LEE CHIT MING v. MAN SIU HUNG

CACV 91/2017

[2018] HKCA 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 91 OF 2017

(ON APPEAL FROM HCPI 1242/2014)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  After hearing counsel, we dismissed with costs the defendant’s appeal from Master Caroline Chow’s assessment of damages dated 15 March 2017 arising out of a personal injuries claim. We now give our reasons.

The facts

2.  The plaintiff, a taxi driver, was 32 years old when the stationary taxi that he was driving was hit from behind by the defendant’s vehicle on 1 August 2013.  He sprained his neck in the accident, and experienced a reduced range of neck movements and decrease in limb power and sensation of his bilateral upper limbs.  He was hospitalised from 2 to 5 August 2013, and was given sick leave from 1 August 2013 to 23 December 2013.  During his sick leave, he attended 15 sessions of physiotherapy treatment, and between 12 December 2014 and 6 February 2015, he attended 7 further sessions of physiotherapy treatment.  In the meantime, he suffered from mood disturbance and depression for which he attended a total of 14 sessions of psychiatric treatment from 19 November 2013 to 2 September 2015.

3.  By the time he attended a joint medical examination by the respective experts retained by the parties, that is, Dr Lam and Dr Cheng, on 23 June 2015, the plaintiff was, according to the joint medical report, still complaining of on and off neck pain, especially on sustained bending of the head, paraesthesia over the neck, and a lack of concentration.  By then, he had resumed his pre‑accident job of taxi driving, and the doctors reported that he managed his daily activities and work without problem, but needed occasional breaks and sometimes had to refuse long journey fare.  Both doctors agreed that the plaintiff had some residual pain.  On examination, it was found that the plaintiff’s neck was in a fairly healthy state with a satisfactory range of movements except for a mild decrease in rotation, and that there was mild tenderness over both upper trapezius areas, with muscle guarding but no muscle spasm.  The two doctors commented that “it is possible/probable that some residual discomfort/pain may be present after a sprain”.  Both experts gave the diagnosis of a sprained neck/soft tissue injury to the neck, and attributed the accident as the cause of the injury.  They both agreed that the treatment received by the plaintiff was standard and appropriate, and the plaintiff had reached a state of maximal medical improvement.  The sick leave granted was also accepted as appropriate.

4.  Both experts took the view that the plaintiff was capable of resuming his pre‑accident job as a taxi driver, with minimal/mild reduction in work capacity.  Dr Lam, whose view in this regard the master preferred (this was not challenged on appeal), considered that it was necessary for the plaintiff to resume work initially on a part‑time basis with shorter working hours, gradually stepping up to more normal hours and full‑time work.  And even after resumption of full‑time work, the plaintiff might still need slightly more short breaks for rest or stretching after prolonged driving, since activities that caused increased stress to the neck as a driver could cause discomfort or even pain in the neck.  Dr Lam considered it likely that the plaintiff suffered from a more significant and probably moderate degree of soft tissue injury to the neck, causing persistent neck pain and impairment as a residue of the accident.  He assessed the degree of residual pain and impairment to be mild.

5.  The plaintiff, as mentioned, resumed part‑time driving on 4 January 2014, around two weeks after the expiry of his sick leave on 23 December 2013.  He confirmed in evidence that initially he was unable to take passengers who travelled for long journeys because of weakness, stiffness and numbness over his neck, which he would experience after driving for 15 to 20 minutes.  He would then have to stop and do stretching exercise, sometimes resting for 20 to 30 minutes.  He had to work shorter hours.  In around August/September 2014, the plaintiff started working the full 12 hours shift from 5:00 am to 5:00 pm.  He had to rest for about 10 to 30 minutes after each journey and the number of occasions he had to rest for 30 minutes or more increased (to sometimes 5 or 6 times a day).  His situation had slightly improved by the time he made his witness statement on 24 June 2015, which he adopted as his evidence‑in‑chief at the assessment which took place on 19 to 20 January 2017.  By then, he would need to rest for 30 minutes or more four to five times a day, and sometimes he could drive two to three short journeys continuously without a rest, depending on the length of each journey.  At the hearing, the plaintiff added that in total, he rested for about three to four hours a day.

The master’s assessment

6.  Master Chow was obviously impressed by the plaintiff as a straightforward and credible witness.  She found that the plaintiff was a meticulous person, who laboriously recorded his daily earnings (and other activities) on sheets of monthly calendar which were produced as exhibits at the assessment.  The available calendar sheets showed the earnings of the plaintiff from 1 July 2012 to 17 January 2017.  The master, for the reasons she gave in her careful judgment, had no difficulty in accepting the authenticity and accuracy of the figures recorded on those calendar sheets.  From those figures, as well as the evidence of the plaintiff at the assessment, the master was able to work out the average net monthly income of the plaintiff for the 12 months prior to the accident at $29,300. She arrived at the (notional) pre‑assessment income of $30,765 as from 8 December 2013 by applying a 5% increase to the former figure on the basis of the increase in taxi fare from that date.  She made adjustments to the pre‑accident income and notional pre‑assessment income by deducting a monthly sum of $80.20 to represent the average traffic tickets that the plaintiff would receive.  She made no award for the 2‑week period between the expiry of sick leave in late 2013 and resumption of part‑time driving in early January 2014.  She made adjustments for the drop in income during the months of the “Occupy Movement” in late 2014, which the master (correctly) found to be unconnected with the plaintiff’s injury.  She therefore arrived at a pre‑assessment loss of earnings of $613,913.30 (see paras 92 to 95 of her judgment).

7.  The master was fully aware that the pre‑accident incomes of the plaintiff as suggested by the calendar sheets and the plaintiff’s evidence were higher than the government statistics for taxi drivers in Hong Kong.  She accepted the plaintiff’s evidence and found that the plaintiff was a “hardworking person”.  She accepted his evidence that he was able to make more money than average because he did not pick his customers, and would not refuse a flag like other taxi drivers, be it a short distance, long distance or cross‑harbour journey.  He worked the full hours of his shift and did not allow his taxi to lie idly on the street.  Master Chow observed that the figures from the Transport Department or the news article on the earnings of taxi drivers produced at the assessment only represented the average, and “the plaintiff is simply not the average taxi driver” (para 68 of the judgment).

8.  As for loss of future earnings, as mentioned, the master adopted $30,765 as the plaintiff’s (notional) monthly income by the time of assessment (had he not been injured).  She took the plaintiff’s actual monthly income by the time of assessment to be $21,000. Although she did not elaborate on the reasons why she picked that figure in her otherwise detailed judgment, it appears to have been the plaintiff’s assumption at trial (see para 105) which represented an increase from the evidence he had produced for the period August/September 2014 to December 2016/ January 2017.  The master also deducted an average sum of $80.20 from the monthly income to represent the average traffic tickets that the plaintiff would receive.  She also applied a 1.3% discount to the loss of future earnings to reflect future economic downturns and their impact on the plaintiff’s income as a taxi driver.

9.  The master adopted a multiplier of 20.29, which was not disputed on appeal.

10.  The master therefore calculated the loss of future earnings as follows:

($30,765 - $21,000 - $80.20) x 12 x 20.29 x 98.7% = $2,327,400.40

11.  Apart from loss of earnings and loss of future earnings, which were challenged on this appeal, the master also made assessment on pain, suffering and loss of amenities, special damages and future medical and travelling expenses, which were not disputed on appeal.

Appeals on fact

12.  Ms Susanna Leong, appearing for the defendant at the assessment as well as this appeal, advanced a number of points to challenge the master’s assessment of loss of earnings and loss of future earnings, which I will deal with in turn. However, it is important to state at the outset that the arguments involved in this appeal were basically challenges against the master’s findings of fact on the plaintiff’s residual impairment and condition, his income and figures, causation and other matters of calculation.  These were questions of fact in the context of a personal injuries assessment.  The master has made findings on them, and indeed dealt with most if not all of the arguments now raised (and repeated) before us on appeal.  This court’s approach to appeals on findings of fact is, I hope, well‑known to the profession.  That approach is no less true with personal injuries cases than with all other civil cases.  In Yeung Cheung Chun v Wing Shing Caisson & Foundation Ltd, CACV 39/2015, 25 April 2016, a personal injuries appeal, Kwan JA, giving the reasons for judgment of the court, reiterated the pertinent propositions as follows (para 35):

“(1) It is not appropriate for the Court of Appeal to take over the role of the trial judge as the primary assessor of the evidence. The appeal court does not and should not embark on the role of re-assessment of the evidence in the way Mr Wong has invited us to do.

(2) It is incumbent on the appellant to identify palpable errors in the judge’s assessment of the evidence that are sufficiently material to undermine his conclusions. The assertions that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below or that the judge had overlooked certain evidence because it was not mentioned in the judgment are not errors that come within that category. Unless there is compelling evidence to the contrary, an appeal court is bound to assume that the trial judge has taken the whole of the evidence into his consideration.

(3) In making findings of fact, judges can reasonably reach different conclusions from one another. The appeal court can only intervene when it is satisfied that the finding of the primary judge is ‘plainly wrong’. This phrase ‘plainly wrong’ directs the appeal court to consider whether it was permissible for the trial judge to make the findings of fact he did in the face of the evidence as a whole, in the knowledge that the appeal court only has the printed record of the evidence and whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence.

(4) A finding of fact made by the trial judge is an inherently incomplete statement of the impression upon him of the evidence.

(5) There is a greater appreciation of the need to exercise restraint in respect of findings of secondary fact based on inferences drawn from findings of primary fact.”

13.  Where, as here, one finds on appeal a judgment which sets out fully the reasons why the judge (or master) has come to a particular finding of fact after considering essentially the same arguments that are now repeated on appeal, these general principles apply with even greater force.  Unless the finding of fact under challenge is “plainly wrong” or a “palpable error” can be clearly identified, any attempt to challenge it in the context under discussion is doomed to failure.

Pre-trial loss of earnings

14.  Although various points were made on paper, at the hearing of the appeal, Ms Leong essentially ran three points in relation to pre‑trial loss of earnings.  First, she challenged the amount of rest that the plaintiff said he had to take during a shift as a result of his neck condition.  She pointed out that in the joint expert report, the plaintiff was said to have complained of “on and off” neck pain and that he needed “occasional” breaks.  Yet in his witness statement, adopted as evidence‑in‑chief at the assessment, he claimed he had to rest for 10 to 30 minutes after each journey, and the number of occasions that he had to rest for 30 minutes or more could be as high as five or six times a day.  Ms Leong argued that had the plaintiff told the experts what he stated in his witness statement and repeated in the assessment, the expert would not possibly have only recorded that he needed “occasional breaks”.  She therefore submitted that the master was wrong in accepting the plaintiff’s evidence in this regard.

15.  This was plainly a challenge against the master’s finding of fact.  Indeed, the same criticisms had been made before the master against the plaintiff’s evidence, and the master had not forgotten them when writing her judgment:

“35. The amount of rest the plaintiff required after resuming work as a taxi driver is a matter that had been gone into some depth. What the plaintiff stated in his witness statement of 24 June 2015 has been set out in paragraphs 32-34 above. Ms Leong contrasted this with the record under ‘Present Complaints’ in the Joint Medical Report that he had on and off pain and he needed occasional breaks only. As the plaintiff was examined by the experts only one day before the making of the witness statement, Ms Leong put it to the plaintiff that he told the doctors of the need for occasional breaks only and not the more number of breaks mentioned in his witness statement or that the breaks could be for 30 minutes or more.

36. The plaintiff denied this and pointed out that there had been no quantification by the experts as to the length of rest in the records they made. To him, ‘occasional breaks’ is not much different from ‘frequent breaks’. I pause here to point out that the court interpreter actually used the Chinese phrase ‘條頸耐唔耐都會痛’ for ‘on and off neck pain’ and ‘時不時都要停吓休息吓’ for ‘occasional breaks’ when she first explained the relevant parts of the Joint Medical Report to the plaintiff. She switched to use the term ‘偶爾’ for ‘occasional’ later on but that was after having heard Ms Leong use that phrase.

37. When asked what in fact did he tell the experts about the rest he required while driving, the plaintiff said that he could not recall the exact words used but what he told them would have the same meaning as what was stated in his witness statement.  He expressed his view that driving for 30 minutes was prolonged driving.  The plaintiff also responded in the negative to the suggestion that he had exaggerated the frequency of the breaks for rest required and the length of the rest periods taken, or that the need for the rest taken was not due to the injuries sustained.”

16.  The master returned to the same subject in paragraph 69 of her judgment:

“ On the frequency to take breaks from driving, as pointed out in the above, the Chinese phrase first used by the court interpreter for ‘occasional’ was ‘時不時’, which can encompass a scenario of the plaintiff taking breaks from time to time, that is, at a rather frequent basis. Further, as can be seen from the extract in Annex 2, the plaintiff did tell a number of doctors about his need to rest because of the neck pain, and on several occasions (even as late as May 2015, one month before the examination by the experts), he did tell them of the need to rest every 15 minutes. I do not therefore find the evidence of the plaintiff that he needed rest to the extent stated in his witness statements to have been shaken.”

17.  The master then went on to consider not only the joint medical report, but also the earlier consultation notes which she found to be consistent with the plaintiff’s complaint and his case on rest.  She concluded in paragraph 73:

“ As a whole, I find the Joint Medical Report and the consultation notes to be in support of the case of the plaintiff that his neck pain has been a constant issue to be dealt with and there was the need to rest at such frequency as was indicated in his witness statements. I also find that such records support the case of the plaintiff that the need to rest was caused by the injuries he sustained in the accident.”

18.  It is plain from the above that the master had given this question of rest serious consideration, and she bore in mind not only the joint medical report but also the other consultation notes.  The plaintiff was cross‑examined specifically on this subject during the assessment, and she found the plaintiff to be a reliable witness, whose evidence had not been shaken despite examination.  She found that as a matter of fact, the plaintiff did take the amount of rest he claimed.  That was a finding of fact reached after careful consideration of the entire evidence available.

19.  Given the high threshold for challenging a finding of fact, Ms Leong who realistically acknowledged at the hearing that she had an uphill task, has, with respect, come nowhere near achieving her task.

20.  Secondly, Ms Leong took a causation point.  Counsel argued that the expert medical evidence did not support the plaintiff’s claimed need for rest.  She reminded us that in the joint medical report, the experts said that the plaintiff was capable to resume his pre‑accident job as a taxi driver, “with minimal/mild reduction in work capacity”. Furthermore, even Dr Lam whose evidence was preferred by the master, only described the degree of residual pain and impairment as “mild”, and that after resumption of full‑time work, the plaintiff might need “slightly more short breaks for rest or stretch after prolonged driving” only.  Counsel therefore submitted that even accepting the claimed amount of rest, the plaintiff had failed to prove that the rest was caused by his neck condition.

21.  With respect, I do not accept the argument.  First, I do not read the joint medical report in the narrow way suggested by counsel.  In the report, Dr Lam actually said:

“Dr. Lam : Dr. Lam considers the overall evidences and findings at the present assessment. The overall evidences suggest presence of mild residue pain and impairment despite various treatments. For instance, referring to the Physiotherapy Report dated 14 April 2014 prepared by Chow Yu Lap, Pauly, Physiotherapist I of Physiotherapy Department, UCH: After 3 months of treatment (from 23 August 2013 to 21 November 2013) with 15 sessions of treatment, Mr. Lee reported 80% improvement. The progress was satisfactory. However, physical examination still revealed decreased ranges of motion to 2/3 to 3/4 full range, and there was still mild subjective pain of 2/10 on Numeric Pain Rating Scale.

Dr. Lam : Dr. Lam considers if Mr. Lee suffered from just mild soft tissue injury to the neck, it is likely to achieve good recovery after 6 weeks up to 3 months of treatment. In this case, the evidences available suggest presence of mild persistent pain and decreased ranges of motion despite 3 months of treatments. The present examination still revealed mild residual tenderness, muscle guarding and mild decrease in neck rotation. Dr. Lam opines that it is unlikely that Mr. Lee suffered from just mild soft tissue injury to the neck. On the other hand, referring to the MRI scan report (whole spine, examination date 3 August 2013, done in United Christian Hospital), there was no severe soft tissue injury such as large disc protrusion or extrusion noted in the cervical spine. Dr. Lam opines that considering the pre‑injury condition, the mechanism of injury, and the subsequent chain of events after the subject accident, MRI findings and findings at the present assessment, it is likely that he suffered from more significant and probably moderate degree of soft tissue injury to the neck, causing persistent neck pain and impairment as a residue of the subject accident. Based on the evidences available and findings at the present assessment, the degree of residual pain and impairment is assessed to be mild.

Dr. Lam: For assessment of permanent impairment and disability in practical terms, activities that cause increased stress to neck (eg. large degree of rotation of neck, say, in inspecting traffic environment; prolonged concentration in driving) can cause discomfort or even pain in neck – Mr. Lee would need more short breaks for rest or stretch after prolonged driving.”

22.  I do not see Dr Lam’s opinion as being inconsistent with the picture painted by the plaintiff in evidence, which was accepted by the master.

23.  Secondly, it has to be remembered that there is an inherent limitation to what a medical expert can do by way of opinion in this type of context, when commenting on what can or cannot be done, or need or need not be done, by a patient in a particular job on a day to day basis.  Quite plainly, Dr Lam is not a taxi driver, and when he gives his opinion, one would have thought, he does it on the basis of whatever information he has got from the patient about taxi driving and his own common experience in life, as well as, probably, his own experience as a private vehicle driver.  Unless there is a substantial difference between the prognosis of Dr Lam and what the plaintiff says happens in real life as a taxi driver, one does not use Dr Lam’s opinion as if it were a strait jacket on what the plaintiff should reasonably do or not do in real life as a taxi driver.  Rather, subject to the question of credibility and reliability, the plaintiff’s own evidence as a taxi driver on the ground regarding what he needs in terms of rest due to his neck discomfort or even pain must be accorded due weight.

24.  Thirdly, and in this regard the master was absolutely correct, one does not only focus on the joint medical report.  The master, it would be remembered, considered also the consultation notes which covered a substantial period of time of consultation (as opposed to the joint medical report which was prepared on the basis of one session of examination). In paragraph 73 of her judgment (already extracted), she found the joint medical report “and the consultation notes” to be in support of the case of the plaintiff that his neck pain had been a constant issue to be dealt with, and “there was the need to rest at such frequency as was indicated in his witness statements”.  She also found such records to be supportive of the plaintiff’s case that the need to rest “was caused by the injuries he sustained in the accident”.  They were clear findings of fact based on the entirety of evidence – factual and expert – placed before her.  For the reasons already explained, there simply was no chance of the defendant’s upsetting those findings of fact on appeal.

25.  The third point taken by Ms Leong in relation to pre‑trial loss of earnings was again one on causation.  She criticised the master for equating the plaintiff’s actual loss in income after resumption of work with his loss of income as a result of his neck condition.  She contended that the income of a taxi driver can depend on a number of factors which have nothing to do with his or her health condition.  She pointed to the Occupy Movement in late 2014 as an example, in relation to which the master made some adjustments in favour of the defendant in the calculations.  She suggested Uber as another possible factor.  She also mentioned MTR extensions. She essentially contended that it was for the plaintiff to eliminate these other possible factors in discharging his burden of proof of loss.  She criticised the master for effectively placing the burden on the defendant to prove the effects of these possible factors on the plaintiff’s income.

26.  I reject this argument.  First, as a matter of pleadings, these were points which a defendant who wished to run them had to plead in his amended answer to the revised statement of damages. Certainly, a plaintiff has the legal burden of proof in relation to the loss that he claims.  But he is not required by law to anticipate all sorts of possible points that may be thrown at him at trial.  Pleadings are required precisely to put one’s opponent on good notice of the case that he has to meet.  Secondly, pleadings aside, in the context under discussion, the concept of an evidential burden requires an opposite party to a claim to lay an evidential foundation for a point that he wants to rely on, before the party bearing the legal burden of proof needs to deal with it in accordance with the burden and standard of proof.

27.  On the facts of the present case, when Uber and extensions of MTR had not even been pleaded in the amended answer, it would be wholly unfair and wrong to require the plaintiff to anticipate such points in the preparation of his case for assessment.  The master allowed Ms Leong to raise these specific matters during cross‑examination. But this did not alter the fact that without laying a proper evidential foundation for running these points (and no material relating to Uber or MTR extensions was placed before the master), the plaintiff was simply not required to prove that his loss in income after resumption of work was not due in whole or in part to these specific factors.

28.  These specific factors aside, if Ms Leong really wanted to rely on any general factors, such as a general economic downturn during the relevant time, to support her argument on causation, she could have pleaded and relied on, for example, general government statistics of average incomes of taxi drivers during the pre‑trial period, to lay an evidential foundation.  If she had done so, and if such evidence was indeed placed before the master, it would be up to the plaintiff to discharge his legal burden that his actual drop in post‑accident income was not in whole or in part caused by these general factors unrelated to his neck condition. But that was not what happened at the assessment.

29.  Viewed in this light, the master was quite right in rejecting similar arguments raised before her at the assessment:

“83. Ms Leong has pointed to a number of factors that may affect the level of earnings of taxi drivers which are wholly unrelated to the accident: operating costs, competition from taxi drivers who offer discount to customers, competition from Uber drivers, extension of MTR service and atmosphere and condition of the economy. The plaintiff has himself agreed that the drop in the earnings for October 2014 was due to the Occupy Central movement. Ms Leong therefore cautioned against simply looking at the reduction in the earnings of the plaintiff after the accident even if it is proved. Mr Chung countered by stressing that there are no data to support a case that these factors do in fact pose any competition and this cannot simply be assumed.

84. Most businesses face competition and it is a fact of life.  However, without dedicated studies on the effect of potential factors that may pose competition to taxi services, it would not be right to simply assume that they in fact do.  For example, when asked about the competition from taxi drivers offering discount, the plaintiff answered that they already existed prior to the accident.  He also remarked that users of the MTR service are not the usual customers of taxi service and the MTR is more of a competition to bus service than taxi service. I am prepared to find, on balance, that apart from the traffic offence tickets and the Occupy Central movement dealt with below, the plaintiff has shown that the reduction in his earnings after the accident was caused by the injuries he sustained.”

Loss of future earnings

30.  So much for pre‑trial loss of earnings. As for loss of future earnings, Ms Leong’s primary case was that there was no future loss.  As a fall back position, she submitted that at most the plaintiff had suffered a 5% loss in income based on a (notional) monthly income at the time of assessment at $30,684.80.  According to her calculations, the future loss under this fall back position would only amount to $373,556.76 ($30,684.80 x 5% x 12 x 20.29).

31.  Again, this all related to the master’s findings of fact.  As explained, she made clear findings on the plaintiff’s injury, condition and its effect on his work and income.  She also made findings on the plaintiff’s post‑accident incomes, and she had actual monthly figures before her all the way up to the time of assessment.  She found that the plaintiff was an extremely hardworking taxi driver, and despite that, he was making about one‑third less than what he would have been making as a result of his neck condition and the consequential need for rest.  I pause here to observe that even at $21,000 per month, the figure adopted by the master as her starting point for calculating loss of future earnings, the plaintiff was already earning substantially higher than the average income of taxi drivers in Hong Kong.  In my view, the master was perfectly entitled to adopt the figure, and there was simply no basis for this court to interfere with her findings.

32.  There was no challenge against the formula adopted by the master except that Ms Leong argued the 1.3% discount for future downturns in the economy was without sound foundation.  When asked whether she would suggest any other discount, she was not prepared to suggest any.  I agree that the discount of 1.3% cannot be scientifically backed.  It was a calculation by the master based on the effect of the Occupy Movement on the plaintiff’s earnings (see para 103).  It assumed (in the defendant’s favour) a similar future downturn in the economy.  In fact, nobody knows what lies in the future.  Just as there could be downturns, there could also be upturns.  I would have thought if the master had simply adopted no discount she could not be criticised.  From that perspective, I simply fail to see how she could be criticised for adopting a discount in the calculations in favour of the defendant.  If 1.3% discount was without foundation, a 10% discount would equally be without foundation.  I could see no reason for disturbing the discount adopted by the master.

33.  As I said, there were no other criticisms of the master’s calculations of the loss of future earnings.  The defendant also failed on this challenge.

Outcome

34.  For these reasons, the appeal was dismissed with costs to the plaintiff.

Hon Yuen JA:

35.  I agree with the reasons for judgment of the Chief Judge.

Hon McWalters JA:

36.  I agree with the judgment of Cheung CJHC.