BIBI ZAINAB v. CHAU YUNG WUN t/a 成豐車房

DCPI 714/2020

[2023] HKDC 1655

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 714 OF 2020

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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 fell onto the ground after a trolley belonging to the defendant struck her from behind.

2.  Interlocutory judgment was entered against the defendant on 2 July 2020 leaving damages to be assessed.

3.  The Notice of Appointment for Assessment of Damages was served on the defendant on 25 August 2023 by post at the address stated on the writ.  Affirmation of service was filed at about 9 am on 30 October 2023.  The court had also on 17 October 2023 sent a notice of hearing for the assessment of damages to the defendant.

4.  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

5.  The plaintiff herself was the only person who testified at the hearing.  She adopted as evidence in chief her witness statement filed herein.

6.  The plaintiff was born in 1979. At the time of the accident on 17 July 2017 where she sustained personal injuries (“the Accident”), she was aged 37.  She was a housewife and remains to be a housewife all along.

7.  At about 5 pm on 17 July 2017, the plaintiff was on her way home after visiting her brother-in-law.  She had to walk past the defendant’s garage (“the Garage”).  She noticed a person employed by the defendant was working there and was maneuvering what appeared to be a trolley.  Although the plaintiff said she had prudently moved to the side of the curb in order to avoid any contact, however, as she was walking past the Garage, the defendant’s trolley struck her from behind and she fell onto the ground and was then in immense pain immediately.  After the Accident, the plaintiff was sent to the Accident & Emergency Department of United Christian Hospital (“the Hospital”) for treatment.  Medical examination revealed tenderness over right elbow and right wrist with deceased range of movement.  X-ray showed fracture radial head of right elbow.  She was admitted to orthopaedics ward for further treatment.  Emergency operation was performed on 26 July 2017 with radial head replacement and ligament repair of the elbow.  Post-operation she was given a hinged elbow brace for protection.  Her right scaphoid fracture was treated conservatively with a right thumb spica cast.

8.  Follow up treatments at the Hospital’s clinics at post-operative 6 weeks time revealed marked elbow stiffness.  She was then readmitted to the orthopaedics department on 5 September 2017 for manipulation under general anaesthesia.  After this procedure, she received vigorous training at the occupational and physiotherapy department for about two years.  Subsequent x-ray showed good bony union of the right scaphoid and she had restored normal wrist range of motion without pain.  Her elbow range of motion gained gradual improvement.

9.  She was last seen at the out-patient clinic on 26 October 2018 with no elbow pain or instability. Radiograph showed good bony alignment and no loosening of the radial head implant.  She was granted sick leave from 11 August 2017 to 17 October 2017, 12 December 2017 and 14 September 2018 intermittently.

10.  In her witness statement, the plaintiff added that she has permanent and significant visible scarring on her arm as a result of the surgeries conducted due to the Accident.

Expert evidence

11.  By an order dated 5 January 2022, the defendant is deemed not to adduce expert medical evidence.  By an order dated 6 April 2022, expert medical evidence is limited to one orthopaedic expert for the plaintiff, and the medical report made by Dr Choi Sum Hung for the plaintiff dated 17 September 2022 be adduced as evidence without calling the maker at the assessment hearing.

12.  Dr Choi interviewed the plaintiff on 4 May 2022, ie approximately 4 years and 10 months after the Accident. Examination of the plaintiff’s upper limbs showed no swelling or discolouration in her right upper limb and her nails were normal.  The measurement confirmed there was no muscle wasting in her right forearm and right arm.  The range of motion of her right wrist was comparable to that of her left.  It was noted there was mild weakness of the power grip of her right hand.  X-ray of the right elbow showed a well placed radial head prosthesis with no sign of loosening and the right elbow joint is congruent with no sign of degeneration.  Further, x-ray of the right wrist showed her right scaphoid fracture had healed well with no sign of malalignment and no degeneration in her right wrist joint.

13.  Dr Choi agreed that in the absence of a history of prior injury to her right upper limb, thefracture of her right radial head and right scaphoid was related to the fall injury arisen from the Accident.  Based on subsequent investigations, including CT Scan of her right elbow and right wrist, Dr Choi confirmed the plaintiff has sustained comminuted fracture of the radial head of her right elbow and right scaphoid.  He considered the treatment given by the Hospital was appropriate.  He opined the right elbow stiffness after the right elbow surgery was not an uncommon complication and after manipulation under anaesthesia, her right elbow range of motion has improved significantly.  Despite the plaintiff’s complaint of significant pain and functional deficit of her right upper limb, Dr Choi commented that, based on the hospital progress notes, the clinical assessment of the Hospital and his examination, besides mild weakness of grip, there was almost full range of motion of her right elbow and right wrist with no muscle wasting.  Dr Choi considered that combining the impairments of the upper limb arising from her healed right scaphoid fracture and her right elbow radial head fracture, there was about 4% whole person impairment.  He opined the sick leave duration up to one year is reasonable and appropriate considering the extent of injury and the necessary rehabilitation.

14.  Dr Choi was of the view that the plaintiff would be able to resume her pre-morbid functional level of a housewife with mild adjustment. 

The Law

15.  The relevant principles in assessing the creditability of witnesses are summarised by DHCJ Eugene Fung SC in Hui Cheung Fai And Another v Daiwa Development Ltd and Others [2014] HKCFI 650.  At paragraphs 76 to 83, the learned DHCJ Fung SC states,

“76.  In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

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 at 431 (Lord Pearce).  It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

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 336at §§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).”

16.  With these principles in mind, I turn to the facts of the case.

Factual findings

17.  The plaintiff’s testimony is not subject to any challenge as the defendant has not been present in these proceedings.  The plaintiff gave testimony in a straightforward manner.  She indicated there is still some pain when the arm is still, in movement and when she lies in bed on the side at night.  There is still stiffness in her right arm and she experiences numbness when she wakes up in the morning.  She also mentioned that occasionally there is burning sensation in her right palm, which is close to her wrist.  Notwithstanding the aforesaid, the plaintiff accepted the extent of pain is significantly reduced at the time of the medical examination with Dr Choi (May 2022) compared to when she first got injured (July 2017), and that the level of pain as at the date of the assessment hearing (October 2023) is further significantly reduced compared to the date of the medical examination (which is approximately 1.5 years from the date of assessment hearing).  As to the scar that is not mentioned in the medical notes and the expert report, the plaintiff has shown the position of the scar in court. The court notes that the scar is on her right arm, just above the outer side of her elbow.  I accept that was caused by the surgeries due to the Accident.  

18.  Regarding medical expenses, in court, the plaintiff confirmed she has spent only $400 on public hospital treatments while she has not visited any private medical practitioners.

19.  Overall, I find the plaintiff’s evidence credible and reliable broadly and I accept her evidence.  Separately, I also accept Dr Choi’s evidence in his Expert Medical Report.

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

PSLA

21.  The plaintiff claims a sum of $400,000 for damages for PSLA.  Whilst Mr Li, Counsel for the plaintiff, has provided the court during the assessment hearing with a more recent judgment Yu Chun Kit v Wong Wing Yau (formerly trading as Viewbond Cargo Service Co) [2021] HKDC 729, which shows that the starting point of PSLA for the Serious category as of July 2017 was $530,000[1], Mr Li fairly accepted the plaintiff’s injury was less serious than those defined under the Serious Category and he referred me to the following cases on PSLA.

22.  In Chow Wai Ming v Chan Yuk Charm (unrep, HCPI 111/1996, 13 October 1999), the plaintiff suffered from comminuted fracture of the proximal humerus of the right shoulder.  He suffered from deformity of the humeral head causing bony impingement on tendon of the shoulder, residual pain and loss of the strength.  The experts assessed there was an 8% impairment of the whole person.  The court awarded HK$300,000 for PSLA.

23.  In Lo Yuen Chong v IWS Environmental Technologies Ltd (unrep, HCPI 1070/2014, 28 October 2016),the plaintiff suffered from comminuted fracture of the distal elbow with displacement of fracture site in cast on first follow-up.  Open reduction and internal fixation was performed.  She also suffered from a mild dorm carpal tunnel syndrome.  There were also scars left on the plaintiff’s left wrist.  The plaintiff’s main complaints were about the residual on and off pain in her left wrist.  There was no objective sign of median nerve palsy nor any detectable sensory loss or muscle wasting.  The plaintiff enjoyed satisfactory wrist improvement but its flexibility is hindered due to a slight lag in radial and ulnar deviation.  The court awarded a sum of $300,000 for PSLA.

24.  In Fung Bo Ha v Tang Tik Chung & Anor (unrep, HCPI 1368/1999, 29 June 2001), the plaintiff suffered from comminuted fracture of distal region of right fibula, fracture of great tuberosity of head of the right humerus, deep laceration over lateral aspect of right ankle, multiple abrasions of forehead, bruising and swelling of right shoulder, multiple abrasions of upper abdomen, right calf and knee as well as right ankle injury complicated by wound infection and skin flap necrosis.  Six operations were performed.  The plaintiff still walked with difficulty and needed to rely on walking stick afterwards.  She was awarded $600,000 for PSLA.

25.  After due consideration of the authorities, and having considered, inter alia, that the nature of the plaintiff's injuries and the duration of her healing process, and Mr Li in his verbal Closing Submissions accepted the facts of this case are more akin to those in Chow Wai Ming and Lo Yuen Chong (supra)rather thanthose in Chow Wai Ming and Fung Bo Ha as stated in his written Opening Submissions, it appears to me Lo Yuen Chong (supra) is a more suitable comparable among all and I assess that PSLA should be $300,000.

Loss of Earning Capacity

26.  In the Statement of Damages, the plaintiff claims loss of earning capacity in the sum of $100,000 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 woman as a consequence of the accident.  However, as the plaintiff has all along been a housewife, it is difficult to understand why and how this loss arises.  Mr Li, in his written Opening Submissions, reasonably stated that the plaintiff abandons her claim under this head of damages.

Special damages

27.  The plaintiff claims the following special damages:-

(a)	Medical expenses	$50,000
(b)	Tonic food	$5,000
(c)	Travelling expenses	$2,000
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	Total:	$57,000
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28.  Mr Li submits that whilst the plaintiff has produced no receipts for the claimed expenses, considering the nature and extent of her injuries, the claimed amount of $57,000 appears to be reasonable in a broad-brush approach.

29.  In respect of medical expenses of $50,000 under this head of damages, as confirmed by Mr Li during his verbal Opening Submissions, the amount should be premised upon the treatments the plaintiff received at the public hospital and those by the private medical practitioners, which involved 3 to 4 times according to the expert medical report[2]. However, as mentioned above, the plaintiff during the assessment of damages hearing confirmed she had only incurred $400 on public hospital treatments and had not consulted any private medical practitioners at all.  Whilst the testimony of the plaintiff in court in relation to private medical treatments appears to differ from what is stated in the expert medical report, given that the expert medical report has no statement of truth of the plaintiff and I consider the plaintiff’s oral evidence on this aspect was given in straightforward, credible and reliable manner, I accept the plaintiff has only incurred medical expenses in the total amount of $400 under this head of damages.

30.  The plaintiff claims a sum of $5,000 for tonic food, of which the plaintiff cannot produce any receipts.  I accept that 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.  Having considered all the circumstances, I consider the amount of $5,000 is on the high side and I assess that a reasonable sum should be $2,500.

31.  The plaintiff’s case on travelling expenses appears to be for follow up medical treatments, which is based upon the number of visits to the Hospital and clinics.  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 $2,000 was reasonable and I would allow the claim amount in full.

32.  Accordingly, the total amount of special damages should be: $400 + $2,500 + $2,000 = $4,900.

Future Medical and Other Treatment Expenses

33.  In the Statement of Damages, the plaintiff also claims all future medical and other treatment expenses whether contingency, continuing or otherwise.  However, there is no particulars at all for this head of claim.  Nor is there any evidence showing what future medical and other treatments are reasonable and necessary.  In particular, considering Dr Choi opined that the plaintiff has achieved satisfactory recovery from the injury, which tallies with the other medical records, and that Dr Choi has not indicated the plaintiff requires any future medical treatments, it appears there is no sufficient evidence or basis for this head of damages.  It is for these reasons Mr Li at paragraph 13 of his written Opening Submissions stated that the plaintiff abandons this head of damages. 

Summary

34.  The plaintiff’s damages should be assessed as follows:-

		HK$
(a)	PSLA	$300,000
(b)	Special damages	$4,900
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	Total:	$304,900
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Interest and costs

35.  Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ. Interest on special damages will be awarded at half the judgment rate from the date of the incident.  The plaintiff's solicitors are directed to calculate the amount of interest to be included in the judgment.

36.  I make a costs order nisi against the defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.  As the plaintiff is legally aided, his own costs shall be taxed in accordance with the Legal Aid Regulations.  The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within the 14-day period.

37.  Lastly, I thank Mr Li for his able assistance.

[1] See paragraph 34 of the Judgment

[2] Paragraph 14 of Dr Choi’s Solo Expert Report