. As stated above, Ms. Ng put it on the basis that her proposition is trite law and so she did not consider it necessary to cite any authority in support.

16. There can be no doubt that the "thin skull" rule applies in relation to the physical condition of a plaintiff. This point cannot be better put than what is stated in McGregor on Damages (1997) 16th ed., para. 202:-

"It has never been seriously disputed that an admitted or established wrongdoer is liable for any increased injury to his victim by reason of an abnormal physical susceptibility. Kennedy J.'s statement of this principle in Dulieu v. White [1901] 2 K.B. 669, 679 is well known:-

"If a man is negligently run over or otherwise negligently injured in his body it is no answer to the sufferer's claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart."

Or in the more concise words of Lord Wright in Bourhill v. Young [1943] A.C. 92, 109-110: "If the wrong is established the wrongdoer must take the victim as he finds him." The absence of decisions in the reports on this point is only proof of the universal acceptance of the principle, ....

No doubt was cast upon the correctness of this principle by their Lordships in The Wagon Mound [1961] A.C. 388.".

Similar remarks can be found in Winfield & Jolowicz on Tort (1994) 14th ed., p. 165; Linden: Canadian Tort Law (1993) 5th ed., at pp. 324-34 and Kemp & Kemp: The Quantum of Damages (1997), Vol. 1, para. 2-002.

17. Contrary to Ms. Ng's submissions, the above principles have been applied, both in the U.K. and Canadian Courts, to quite a number of cases involving the plaintiff's mental condition or personal disposition: see the cases referred to in Linden: Canadian Tort Law, at pp. 330-33. In view of the above, with due respect to Ms. Ng, I find her submissions on this point unsubstantiated.

18. Having considered his testimony, I do not find any basis for concluding that the Plaintiff was not a truthful and reliable witness. I also do not find the injuries or the disabilities referred to in his testimony to have been exaggerated or unreasonable.

19. Ms. Ng has no criticism as regards Mr. Choi's testimony. I also find him to be a truthful and reliable witness.

20. I therefore find as a fact that the Plaintiff has suffered the following:-

(a) the injuries and physical disabilities he described to the doctors and in his testimony;

(b) he was unable to work at all from 18 April to sometime after the end of October, 1994;

(c) the Plaintiff did not mention in his testimony that he worked on 2 or 3 days per week during the period from mid-November, 1994 to the end of May, 1995. This, however, was pleaded in the Plaintiff's the Amended Statement of Special Damages. I consider that the Plaintiff merely omitted to mention his working ability from about mid-November, 1994 to May, 1995. He has corrected this in cross-examination. I find that he could only work for 2 to 3 days per week during this period;

(d) from June, 1995 to the date of hearing, the Plaintiff was only able to work on 5 to 6 days per week as he testified.

(2) Medical Experts

21. There is in fact very little difference between the evidence of the medical experts for the Plaintiff and those for the Defence. All the doctors agreed that the Plaintiff suffered fracture injuries to the transverse processes of his spine which has united well. They also agreed the present complaint of the Plaintiff is related to the injuries to the "soft tissues" around these fractured transverse processes. The area over which they differed was the extent of residual injury the Plaintiff still suffers due to these "soft tissues" injuries. The medical expert witnesses for the Plaintiff were Dr. Brian Holmes Choa and Dr. David Cheng Hung Fai whereas those for the Defendants were Dr. Philip Wen Chee Mao and Dr. Arthur Chiang.

22. Because of the significant "soft tissue" damage to his lumbar area, Dr. Brian Choa assessed the Plaintiff to have suffered a 5% permanent impairment to his whole person. He opined that it is plausible that the "soft tissue" damage is particularly liable to be aggravated by the Plaintiff's job. He assessed the long term loss of earning capacity to be no less than 15%. Dr. David Cheng concurred with Dr. Choa regarding those assessments.

23. On the other hand, Dr. Arthur Chiang carried out a number of tests on the Plaintiff in his clinic. As a result, he assessed the permanent impairment to be 5% and the loss of earning capacity to be at 3%. Dr. Philip Mao assessed the Plaintiff's impairment of the whole person to be 2% and the loss of earning capacity to be 3%.

24. After having heard the respective medical experts, I prefer the testimony of the Plaintiff's medical experts. In particular, I accept the explanation of Dr. David Cheng that the Plaintiff's chronic back pain cannot be accurately assessed in a clinical setting because the time of the various tests performed on him under such conditions lasted for a relatively short time. I also accept his explanation that that was the reason why Dr. Arthur Chiang was unable to detect the back pain the Plaintiff complained of.

25. I note that none of the medical experts, including the Defendants' experts, found the Plaintiff to be faking his condition, or was uncooperative.

Pain and Suffering and Loss of Amenities of Life

26. Ms. Lau for the Plaintiff submitted that the Plaintiff's injuries fall within the middle of the "serious" category referred to in the Lee Ting Lam case. The range of award under this head for these cases is $400,000 to $540,000 (equivalent to $460,000 to $620,000 after a 15% increase for inflation). She further referred to the following cases which she submitted relate to similar injuries, these case are, Cheng Sam Pak v. A-G, Civ. App. No. 247 of 1997; Lai Wah Wai v. Casto Testing Centre Ltd., PI No. 422 of 1995 and Li Yuen Hung v. Yau Yuk Lan, PI No. 504 of 1995. She submitted that the appropriate award in this case is therefore $540,000.

27. On the other hand, Ms. Ng for the Defence submitted that the injuries do not fall within such category. She rather considered that the facts in Yu Kwong Shing v. Color Cells Far East Ltd., HCA No. 3492 of 1993 are similar to the present case and therefore the award made in that case should be adopted here. She submitted that the appropriate award should be $120,000.

28. Having considered the extent of the Plaintiff's injuries and disabilities as disclosed by his testimony and that of the Plaintiff's medical experts, I agree with Ms. Lau's submissions and therefore make an award of $540,000 under this head.

29. Ms. Lau did not invite me to make any additional award for the Plaintiff's loss of his teeth or as to his reduced sex life. I do not consider any additional award should be made in the circumstances of this case.

Loss of Earnings

30. In view of the findings of fact made above, I agree that the Plaintiff's pre-hearing loss of earnings should be as set out in the Amended Statement of Special Damages (as further amended by Ms. Lau in her final submissions). The Plaintiff's average daily income at the time of accident was $350. The Plaintiff's post-accident average daily income was $290. The average daily income which he would have been able to earn if he had not been injured was $500. The median daily income if he had not been injured is therefore $425 (($350 + $500) ÷ 2) whereas the median daily income of his actual daily income is $270 (($250 + $290) ÷ 2).

31. The Plaintiff's loss of earnings from the date of his injury to 6 July, 1998 is as follows:-

Loss of Future Earnings

32. I also agreed with the Plaintiff's calculations under this head. I consider that a multiplier of 9 is appropriate. The estimated rate of loss is $210 per day ($500 - $290) for 5.5 days per week and $500 per day for 1.5 days per week. The weekly loss is $1,905. The total award is therefore $891,540 ($1,905 x 52 x 9).

Loss of Earning Capacity

33. Since the Plaintiff has at all times been self-employed, Ms. Lau accepted that it would be difficult for her to argue that any award should be made under this head. I consider she was right in making such concession and do not consider that any award should be made.

Other Miscellaneous Special Damage

34. The following items of special damages are agreed by the Defendants (see the Defendant's Answer to the Amended Statement of Special Damages: p. 23, Bundle):-

(a) medical expenses in the total sum of $4,723;

(b) travelling expenses in the total sum of $820;

(c) nutritious food in the sum of $2,000.

35. The total award is therefore $7,543.

Conclusion

36. To sum up, the following awards are made in favour of the Plaintiff in this assessment of damages:-

(a) $540,000 for pain and suffering and loss of amenities;

(b) $329,475 for loss of earnings up to date of hearing;

(c) $891,540 for loss of future earnings;

(d) $7,543 for miscellaneous losses.

Interest

37. Interest for the award on pain and suffering and loss of amenities shall be at 2% per annum from the date of Writ to the date of this Judgment. Interest on pre-trial loss of earnings and miscellaneous special damages shall be at 5.75% per annum from the date of accident to the date of this Judgment.

Costs Order Nisi

38. There is no apparent reason why a costs order nisi should not be made pursuant to O. 42 r. 5B(6). The usual rule is that costs are to follow the event. There is no material before me for the usual rule to be departed from. I therefore make a costs

order nisi that the costs of the assessment be paid by the Defendants to the Plaintiff to be taxed if not agreed.

(Andrew Chung)

Master