YUEN PAK CHEONG v. CHAN KA LEUNG

HCPI 254/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 254 OF 2003

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ASSESSMENT OF DAMAGES

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1. This case arises out of an accident occurred on 27th December 2001, when the Plaintiff was travelling as a passenger in a public light bus ("the Plaintiff's Vehicle") and the Defendant was driving a private vehicle ("the Defendant's Vehicle"). When the Plaintiff's Vehicle was travelling along Cheung Sha Wan Road the Defendant's Vehicle ran into the Plaintiff's vehicle when the two vehicles reached the junction of Cheung Sha Wan Road and Butterfly Valley Road. As a result the Plaintiff sustained injuries. On 20th February 2002 the Defendant was convicted of (1) Careless Driving and (2) Driving a motor vehicle with alcohol concentration in breath in excess exceeding the prescribed limit. The Plaintiff issued the present proceedings on 7th March 2003. Judgment on liability was entered against the Defendant on 2nd May 2003. The matter now before the Court is to assess the amount of damages to be awarded to the Plaintiff.

2. The Plaintiff was represented by Counsel Mr Walker Sham and the Defendant was represented by Counsel Mr Wong Chi Kwong.

3. Prior to the hearing the Defendant submitted a statement made by Lam Kit Man on 5th January 2004 and sought leave to play a surveillance tape of the Plaintiff at the hearing ("the Surveillance Tape"). Mr Sham did not object to this application. The Plaintiff also sought leave to file his 2nd Supplemental Witness Statement dated 7th January 2004. Mr Wong did not object to that. Leave was accordingly granted.

4. The reports of government hospitals and medical reports of the parties of both orthopaedic consultants i.e. Dr Johnson Lam Chi Keung for the Plaintiff and Dr David H.F. Cheng for the Defendant were adduced as evidence without the need to call them to give oral evidence in accordance with paragraph 2 and 3 of the Order made by Master Lung on 5th August 2003.

5. The Plaintiff gave evidence in court. Apart from the Plaintiff, there were no other witnesses from both sides. The Surveillance Tape was also played in Court. The tape was taken on 9th August 2003. In the Surveillance Tape it shows the way how the Plaintiff worked at a BBQ Centre at Lung Kwun Tan, Tuen Mun, New Territories.

Background of the Plaintiff

6. The Plaintiff was born on 15th December 1953 in Mainland China. He had only received primary one education in China with no vocational training there. He became a dim sum chef in Chinese restaurant since about 10 years ago. He is married and has a son of about 13 years old. At the time of the accident he was 46 years old and was working for Ming Sing Seafood Restaurant at Shamshuipo as a dim sum chef. His monthly salary was HK$13,000 per month.

Plaintiff's Injuries

7. After the accident, he was admitted to Caritas Medical Centre and was found to have suffered from fracture of the right occipital condyle, diastasis of the left C6 and C7 facet joint and anterior end of the right 1st rib fracture. He also complained to have contusion of his right upper limb and pain at the back of his thoracic region. He had multiple facial and head injuries. He was hospitalised and was discharged after 7 days.

8. Thereafter, the Plaintiff continued to receive regular follow-up treatments and physiotherapy at both the Caritas Medical Centre and Tuen Mun Hospital. The Plaintiff began to consult Dr Johnson Lam Chi Keung who is an orthopaedic specialist since 20th March 2002. The Plaintiff however stopped consulting Dr Lam after 16th April 2002 and has since been consulting a Chinese herbalist doctor.

9. On 23rd September 2002 the Plaintiff was examined by Dr Johnson Lam and Dr David Cheng at Dr Cheng's clinic. After this joint examination, Dr Lam and Dr Cheng have produced the following reports.

	Dr Lam	Date
1.	1st Report	7/10/2002
2.	2nd Report	25/8/2003
	Dr Cheng	Date
1.	1st Report	7/10/2002
2.	2nd Report	7/1/2003
3.	3rd Report	27/8/2003

10. In Dr Johnson Lam's 1st Report, he writes (Bundle p.78):-

"There was gradual but slow improvement with medical treatment and physiotherapy. Mr Yuen still complained of significant pain in the neck, occipital region of the head, and the back of the thoracic region interfering with his activities. He complained of significant stiffness of his neck such that he would experience pain even with flexing the neck for a short while.

At the time of this assessment, it was about 9 months after the initial injury. Mr Yuen still had significant symptoms. The neck was stiff and Mr Yuen was still troubled by the headache, pain in the neck, and in the back of the thoracic region.

Physical examination revealed that Mr Yuen had reasonable recovery from the contusion to his right upper limb and he enjoyed satisfactory ranges of motion in the right upper limb. He had also recovered from the fracture of his first rib and there was no tenderness over the anterior chest. However, there was tenderness over the occipital region, and severe paraspinal spasm over the cervical region. Paraspinal guarding was also present in the back of the thoracic region. The neck was very stiff especially in rotation and in flexion and extension. The radiological investigation did not reveal any fractures and it was likely the previously fractured areas had united.

Despite over 9 months of treatment, Mr Yuen still had severe pain in the head, neck and the back of the thoracic region, and severe neck stiffness and paraspinal spasm. Mr Yuen's condition might still improve with a course of medical and physiotherapy treatment including strengthening the muscles of the neck, back and the upper limbs to optimize the patient's ability to return to work. The duration of time for maximal medical improvement would be about 12-18 months after the injury. In the meantime, it was unlikely that Mr Yuen could return to his previous occupation as a Dim Sum worker that required medium to heavy physical demand in a potentially dangerous requirement.

At the time of this assessment, Mr Yuen had impairment and disabilities related to injuries to the occiput, cervical spine, and pain in the back of the thoracic region. In the assessment of permanent impairment, .... I would assess the amount of impairment should be in the region of 8%. This might be reduced to about 6-7% with further treatment. For the occipital fracture, there was persistent pain and I would suggest the amount of impairment should be in the region of 8%. This might be reduced to about 6-7% with further treatment. For the occipital fracture, there was persistent pain and I would suggest the amount of impairment should be in the region of 3%. It was less likely that further improvement would be achieved with further therapy. Hence the expected amount of permanent impairment related to the occipital fracture should also be in the region of 3%. .... The estimated percentage of permanent impairment related to occipital fracture and the injury to the cervical spine at the time of maximal medical improvement would be in the region of 9-10%. ....... the appropriate duration of sick leave would be in the region of 18 months."

11. In Dr Cheng's 1st report, he basically agreed with most of the findings set out in Dr Lam's 1st report but for the following points:-

(1) Dr Cheng is of the opinion that the assessment of permanent impairment in the Plaintiff's case is about 5 to 7%.

(2) The Plaintiff is capable of returning to his pre-accident occupation of a Dim Sum Chef although he may still suffer occasional pain requiring rest for a day or two and as a result Dr Cheng is of the opinion that the Plaintiff's working efficiency may, as a result, be reduced by 5%.

(3) Dr Cheng is of the opinion that the Plaintiff would probably need a sick leave period of up to 9 months.

12. In Dr Cheng's 2nd report, he was shown Tuen Mun Hospital's Dr Chan Kin Ming's medical report dated 29th October 2002, Caritas Medical Centre's medical report of Dr Koo dated 29th November 2002, other medical reports records from Caritas Medical Centre and 14 x-ray films from CMC and was asked if he had anything further to add to his 1st report. Having considered the additional materials in Dr Cheng's 2nd report, he confirmed that he had nothing further to add to his 1st report.

13. In Dr Lam's 2nd report, he explained that the reason for the disagreement between Dr Lam and Dr Cheng's opinion on the Plaintiff's capability of returning to his pre-accident job was probably due to the reason that at the time when they examined the Plaintiff and prepared their reports they were not aware of the job requirement of the Plaintiff in that the Plaintiff was required to lift heavy objects and would need to have good eye-hand coordination to do his job properly. Dr Lam further said that with the presence of significant pain and stiffness in the neck and that the complaint made by the Plaintiff was likely to be genuine he still held the view that it was unlikely that the Plaintiff could return to his pre-accident occupation.

14. After considering Dr Lam's 1st report as well as the Plaintiff's 2nd witness statement dated 19th May 2003 in which the Plaintiff has explained his job requirement, Dr Cheng in his 3rd report whilst he still disagreed with Dr Lam over the length of time required for sick leave he agreed with Dr Lam that the Plaintiff has already reached a stage of maximum medical improvement. On Dr Lam's opinion that the residual pains suffered by the Plaintiff to his neck that caused problem to his hand-eye coordination, Dr Cheng was of the view that that was a subjective complaint and there was not clinical evidence to support those complaints. Dr Cheng also maintained his view that the Plaintiff could resume his pre-accident occupation although there may be reduction of working efficiency of about 5%. He further took the view that the Plaintiff could do so in 9 to 12 months' time after the accident.

15. I note however that at the time when Dr Lam's 2nd report and Dr Cheng's 3rd report were prepared these were in August 2003 but neither of them had an opportunity to examine the Plaintiff again. The findings set out in these subsequent reports still based on the physical examination of the Plaintiff back in September 2002. Bearing in mind that there was a 11 months' period between the examination of the Plaintiff and the last reports prepared by the two doctors there was a possibility that the Plaintiff's condition might have improved in the meantime and neither Dr Lam and Dr Cheng were aware of this. This is in line with Dr Lam's opinion (in his 1st Report) as he was of the opinion that the Plaintiff's condition might improve with a course of medical and physiotherapy treatment, and that the Plaintiff might be able to achieve maximum medical improvement in 12 to 18th months' time after the injury. In Dr Cheng's 3rd report he also agreed that at the time of his 3rd report i.e. end of August 2003 if there was any improvement achieved by the Plaintiff he would have achieved its maximum improvement by then i.e. August 2003. There is evidence from the Plaintiff that during that time he had been receiving treatments from a Chinese herbal doctor and he felt good after receiving those treatments. It is unfortunate that neither Dr Cheng nor Dr Lam had a further opportunity to examine the Plaintiff physically by August 2003 or that the Surveillance Tape was played to them for their comments. If that was done there would have been further medical evidence on the progress made by the Plaintiff by August 2003.

Plaintiff's evidence

16. The Plaintiff said in his evidence that he still suffers from persistent pain in his neck, the occipital region of his head, and the back of his thoracic region. Such pains would linger and increase by the movements of his head, neck and shoulders. He said that he could only manage limited range of movements of his head and upper limbs due to the pain and he has great difficulty in looking sideways, upward and downward.

17. The Plaintiff also complained that he has persistent pain and weakness in the upper limbs especially his shoulder joints and there is atrophy of his right shoulder muscle. The scope of movement of his upper limb is substantially reduced and he is unable to lift heavy objects of anything more than 50 pounds. He said that even the lifting of lighter objects will cause pain to his upper back and he is also unable to life his upper arm above shoulder level if at the same time he is required to lift heavy objects. He has lost two of his teeth as a result of the accident and his lower jaw has lost sensation.

18. The Plaintiff said that due to the limited range of movements of his head and upper limbs he has difficulty in eye-hand coordination. Any delicate things that need to be done that require hand and finger coordination he need to bring them up to at least his chest level.

Job nature of Dim Sum Chef

19. The Plaintiff described that the work of a dim sum chef is strenuous in that it would involve frequent lifting of heavy items such as (steaming cages and frozen meat etc) and that he would be required to chop with heavy knives and operating slicing machines.

20. He said that he would use large steam cages (over one metre in diameter) to cook large numbers of dishes of food in one go. The weight of these steam cages varies according to the kind of food but each one can weigh up to 70 pounds including the cooked rice and the Chinawares and sauces inside. He said that these cages are stacked up one on top of the other often reaching over ten layers in total. He has to frequently lift up some of the steaming cages to inspect and take out the cages down below. He also said that he had to carry a large quantity of heavy frozen meat in the course of his work and that each piece of frozen meat weigh about 50 pounds. He says that the kitchen is a very dangerous place. It is usually wet and often blocked by miscellaneous items and rubbish. Sharp knives, slicing machines and buckets containing hot liquid are placed in narrow walkways. He would have to manoeuvre with great care so as to avoid hitting such obstruction.

21. He said that because of his inability in moving his neck, shoulder and upper limbs whilst lifting objects as well as his inability to maintain eye-hand movement he is unable to resume his work as a dim sum chef because of the above job requirement.

Plaintiff's present condition

22. At the hearing the Plaintiff appeared a perfectly normal person. When the Plaintiff was asked to point out the location of his pain he was able to move his head and neck with no difficulty. He did not appear to be suffering from any pain in so doing. When he was asked to describe the pain and stiffness, he was able to lift his upper limbs to point at various location of his body without any difficulty. He was able to turn his neck to look at me and Mr Wong.

23. In the Surveillance Tape the Plaintiff was seen performing various duties at the BBQ centre moving around, sweeping the floor, picking up rubbish, lifting up a plastic chair and cleaning the water basin. He was also able to take his cap on and off his head quite often. He was able to lift a broomstick and a collector to pour rubbish into a rubbish bin with no difficulty. He was also seen lifting up a plastic armchair and washed it in the water basin and pulled a LPG canister on wheels with no difficulty.

24. Having considered the above and the matters stated in paragraph 15 above, I am satisfied that the Plaintiff is capable of engaging in full free movement of his neck, shoulder and upper limbs even when he is required to lift objects of medium weight although I accept that the Plaintiff might suffer some slight residual pain as a result.

Pain suffering and loss of amenity

25. Mr Sham referred me to Lee Ting Lam v Leung Kam Ming [1980] HKLR 657; Lawati Bhawani Pikram v Ting Kau Contractors; Chan Chi Shing v Tsang Fook Metal Engineering, HCPI 224/1998, 3 June 1999; Joan Carol Boivin v Wong King Yin, HCPI 195/2000; Gaby Anderson v Wui Yip Co Ltd & Ors; Ken John Geissler v Chan Kim Chung, HCPI 1/2000; and submitted that the award for the Plaintiff in this case should be in the region of HK$460,000 to HK$500,000.

26. Mr Wong on the other hand referred me to Lau Che-ping v Ho Kong Ironwares Godown Company Limited [1988] 2 HKLR 650; Chan Pui Ki v KMB, HCA 2006/1992; Yip Yuen v Lam Sai Cheong & Another [1994] HKLY 497; Li Yuk Ching v Secretary for Justice, PI No 724 of 1995, 21 July 1998; Chan Siu Youn v Ng Kam Man & Others, HCPI 533/1999, 28 July 2000, Recorder Wong SC [2000] HKLRD G9; Tong Lin Keung v Wong Chi Leung; Chiu Wing Sze v Chan Ying Wai & Another [2001] 2 HKLRD 92; Leung Siu Ping v Mak Sin Yee & Another; Jhuremalani v Fajada, DCPI 134/2001; and submitted that the amount allowed under this item should not exceed HK$300,000.

27. Having taken into account of all the case authorities cited as well as the medical evidence and the evidence displayed at the hearing, I am satisfied that this case falls within the lower end of the "Serious Injury" category and I would award a sum of HK$400,000 to the Plaintiff.

Can the Plaintiff return to his pre-accident job as a Dim Sum Chef?

28. By reason of my findings set out in paragraph 24 above I am of the view that the Plaintiff should be able to resume his pre-accident job upon expiration of his sick leave entitlement as the evidence shows that the Plaintiff was already able to work as a cleaner at the BBQ centre on 1st June 2003. Although the Plaintiff said that the job as a cleaner is much easier than a dim sum chef but having seen him at the hearing and what he could do in the Surveillance Tape I am satisfied that there should be no difficulty in him resuming working as a dim sum chef. I am not convinced that, with the Plaintiff's condition as shown in court and in the Surveillance Tape he will have any difficulty in working as a dim sum chef.

Plaintiff's monthly income

29. The Plaintiff says in his evidence that he earned a basic salary of HK$13,000 a month. This is certified by Ming Sing Seafood Restaurant. There is another certificate from Dao Hang Fish Harbour confirming that the Plaintiff's monthly earning during the period of 8th April 2001 to 26th September 2001 were HK$13,347. The Plaintiff also says that he works for 26 days a month and was given meals by the employer at an estimate price of HK$30 per meal.

30. The Defendant argues that the meal should only worth HK$20. I am satisfied that a normal meal provided to a restaurant worker should be in the region of HK$30 as claimed by the Plaintiff.

31. The Defendant also seeks to challenge the genuineness of the Plaintiff's claim that his monthly salary is HK$13,000 by referring to the Inland Revenue Department's record. Having taken into account of the evidence given by the Plaintiff in court, I am satisfied that he has not exaggerated his monthly income and am satisfied that he was receiving HK$13,000 a month at the time and that he also received a 13-month bonus a year. I would therefore allow the Plaintiff's claim that his effective monthly salary is HK$16,423; (i.e. 13,000 x 13/12 + HK$2,340).

Pre-trial loss of earnings

32. The Plaintiff was granted sick leave from the date of accident (i.e. 27th December 2001) up to 25th July 2003. The Plaintiff is therefore allowed to claim for the following sums during the period of his sick leave.

HK$16,423 x (5/31 + 18 + 25/31) = HK$311,544.31

33. The Plaintiff worked as a cleaner at a BBQ Centre between the period 1st June to 10th October 2003 and earned about HK$11,000 for that period.

34. As I have found that the Plaintiff should be able to resume his pre-accident work, in deciding what amount to allow to be claimed by the Plaintiff for the period from the expiration of his sick leave till the date of trial (i.e. approximately 6 months) I would need to consider the question of multiplier. In this respect, I have considered the Defendant's submission and in particular the case of Tang Shau Tsan v Wealthy Construction Company Limited [2001] HKLRD D13. I accept that based on Dr Cheng's opinion that the Plaintiff would probably need to take 2 to 3 days a month to ease his residual pain occasioned by the movement of his neck, I would therefore allow an allowance of 3 days of the Plaintiff's income per month i.e. HK$1,642.30 (HK$16,423 x 3/30). Therefore, the amount allowed equal to HK$1,642.30 x 6 = HK$9,853.80.

35. By reason of the above, the pre-trial loss of earnings would amount to HK$310,398.11 i.e. HK$311,544.31 + HK$9,853.80 - HK$11,000.

Pre-trial loss of MPF

36. The Plaintiff should be entitled to a loss of MPF benefit during the pre-trial period calculated at 5% x [HK$310,398.11 - HK$2,340 (being the meal value)] = HK$15,402.90.

Future loss of earnings

37. Initially the Plaintiff used a multiplier of 11 in his revised Statement of Damages. Subsequently in Mr Sham's final submission he accepted 10 to be a reasonable multiplier. This is also accepted by the Defendant.

38. Adopting the multiplier of 10 and applying the figure of HK$1,642.30 work out in paragraph 34 above, future loss of earnings is calculated to be HK$1,642.30 x 12 x 10 = HK$197,076.

Future loss of MPF

39. HK$197,076 x 5% = HK$9,853.80

Loss of earning capacity

40. A claim for loss of earning capacity is to cover the risk that, at

some future date during the Plaintiff's working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk (Moeliker v A. Reyvolle + Co Ltd). The Court will need to consider evidence, if any, of the risk that the Plaintiff will at some future time during his working life lose his employment.

41. Mr Wong has drawn my attention to Mak Yiu-yeung v Ho Cheung-kat as well as the case Tang Chi Wa v Dr Albert Chan. In both cases the Court refused to make any award on loss of earning capacity when the Court has already awarded damages to the Plaintiff to cover future loss of earning.

42. In the present case, where I have already found that the Plaintiff should be able to resume work as a dim sum chef and having already awarded loss of future earnings to the Plaintiff, I do not think it appropriate to make any award on loss of earning capacity.

Future medical and hospital expenses

43. As there is evidence that the Plaintiff will continue to suffer residual pain it is therefore reasonable to assume that the Plaintiff will need to consult medical practitioners in the future. The Plaintiff gave evidence that he ceased to consult a private practitioner since April 2002 because of lack of funds. Accordingly, I would allow the costs of consultation at HK$800 per month, thus totalling HK$9,600 a year (disallowing travelling expenses claimed by the Plaintiff). I think it is reasonable to allow this considering the progress achieved by the Plaintiff so far and I think allowing expenses for the next 12 months should be sufficient in the present case.

Medical and hospital expenses to date

44. These have already been agreed as follows:-

CMC: ($44 x 24) + $90 = $1,146

Tuen Mun Hospital: $44 x 15 = $660

Dr Lam: 5 visits = $4,510

$6,316

Travelling expenses

45. This has been agreed at HK$5,000.

Nourishing and tonic food

46.

Summary

47.

Interest

48. There is no dispute on the Plaintiff's claim on interest and accordingly award interest on PSLA at 2% per annum from the date of the Writ to the date of Judgment. Interest on special damages be awarded at 4% per annum from the date of the accident to the date of the Judgment herein.

Costs

49. There be a cost order nisi that the cost of the assessment be to the Plaintiff, to be taxed if not agreed, with certificate for counsel.