LI CHEUK LAM v. CHEUNG SUN TAI AND OTHERS

HCPI 1102/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1102 OF 2015

_________________________

_________________________

__________________________

ASSESSMENT OF DAMAGES

__________________________

1.  This is a personal injury claim arising out of a road traffic accident on 16 August 2013. Interlocutory judgment has been entered against all the defendants leaving quantum to be assessed.

2.  The plaintiff is a self-employed container truck driver aged 45 at the time of the accident.  He is now 49.

PSLA

3.  The plaintiff’s container truck was involved in a 5 vehicle chain collision.  He had stopped but was hit from behind, which caused his vehicle to hit the vehicle in front.  So there was a double impact.

4.  He had injured his right knee but was able to walk out of his truck.  He was sent to AED of Tuen Mun Hospital by ambulance.

5.  The AED recorded on physical examination:

“Right knee -mild swelling -effusion -tenderness over medial joint line -decrease extension/flexion because of pain”

6.  X-ray of right knee showed no fracture or dislocation.

7.  The plaintiff was given tramadol.  On reassessment, it was recorded, “weight bearing +, power full sensation intact…”

8.  The plaintiff was discharged home and given 4 days of sick leave.

9.  The plaintiff attending for medical treatment a further 10 times (at Tuen Mun Hospital AED, Yun Fung Shee GOPC and other public health care clinics) for persistent right knee pain until he was referred to Orthopaedics specialist clinic by Tuen Mun Hospital AED on 28 September 2013.

10.  It is the plaintiff’s case that he was prescribed Non-Steroidal Anti-inflammatory Drugs (“NSAIDs”) at every attendance.  The defendant disputed this, observing that there was no medical record of such prescription.  I have perused the AED records and noted that there was only the entry for “Stat Drugs” of Tramadol on the day of the accident.  However, I cannot come to any conclusion as to whether “take home” medications might be recorded in some other medical records.  I also note that the TMH orthopaedics reported that the plaintiff was “taking prn Panadol”.  I therefore take it that the plaintiff had been taking Panadol, a type of NSAIDs, on an “as required” basis.

11.  What is striking from these medical records (a summary is helpfully provided on the schedule of sick leaves) is that, in these 11 attendances, the plaintiff was given variable lengths of sick leaves after each consultation but he always attended for medical treatment the day that the previous sick leave ran out.

12.  I would expect that any reasonable patient with a persisting pain and unable to work would be very keen for full recovery and to return to earn a living. So if the patient attended a doctor and was given a certain medication and a period of sick leave, and if pain persisted despite the medication, he is unlikely to wait until the sick leave period expired before seeking further medical treatment.  This behavior would be even more unlikely if he has done this repeatedly and each time he has been prescribed with the same type of, if not exactly the same, medication.

13.  Instead, I would expect any reasonable patient with persistent pain would return to the doctor very promptly if the treatment did not help.  He would likely request stronger medications, further investigations or even referral to a specialist.

14.  If a patient chooses to passively take the same medications (despite the obvious failure of such medications to cure the persistent pain) and sit out until the last day of every sick leave period, this rather suggests that the patient is more concerned in obtaining continuous sick leaves than about curing any alleged complaints.

15.  The plaintiff attended the orthopaedics clinic at Tuen Mun Hospital on 7 October 2013.  The records stated:

“…persistent right knee pain can walk but limping…”

“PE (physical examination): no effusion, no deformity, no bony or joint line tenderness, ROM (range of motion) 0-130, extensor mechanism intact….No quadriceps wasting…XR Rt knee today: no # (fracture)….”

“explain to patient there is no evidence of fracture or ligamental / meniscus injury clinically and he could go back to work”

“he is not confident to go back to work yet”

16.  The “Plan of Management” were “FU 4/52 (follow-up in 4 weeks), refer occup x work assessment and hardening, SL till FU (sick leave until follow-up)”.

17.  Under “Prescription”, the record showed “nil”.

18.  I note that the plaintiff was given 4 weeks’ sick leave and yet, without any prescription of medicine, he “sat out” these 4 weeks without seeking any “interim” “emergency” medical treatment.

19.  This behavior stood in stark contrast with the previous period when the plaintiff was only given a few days of sick leave at each consultation and he repeatedly attended emergency consultation at AED or day clinics whenever the sick leaves ran out. 

20.  Again, this rather suggested that the plaintiff was attending doctors more for obtaining sick leaves than for treating any alleged persistent pain.

21.  Crucially, when the plaintiff attended the follow-up on 4 November 2013, the orthopaedics consultant recorded:

“Well

Independent walking

Asymptoimatic

Rt knee AROM: full

Effusion –ve

…..FU PRN (follow up as required)”

22.  It would appear that the plaintiff has fully recovered by then and has been effectively discharged from the orthopaedics specialist clinic with advice for “follow-up as required”.  As a matter of fact, the plaintiff never returned to the specialist clinic after this.  (He claimed to have consulted a Chinese practitioner instead, but was of no use either.)

23.  In court, the plaintiff denied that he ever told the doctor that he was well with no symptoms etc. and also denied that he was advised by the doctor to arrange follow-up as required.

24.  I do not accept that. If the plaintiff was still complaining of persistent pain and other problems, or if the doctor detected any signs on physical examination at the time, I cannot see how this consultant orthopaedics surgeon would record something that would have been the exact opposite of the case before him.

25.  The plaintiff has sort to rely on the single joint expert report of Dr. James Kong which stated:

“Nature / Degree of Permanent Disability

….Mild soft tissue residue of right knee pain”

26.  On review of this expert report, I note that Dr. Kong recorded the “present complaints” of the plaintiff as “right knee swelling and heat; right knee soreness….”.  These are the complaints provided by the plaintiff and, as such, subjective evidence.

27.  On physical examination, Dr. Kong’s findings were essentially normal (except for the plaintiff’s subjective complaint of pain and tenderness): no effusion or swelling or muscle wasting, ROM all normal and symmetrical left and right knee, ligaments’ and meniscus tests all negative, motor power, reflexes and sensation all normal, x-ray of both knees normal etc.

28.  Yet, on this basis, Dr. Kong concluded that there was “mild soft tissue residue of right knee pain”.

29.  I think this is entirely unsatisfactory.

30.  An expert on quantum conducting an examination would obtain two types of evidence: the “subjective” evidence which are the presenting complaints and medical history the plaintiff informed the expert, and the “objective” evidence obtained by physical examination and investigations like x-rays and MRI scans. (Some aspects of certain physical examinations may be considered “subjective”, e.g. findings of tenderness on palpation, finding of pain at range of movement examinations, or, to some extent, muscle weakness because it would be up to the patient to complain when certain areas were palpated or manipulated, and, in the latter example, up to the patient to exert voluntary effort when asked by the doctor.  However, for some physical examinations, there may be ways for the examiners to detect whether the “subjective” complaints or voluntary efforts were genuine or not.  The experts would be expected to discuss these in their report if such occasions arose.)

31.  The “subjective” evidence may be treated by the court, under proper circumstances, as no more than hearsay evidence the patient has told the experts.  Thus such evidence is open to the court to find otherwise at the trial as a matter of fact finding.  The “objective” evidence, however, is something that the court must rely on the experts as only they would have the expertise to perform the examinations or interpret the investigation results.

32.  An expert is expected to discuss both the “subjective” and “objective” evidence on an even-handed and fair manner whether such evidence supports the case of those instructing him or not (not relevant here as Dr. Kong is a single joint expert) before coming to any conclusion.  In particular, the expert should address whether the “objective” evidence supports the “subjective” complaints.  The court may also accept that there are limitations to various investigations so that a normal finding may not preclude the possibility of genuine symptoms or “subjective” complaints, so the experts should also discuss this and perhaps give an opinion as to the extent and likelihood of this possibility (of on-going symptoms despite normal “objective” evidence), and produce any supportive medical research literature if applicable.

33.  If such discussions are presented, it would be entirely proper for an expert to base his opinion solely on the “subjective” complaint of the plaintiff without supportive “objective” evidence, but he has to qualify his opinion by stating so.  The expert should be aware that it is not their role to determine the facts.  Under such circumstances, the case would turn depending largely on the credibility of the plaintiff in establishing that their “subjective” complaints were truthful.  It would be a finding of facts by the court so the role of the expert evidence in such a case would be somewhat limited. 

34.  What an expert must not do is to “play advocate” by “cherry-picking” evidence which support one side’s case and base his opinion entirely on those without any qualifications.  If he does so, he is clearly only acting for the interest of that party and has failed to discharge his duty which should be to the court.

35.  In this case, Dr. Kong has failed to discuss all the apparently normal objective evidence and simply based his opinion, without any qualification stating as such, on the “subjective” complaint of pain and concluded that the plaintiff had “mild soft tissue residue of right knee pain”.  There was no discussion of the likelihood of a pain that alleged to have persisted for years from a contusion in the absence of “objective” evidence and, under such circumstances, what the likely extent or degree would be of this pain.

36.  In particular, Dr. Kong should be aware that, amongst others, there were Tuen Mun Hospital Orthopaedics records showing “no bony or joint line tenderness” as early as 7 October 2013 and “asymptomatic” as early as 4 November 2013.  Yet, on the day of Dr. Kong’s examination almost 3 years later (on 14 June 2016), the plaintiff complained of various pain as well as “mild tenderness on right patella medial facet”.  Thus, his colleagues at Tuen Mun Hospital have presented a completely different scenario as the one given by the plaintiff.

37.  Of course, like the “subjective” evidence by the plaintiff, Dr. Kong needed not accept the Tuen Mun Orthopaedics records as the truth.  It is not an expert’s role to determine the truth of any evidence anyway.  However, he must address this scenario as well. It is the duty of an expert to address each “alternative” scenario presented before him on an even-handed manner.  For example, he might discuss that, if such medical records were true, whether there was any medical explanation why complaints like “bony tenderness” might seemingly re-emerged after an apparent recovery, and the possible diagnosis, pathology and likelihood of such.

38.  Dr. Kong has completely ignored such evidence, and has clearly been “picking and choosing” those “subjective” evidence given to him by the plaintiff.

39.  As stated by G Lam J in the judgment of 莫錦平對葉家啟及另一人(HCPI 546/2014) Unreported, as I translate:

“The court must take particular care in situations when the plaintiff claimed to suffer from chronic pain beyond normal recovery time when there was no objective evidence to prove the plaintiff has continuous injury…”

40.  As such, I do not accept Dr. Kong’s opinion that the plaintiff has “mild soft tissue residue of right knee pain”.  As discussed above, Dr. Kong has failed to discharge his duty to the court.

41.  When asked why he did not return to be followed-up at Tuen Mun Hospital orthopaedics clinic when he continued to have pain, the plaintiff denied that the doctor had advised “follow-up as required”.  Then he further explained that he had lost confidence in government doctors.  However, he could not provide any satisfactory answer as to why he did not consult private doctors.

42.  He attended the occupational therapy department for work evaluation on 10 December 2013 and said he was taught some home physiotherapy exercises which were helpful.  He claimed that he tried to book an appointment for physiotherapy but the waiting list was 6 months, so he did not proceed.  In any case, it appeared that he was referred to physiotherapy but there was no record of any attendance.

43.  The plaintiff also claimed that doctors repeatedly advised him that his pain would be long term and he had to bear with it, but none of such advice appeared in the records. In fact, much of the medical records stated to the contrary e.g. that he was “asymptomatic” and could return to work etc.

44.  I do not think that the plaintiff was at all credible.  The plaintiff’s behavior in fact showed that he could not have been that concerned about the treatment of or recovery from any claimed persistent pain and other problems.  This must lead to the inevitable conclusion that he could not have suffered from such problems, at least to the extent as claimed.

45.  I would accept that the plaintiff suffered a soft tissue injury (or contusion) of his right knee (with pain, slight swelling, redness, decreased range of knee extension and flexion and uncomplicated by any open wounds, bony or ligament injuries) on 16 August 2013 but he had fully recovered certainly by 4 November 2013 if not well before then.

46.  I have considered various cases including Lo Yin Fong v Maxim’s Caterers Ltd (DCPI 1424/2009), Tam Wai Chun v Choi Siu Kwong (DCPI 2647/2007), Cheung Yiu Kwong v Yu Wing Hong (DCPI 158/2007), Sulakhan Singh v Federal Securities Limited & Ors (DCPI 231/2007) and I am of the view that a reasonable award is HK$70,000.

PRE‑TRIAL LOSS OF EARNINGS

47.  The plaintiff is self-employed and claimed a pre-injury salary of HK$16,350 per month.  The Tax Demand Note issued by the Inland Revenue Department for 2012/2013 showed a net profit of HK$130,800 (gross income HK$530,500 minus operating costs HK$399,700) and the plaintiff claimed that he had only worked for 8 months during this tax year.

48.  The plaintiff spent much time in court explaining the nature of his work.  He drives container trucks transporting containers between various sites including the container terminal and containers depots around New Territories. Each journey might take 30 to 60 minutes.  He would then have to wait for up to 1 hour or more for the container to be loaded or unloaded.  Depending on the timings, he could perform 5-6 rounds a day and 27-28 days a month before the injury.  Some drivers can do 6-7 rounds a day.  He got paid around HK$400 to 450 per trip but he has to pay for any toll charges.

49.  The plaintiff claimed that after the accident, he could still do 2 rounds in the morning but needed a long lunch break to rest, and could only do one more round if he was mentally and physically capable.

50.  The plaintiff explained that his work capacity was reduced because he was driving a container truck and the controls were stiff and heavy.  He would develop pain and numbness in his leg in the afternoons, and the pain caused weaknesses and affected his control of the brake pedal, and so he had to leave a bigger gap to the car in front and be more vigilant, thus this caused mental exhaustion.

51.  The plaintiff had sick leave for about 3 months and claimed that he took an extra month for convalescence. He said he resumed work in mid-December 2013 but, due to his residual symptoms explained above, he could only work part-time earning 50% of his salary (HK$8,175) for 3 months, and after that period he could resume 80% of his work and was earning HK$12,608.33 a month since.

52.  On this basis, the plaintiff claimed HK$211,825.11 under this head of claim.

53.  Of course, these are all evidence led from the plaintiff.

54.  Looking at the Tax demand note, for the year 2013/2014, the year that the plaintiff was injured, the “gross income” increased to HK$707,200, “operating costs” also increased to HK$555,900 and the “net profit” has also increased to HK$151,300.

55.  A simple arithmetic shows that the pre-injury “gross income” per month (in the tax year 2012/2013) should be $530,500/8 = HK$66,312.50.

56.  In the tax year 2013/2014, the plaintiff has worked for 4.5 months before the accident and then he took 3 months off work.  He then allegedly worked at 50% for 3 months and 80% for the remaining 1.5 months, then he must have worked for a total of 4.5 + (3 x 50%) + (1.5 x 80%) = 7.2 months.

57.  As such, one would expect that the “gross income” should be around HK$66,312.50 x 7.2 = HK$477,450.

58.  In fact, the plaintiff’s “gross income” was HK$707,200 which is almost 50% higher.

59.  When I put this to the plaintiff during the hearing, he merely explained that he had a busy period just before the accident.

60.  The plaintiff, of course, never mentioned this before in either the pleadings or his witness statement.

61.  By his own evidence, the plaintiff only worked the equivalent of 2.7 months after the accident in the tax year 2013/2014.  So the “gross income” in this period would have been HK$66,312.50 x 2.7 = HK$179,043.75.

62.  Thus, his “gross income” would have been HK$(707,200 – 179,043.75) = HK$528,156.25 in the 4.5 months prior to the accident.  He was therefore having an income of HK$117,368.07 per month.  This meant that he was working almost 180% of his normal capacity.

63.  In other words, if he normally worked 5 rounds a day, he must have been working 9 rounds a day for each work day in those 4.5 months.  Of course, from what the plaintiff told the court about his work routine, this would have been nigh on impossible.

64.  The plaintiff said that even the most diligent drivers could do 6-7 rounds a day.  So if the plaintiff could achieve 9 rounds a day, he surely would have mentioned his own record instead.

65.  In fact, if one takes the calculations from what the plaintiff said as his work routine before the accident: that he could do 5-6 rounds a day earning, say, give or take, HK$400-450 each round for 27 days a month, this translates to a gross income of HK$648,000 to 874,800 a year.

66.  The gross income of the plaintiff in both tax years of 2013/2014 and 2014/2015 falls within this range which clearly shows that his gross income has not dropped after the accident.

67.  The plaintiff’s explanation for this was that after the injury, whenever he was called for jobs that he could not cope with, he would refer the jobs to other drivers.  But under this “referral arrangement”, he himself would get paid (mostly in cash) so he needed to repay the other drivers.  He also claimed that he believed that the IRD would count all the money he received (and paid into his bank account) as income so he must declare all these as “gross income” to the IRD.  When he subsequently withdrew the money to repay the drivers, he declared these as “operating costs” to the IRD.  This was the reason why in 2013/2014 and 2014/2015, both his “gross income” and “operating costs” increased despite his claimed injury.

68.  The problem with this explanation, besides the inherent improbability for someone holding such a belief as to the meaning of “income” and “operating costs”, was that the Plaintiff himself admitted that he was not required to file any account to IRD (because his annual turnover was less than HK$2,000,000). As such, he had never needed to file any bank statement.  Thus there was no logical reason why he should believe that IRD would look at his bank statement and count all cash deposits as “gross income”.

69.  Further, it would seem to me that the plaintiff was claiming that he had taken up the role as a sub-contractor.  There was no real convincing evidence to support this: he pointed towards some cash transactions in the bank statements and claimed that some were payments he received and others were withdrawals for repayments to the other drivers.

70.  I would think that if the plaintiff received a “job call” when he was exhausted, he could simply say “no”.  Instead, as he tried to lead us to believe, he created more work for himself by i) calling other drivers, checking their availability and referring the jobs to them; ii) receiving the payments on their behalf iii) keeping account of such jobs and payments (which he claimed he discarded afterwards so could not produce to the court) and iv) repaying these drivers later.

71.  Further, according to the plaintiff, the payment practice of this job was not straightforward: some companies pay a flat fee for each trip, others pay by weight of the containers, and the companies would also reimburse the drivers for various payments like port area entry tolls or penalties paid for damaged containers.  As such, I could imagine that, besides simply referring jobs and receiving the payments, the plaintiff must also liaise with the drivers and the companies with information like weight of containers, any tolls or penalties paid etc.  I could not see why the plaintiff would take up all these work, apparently for no extra income, at the time of day when he claimed to be so mentally exhausted that he could not even drive.

72.  The plaintiff also claimed that the drivers he referred jobs to were sometimes not reliable.  As such, I would expect a decrease in “gross income” because he would increasingly lose referral jobs.  In fact, there was an increase between 2013/2014 and 2014/2015.

73.  More importantly, if all this was true, the plaintiff must be aware that, due to this unusual “referral arrangement”, the IRD documents would show that he was earning more which was entirely inconsistent with his claim of working less.  He must also be aware that his various “loss of earning” and “working capacity” claims amount to almost HK$0.9M.

74.  Any reasonable person under such circumstances would realise that he needed all the evidence to support this “referral arrangement”.  Yet, the plaintiff said that he threw away all the “repayment accounts and receipts”, and he did not call any of these drivers nor people from those companies as witnesses to such an arrangement.  There was, in fact, nothing but bare assertions from the plaintiff.

75.  I therefore do not accept that the plaintiff has any substantial “referral arrangement” business.  I find that the declared “gross income” and “operating costs” to IRD actually reflected his own business’ earnings and outgoings.  The increase in “operating costs” may be due to other factors that he chose not to disclose but there was no evidence that this has anything to do with the alleged injury.

76.  Given my findings that the plaintiff must have fully recovered by around 4 November 2013, I would allow a pre-trial loss of earnings of 3 months: HK$16,350 x 3 = HK$49,050

77.  This is generous given that my analysis of his work and IRD documents above did not support any significant loss of earnings.

LOSS OF FUTURE EARNINGS

78.  As such, no award should be allowed under this head of claim.

LOSS OF EARNINGS CAPACITY

79.  Similarly, no award should be allowed under this head of claim.

MEDICAL EXPENSES

80.  I would allow medical expenses for the plaintiff’s attendance at various public hospitals and clinic amounting HK$1,420 (although, as stated above, I am of the view that these are more for the plaintiff to obtain sick leaves than for treating any significant injuries).  Given that I found that the plaintiff had fully recovered very early on, I am not convinced that he actually attended any bonesetter’s or Chinese practitioner’s treatment and even if he did, any such treatment would not be required.

TRAVELLING EXPENSES

81.  I will allow HK$1,510 as the plaintiff’s claimed travelling expenses to various public hospital and clinics.

TONIC FOOD

82.  I am not convinced that the plaintiff required much tonic food but I will allow HK$1,000 under this head of claim.

PROPERTY DAMAGES

83.  The plaintiff has instructed a loss adjuster to take photographs of the damage to his vehicle.  He has produced these photographs as well as the invoices for repair amounting to a total of HK$60,000.  I would therefore allow this claim.

84.  As a passing observation: if the plaintiff has been so careful and diligent in recording the damage to his vehicle (amounting to HK$60,000), one wonders why he has not taken the same care in recording his loss of earnings (amounting to almost HK$0.9M) by, say, keeping the “referral arrangement” accounts. This simply adds weight to my finding that there was no substantial “referral arrangement”.

SUMMARY

		HK$
	PSLA	70,000
	Pre Trial Loss of Earnings	49,050
	Loss of Future Earnings	0
	Loss of Earnings Capacity	0
	Medical Expenses	1,420
	Travelling Expenses	1,510
	Tonic Food	1,000
	Property Damage	60,000
	Total	$182,980	(plus interest)

85.  There be interest on general damages at 2% from date of writ to the date of judgment and interest on special damages at half judgment rate from the date of accident to date of judgment.

86.  I would also give an order nisi for the costs of the action to be paid by the 1^st, 2^nd, 3^rd and 4^th defendants to the plaintiff to be taxed if not agreed in the District Court scale and the plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate to Counsel.