LAW TZE HO v. LI MAN KIN AND OTHERS

HCPI 692/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 692 OF 2009

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J U D G M E N T

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The Application

1.  This is an assessment of damages following a consent order of this Court dated 21 April 2011 when interlocutory judgment was entered for the Plaintiff against the 1^st and 2^nd Defendants for damages to be assessed.  By another consent order of this Court dated 21 April 2011, interlocutory judgment was entered for the Plaintiff against the 3^rd Defendant for damages to be assessed.  Subsequently, the claim against the 3^rd Defendant has been discontinued.  The application before me is between the Plaintiff and the 1^st and 2^nd Defendants.

The Accident

2.  The Plaintiff is the victim of a traffic accident.  It is not disputed that on the day of accident, 21 November 2006, he was employed by the 2^nd Defendant as a delivery worker/lorry attendant.  The 1^st Defendant was a driver in the employ of the 2^nd Defendant driving a light good vehicle JB2981 (“the LGV”).  Before the accident, the Plaintiff teamed with the 1^st Defendant to deliver goods to locations at Yuen Long.

3.  Just before the accident, the Plaintiff was sitting at the front passenger seat of the LGV, next to the 1^st Defendant.  At about 1:00 p.m., the LGV was travelling along Fan Kam Road, heading towards Kam Tin.  A vehicle from the opposite lane u-turn into the lane that the LGV was travelling.  According to the Plaintiff, the 1^st Defendant accelerated, instead of decelerating the LGV.  But the vehicle successfully u-turned into the lane without any collision.  The 1^st Defendant suddenly swerved the LGV and as a result, lost control of it.  The LGV spun around a couple of time and crashed into a railing before coming to a final stop.

The Injury and Treatment

4.  According to the evidence of the Plaintiff, after the accident, the front of the LGV was damaged and the screen broken.  He was scarred.  He felt his right neck and shoulder area had a bit of stiffness. He thought it was a minor injury.

5.  The 1^st Defendant had not reported to Police and continued with the trip.  After unloading the first lot of goods, the 1^st Defendant called another vehicle to take over the goods in the LGV and sent the LGV for repair.  The Plaintiff continued with the delivery work in the other vehicle.

6.  The Plaintiff did not receive any treatment immediately after the accident.  He said he was afraid that if he could not finish his work he would be dismissed by the 2^nd Defendant.  This was his second day at work with the 2^nd Defendant.

7.  On returning home, the Plaintiff felt increasing neck and shoulder pain on the right side.  He attended Princess Margaret Hospital (“PMH”) on 22 November 2006 for treatment.  According to the medical report of Dr. Ho Kin Kei of PMH dated 2 May 2007, the Plaintiff complained of increased neck pain.  He did not mention of loss of consciousness.  Mild tenderness was noted over the right side of the neck.  He was treated and discharged with sick leave from 22 November 2006 to 25 November 2006.

8.  On 25 November 2006, the Plaintiff visited PMH again complaining of continuing neck pain and shoulder pain.  According to Dr. Ho’s said report, x-ray of the cervical spine showed no fracture. The diagnosis was neck sprain.  Sick leave was extended to 28 November 2006.

9.  On 29 November 2006, the Plaintiff attended the Caritas Medical Centre, complaining of neck pain.  He was treated with analgesics and discharged without follow up and given sick leave until 2 December 2006.

10.  According to the evidence of the Plaintiff, at around the beginning of December 2006, he sensed that he heard someone talking to his ear.  He was scared.  He had to turn on all the lights at home, even when sleeping.  He could not sleep well and had poor appetite.  Sometime he lost control and cried.

11.  Sometime around early hours of 6 December 2006, the Plaintiff was arrested by the police inside the Mongkok MTR station. According to the medical records of Kwai Chung Hospital, the Plaintiff was found lying on a train platform, and exhibited irritative behavior.  He struggled with the enquiring policemen, causing injuries to 2 officers.  He was sent to Kwong Wah Hospital by the Police.

12.  According to a medical note by Dr. Ng Yin Kwok of Kwong Wah Hospital dated 6 December 2006, who examined the Plaintiff on admission, the Plaintiff was restrained on examination.  He was awake and oriented, coherent and relevant.  He could give a brief history of the traffic accident.  He could give essentially correct background information.  He had displayed paranoia behavior towards Dr. Ng.  Dr. Ng assessed the Plaintiff to have acute psychotic symptom after a recent road traffic accident and hospitalized the Plaintiff for 2 days.

13.  According to another medical note by Dr. Ng dated 8 December 2006, the Plaintiff had rapidly settled down in the Hospital.  He was on the whole claim and manageable.  He was discharged home with tranquillizing medication on 8 December 2006, and was referred to the West Kowloon Psychiatric Centre for urgent review with an appointment on 12 December 2006.

14.  On 12 December 2006, the Plaintiff refused to attend the West Kowloon Psychiatric Centre and left home.  His father called the Police, and when the Plaintiff was found, he was taken to PMH.  On 14 December 2006, on the recommendation of the psychiatrist of PMH, the Plaintiff was sent to Kwai Chung Hospital (“KCH”) for compulsory admission under the Mental Health Ordinance.

15.  According to the medical report by Dr. Chow Yat of KCH dated 25 June 2007, who took care of the Plaintiff since 1 January 2007, the Plaintiff did not report any psychotic symptoms when Dr. Chow first saw him.  He reported that he lost part of his memory.  The Plaintiff was noted to have auditory hallucination and persecutory delusion when he was admitted on 14 December 2006.

16.  Dr. Chow said “it is uncertain whether Mr. Law’s psychological complaints are directly related to the road traffic accident on 21/11/2006.  [The Plaintiff]’s memory problem and auditory hallucination appeared to have subsided in hospital but re-emerged when he attends out-patient clinic.”  It is also recorded that the Plaintiff had declined suggestion for admission to day hospital for assessment and rehabilitation.

17.  The Plaintiff was last examined by Dr. Chow on 7 June 2007.  And during the 1 month stay in KCH, the Plaintiff was observed to be stable mentally and he was allowed home leave during the period.  During his stay, the Plaintiff received various test of his cognitions.  His mini‑mental state examination was 30 out of 30, his long term memory was intact.  There was no obvious frontal lobe impairment.  There was no obvious parietal lobe impairment.  Thyroid function test was normal.  His ECG was normal.  No illicit substance was detected and his CT brain was normal.

18.  According to a medical report of Dr. Yim Chi Lap of KCH dated 13 April 2009, the Plaintiff had been under Dr. Yim’s care since January 2009.  He was calm and euthymic during follow-up.  The Plaintiff complained that he heard voices with derogatory content during day time.  He also complained of seeing images of various objects and human beings all the time except when was sleeping.  Occupational training services were introduced but declined by the Plaintiff.

19.  On discharge from KCH, the Plaintiff continued with out‑patient treatment from KCH.  He was transferred to West Kowloon Psychiatric Centre on 18 December 2009, until now.

20.  According to a medical note of Dr. M. W. Ng of West Kowloon Psychiatric Centre dated 17 August 2010, he was diagnosed as suffering from schizophrenia.  During his last interview on 17 August 2010, the Plaintiff appeared settled.  Dr. Ng considered that the Plaintiff is mentally fit to make statement and give consent.  While Dr. Ng mentioned that the Plaintiff was a mentally incapacitated person, in 2 subsequent reports by Dr. Ng dated 7 September 2010 and 14 September 2010 respectively, he confirmed that the Plaintiff was mentally fit to manage his financial and other personal matters.  He also clarify in a medical note dated 1 February 2011 that his comment of the Plaintiff was a mentally incapacitated person is a typing error in his earlier medical note.

21.  On 28 December 2007, the Plaintiff was assessed by the Employee Compensation (Ordinary Assessment) Board to have sprain of neck resulting in mild neck pain and psychiatric impairment with a finding of 6% loss of earning capacity.  On review the loss was revised to 7%.  The Plaintiff brought an action in the District Court to appeal against the finding and to recover his employee compensation.  The action had been settled without a trial. 

The Claim

22.  The Plaintiff brought this action to recover his loss.  He was 25 on the date of accident, and he is now 30.

23.  The Plaintiff said in his witness statement that he had good health before the accident.  He had no psychiatric problem before. And because of the injury, he still has –

a. Occasional pain and stiffness at neck and shoulder;

b. Often insomnia;

c. Reducing memory;

d. Weak concentration;

e. Involuntary movement of all limbs; and

f. Unstable mood, hearing people talking to him at his ear, causing him annoyance, stress and restlessness.

24.  The Plaintiff complained of hearing voices.  He said he saw some vision.  He would talk to himself.  He cried without reason, and had strange ideas.  He often had suicidal idea.  He was not willing to go out.  His friends had left him and he relied on his father to take care of him.

25.  Because of his neck and shoulder pain, the Plaintiff had resigned from the 2^nd Defendant on 3 December 2006. Before he resigned, the 2^nd Defendant employed him at the daily wage of $280 and he has to work on 28 days.  He claims his pre-accident monthly earnings at $8,140 ($280 x 28).

26.  The Plaintiff claims that he has not fully recovered and is still on treatment.  Further, because of the side effect of the medicine, he put on a lot of weight.  He could not return to work as a delivery worker.

27.  It is also the evidence of the Plaintiff that he had attempted to look for job.  He got some referral from the Labour Department and when he called those companies, and to be fair to them, he told them that he had to receive continuing psychiatric treatment.  No one had offered any interview.

Issue

28.  The issue in this action turns on the injuries to the Plaintiff as a result of the accident.  The Defendants denies that the Plaintiff could not return to his pre-accident job.  The burden rest on the Plaintiff to prove the injuries resulting from the accident, and because of such injuries, he cannot return to work as a delivery worker.  I would start with the expert evidence on his injuries and his working capacity.

Psychiatric Expert Evidence

29.  In respect of his injury and the effect on him, leave was granted for orthopaedic and psychiatric expert evidence be adduced. I would first deal with the psychiatric expert evidence.

30.  There are 2 psychiatric experts.  The Plaintiff nominated Dr. Law Wun Tong, and the Defendants nominated Dr. Wong Chung Kwong.  They jointly examined the Plaintiff on 25 March 2009 and prepared a joint report dated 15 September 2009.  By a consent order dated 21 April 2010, the joint report is adduced without calling the makers.

31.  Both experts agree that the Plaintiff suffered from a brief psychotic disorder.  As explained by Dr. Wong, this may be caused by the stress of the accident, the physical symptoms of pains and also that he was unable to sleep well after the accident.  Dr. Law gave the same reason in coming to the same conclusion.  I accept their opinion and also found that the acute or brief psychotic disorder is caused by the accident.

32.  I believe Ms. Lau, counsel for the Defendants is not disputing the brief psychotic disorder exist and is caused by the accident.  What is in dispute is whether the Plaintiff has recovered.  And the 2 experts also carried out various test on the mental condition of the Plaintiff.

33.  It is noted that when preparing the said report, the experts have been provided with all the medical reports from the treatment hospital, including those reports I mentioned above.  And the experts have set out the information given to them by the Plaintiff on his mental condition.

34.  The Plaintiff told the experts that his memory has become very poor after the accident.  He cannot remember what has said, where he had put things or what he wanted to do.  He could not recall the details of the accident.

35.  The Plaintiff also said he had been seeing things and hearing voices.  He also complained of involuntary movement of all four limbs, tongue, chest and abdomen.

36.  I do not repeat the details as set out in the report.  As summarized by Dr. Wong, the Plaintiff complained of three main groups of symptoms : (1) memory impairment; (2) cognitive impairment; and (iii) visual and auditory hallucinations.  This tally with the comments by Dr. Law, and these are the area of concern when they examined the Plaintiff.

37.  Mental state examination was conducted on the Plaintiff by the experts.  The Plaintiff was observed by the experts to be tidily and cleanly dressed and combed.  He was grossly obese.  His general physical condition was good.  His expression and gesture were normal but he made no eye contact with the experts.  He did not grimace in pain.  He showed no psychomotor retardation or agitation (which according to the expert is important clinical feature of the mood disorders).  His mood was not depressed or anxious even when asked by the expert to describe the accident and his injuries in details.

38.  The experts had examined the Plaintiff on his visual hallucinations, and hearing of voices.  The details of the questions and answers were set out in the report which I do not intend to repeat.  It is sufficient to note that very detail examination had been conducted and recorded.

39.  As the Plaintiff also complained of memory impairment and cognitive impairment, test on memory functions and test of the Plaintiff’s other cognitive functions are performed.  Again, the experts had kindly set out in great details the examinations and the results.  I do not intend to repeat all the details but would refer to the main conclusion.

40.  On his memory functions, the experts tested the Plaintiff’s long term, recent and immediate function.  The Plaintiff’s long term memory function is severely “impaired” as he was unable to recall a great deal of his family and personal information.  He was also tested on his recent and immediate functions.  The experts said –

“If his responses are genuine, they would indicate that he is suffering from quite severe impairment in immediate and recent memory functions. He is fully conscious and he has no difficulty in engaging in conversation with us, there is no reason why his immediate memory function should be so impaired. There is no reason why his recent memory function should be so impaired.”

41.  On his cognitive functions, the serial 100-7 test was conducted by the experts.  The experts concluded that the Plaintiff only gave approximate answers.  They said in the report “Approximate answers are incorrect answers which “approximate” the correct answer in that there are some logics or patterns behind the wrong answers which show that the errors are not made randomly (as one would expect in the case of genuine disturbance in cognitive functions or in genuine careless mistakes) but rather the “wrong” answers are preconceived and often even actively contrived and elaborated.  The approximate answer is an important clinical sign of exaggeration of mental impairment or even Malingering.”

42.  The experts also conducted a lengthy discussion with the Plaintiff to explore about his visual hallucination.  Summing up all the observation, the experts said in the report that the Plaintiff showed no sign of depression or anxiety.  He was composed throughout the examination.  Rather he showed a great deal of contrived memory and cognitive impairment.  They did not think that the Plaintiff suffered from any genuine auditory or visual hallucinations.

43.  On the treatment for the Plaintiff and his recovery as shown in the various medical report/notes of the treating hospital, Dr. Wong has given a very helpful summary in the report.  He referred to the medical notes of KCH.  By 18 December 2006, the Plaintiff was observed to be euthymic, i.e. his mood was normal, and that he was coherent and relevant in his thought and speech.  The Plaintiff denied hallucination and delusion on 18, 19 and 20.  On 27 December 2006, no psychotic features noted and his father requested for home leave.  He was given home leave until 30 December 2006.  He returned to hospital as scheduled and his father reported that he drank a lot of wine and that he was unable to sleep well at night.  The Plaintiff denied psychotic symptoms and his mood was euthymic.

44.  The record of KCH shows that his sleep improved on 2 January 2007.  He was found not to have hallucination and delusion.  His mood was euthymic.  He was given home leave from 8 to 13 January 2007.  He returned to KCH on 13 January 2007 and found to be euthymic and without hallucination or delusion.  He was discharged home. Dr. Wong opines that the psychotic symptoms responded very quickly to treatment so much so that a few days after admission they had already disappeared.

45.  Dr. Wong also noted that in most of the follow-up sessions, there were entries about his still suffering from auditory hallucinations.  He did not have delusion.  His mood is recorded to be euthymic throughout.

46.  Dr. Wong also referred to the said report from Dr. Chow Yat, the psychiatric report from Dr. Yan Tin Yee Connie dated 1 November 2007, and the psychiatric report from Dr. Yim Chi Lam Larina dated 13 April 2009, which are all included in the trial bundle.

47.  Dr. Wong opined that by the time the Plaintiff was discharged from KCH on 13 January 2007, he was already free from psychotic symptoms.  After a further period of outpatient psychiatric treatment of about three months to consolidate the effects of treatment, the Plaintiff should have become free from psychiatric disorder.  However, he continued to remain psychiatrically “sick”.  His case since then is that of “abnormal sick role”. And abnormal sick role is not a psychiatric disorder but a contrived repertoire of illness behavior.  There is no psychiatric treatment for it.  In fact, people with abnormal sick role often deceive and trap their treating doctors resulting in more exaggeration of symptoms and “disability”.

48.  Ms. Lau relies on the experts’ opinion to submit that the Plaintiff only have suffered from brief psychiatric disorder which was of a very transient nature, lasting only a number of days.  By the time of their examination, the Plaintiff is not suffering from any genuine auditory or visual hallucinations, or any genuine active psychiatric disorder.

49.  On the psychiatric expert evidence, Mr. Chan, counsel for the Plaintiff, relies on the opinion of Dr. Law who opines that the Plaintiff suffers from a 5% loss of earning capacity, and submits that the medical evidence does not absolutely remove the possibility that the Plaintiff still suffers from a certain degree of mental illness.

50.  Mr. Chan also submits that Dr. Law said “…there may be a chance of re-emergence of psychotic symptoms after full remission is achieved.”  But the comment should not be read in isolation.  It is convenient to read the opinion of Dr. Law.  He said

a.  Prognosis of brief psychotic disorder is usually good.  There may be a chance of re-emergence of psychotic symptoms after full remission is achieved.  However, the psychotic symptoms [the Plaintiff] complains of are not consistent with genuine psychotic features.  The adoption of sick role is probably related to the present litigation.  I would recommend an early closure of the compensation litigation.

b.  For the brief psychotic disorder, sick leave for three to six months is reasonable.

c.   For his future work capacity he should be able to resume his previous job.  I estimate the loss of earning capacity to be 5% and the permanent impairment of the whole person to be 5%.

51.  It is obvious that Dr. Law come to the same conclusion as Dr. Wong that the symptom the Plaintiff complained of is not genuine.  In fact there is no major difference in opinion of Dr. Wong and Dr. Law.  They stated in their report that “we concur that Mr. Law’s current “psychotic” symptoms are not genuine and that Mr. Law shows a great deal of approximate answers.  We both are of the opinion such clinical features do not support any current genuine active psychiatric disorder.  Rather they are features of gross exaggeration, abnormal sick role and even malingering.”

52.  Dr. Wong opines that the Plaintiff suffered from a mild degree of impairment for about 6 months and from 13 October 2007 onward, he should be able to return to his previous job.  And Dr. Law opines that sick leave for 3 to 6 months is reasonable.  And the Plaintiff could return to his previous job.  Dr. Wong opines that the Plaintiff suffers no permanent impairment of function, and Dr. Law opines that the Plaintiff suffers 5% permanent impairment of function.

Orthopaedic Expert Evidence

53.  The Plaintiff has been jointly examined by Dr. Danny Tsoi (the expert nominated by the Plaintiff) and Dr. Daniel Yip (the expert nominated by the Defendants) on 4 September 2009, about 3 years after the accident.  Their joint medical report dated 25 September 2009 is adduced without calling the makers.

54.  The Plaintiff complained to the experts that

a.  There is continuous right side neck pain, and pain over right Trapezius muscle and around shoulder region.  There was no improvement since the accident.

b.  He felt easy fatigue and soreness over muscle of the right shoulder and neck region.  The discomfort affects him even when at rest.

c.   He heard noise within the right shoulder during movement.

d.  His activities of daily living are largely independent.  He can go out independently but his father has to escort him most of the time.

55.  Physical examination shows the Plaintiff in apparent good health.  He walked with normal gait and has natural head and neck movement.  Examination of neck and right shoulder did not review any abnormality and there was no muscle spasm.  Radiological examination of cervical spine showed normal alignment, preserved lordosis, no instability revealed on flexion-extension film, discs spaces well preserved and there is no bony lesion.  I do not repeat the details of all the examination which has been set out in the report.  In conclusion, the experts joint said –

“Upon physical examination, Mr. Law reported diffuse tenderness over right paraspinal muscles, trapezius and around scapular region. However, there was no local tender spot detected. The range of motion of both neck and right shoulder in all directions were full and no muscle weakness was demonstrated. The clicking sound over the right shoulder on movement was not detected. There was no sign suggestive of instability, impingement, or neurological impairment of right upper limb.

We agree that [the Plaintiff’s] neck and right shoulder are now in stable and good condition.  The persistent pain that lasts for almost three years cannot be fully explained by orthopaedic means/pathology.”

56.  The 2 orthopaedic experts agree that the Plaintiff sustained a minor sprain injury of the soft tissue around the right side of neck and the right shoulder during the accident.  The minor sprained neck and right shoulder have long acquired a stage of maximal medical improvement. Further orthopaedic treatment is not required.  Development of complication is not expected.  The overall prognosis is excellent/good.

57.  Both experts agree that the Plaintiff could resume delivery work in full capacity.  Dr. Tsoi opines that the Plaintiff has very mild degree of muscle discomfort after prolonged and strenuous activities involving the injured areas.  But Dr. Yip opines that the Plaintiff has no permanent impairment of the whole person.

58.  In summing up, orthopaedic experts evidence do not support the Plaintiff’s claim of neck pain and shoulder pain, or that he could not return to work as a delivery workers.  In fact, the prognosis is excellent.

The Plaintiff’s evidence

59.  The Plaintiff gave evidence and adopted his witness statement dated 19 April 2010 as his evidence in chief.  After discharge from KCH on 13 January 2007, and since 25 January 2007, the Plaintiff is a regular out-patient of Kwai Chung Child and Adolescent Psychiatric Centre until now.  And he had been prescribed medicine.

60.  He said he resigned on 3 December 2006 because his neck and shoulder had pain, and his psychiatric disorder was getting worse.  He had attempted to look for new employment through the Labour Department.  But due to the injuries, and because of his psychiatric illness, his memory and concentration having deteriorated, and his low education, he could not find any job.

61.  In cross examination, the Plaintiff said he could not recall the accident now because his mind was not working well.  The condition started to deteriorates 2 to 3 years ago.

62.  Ms. Lau pointed out the Plaintiff that his witness was prepared in 2010, more than 3 years from the date of accident.  But he could give a lot of details.  He was questioned on why he could give the details if his memory has been severely impaired as alleged.  Initially, he said after the accident and when he still had a clear mind, he recounted the details to his father, who assisted him to provide the details to his solicitors.  But later, he said his memory 3 years after the accident is still good.  Thereafter, he could not remember so well.  He said that for these 2 years, after taking the medicine, his mind became sluggish.

63.  And while the Plaintiff said he had a poor memory, when he was cross examined on the tax return on his job with company called 恒昌, he could immediately explained in the witness box that the reported income of $7,500 is wrong as, he can remember that his salary was $9,000.  It appears that the report of $7,500 is correct as he has not worked the whole month for恒昌.  What look odd is he could still remember his wages agreed with恒昌 which cast doubt on his claim of loss of memory.

64.  The father of the Plaintiff (“PW2”) has also given evidence.  He said the Plaintiff started working after Form 3 education. He worked in transport industry, and work as lorry attendant, container workers, and similar jobs.  And when cross-examined, he disclosed that the first job of the Plaintiff is to work for his factory.

65.  PW2 said after the accident, the Plaintiff had a change in character.  He was told by the Plaintiff that he heard some unknown sound and was disturbed.  His character became weird.  And on 6 December 2006, the Plaintiff was arrested by the Police.  He was sent to Kwan Chung Hospital and discharged on 8 December 2006.  On 12 December 2006, the Plaintiff refused to go to Princess Margaret Hospital for treatment and he called the Police for assistance.

66.  PW2 also claims that he took care of the Plaintiff after the injury.  And after the injury, the neck and shoulder pain of the Plaintiff cannot be cured.  Apart from painkiller from hospital, the Plaintiff would use analgesic oil and tape.  He had bad temper when he was painful.

67.  And he said the Plaintiff was disturbed by the sound he heard.  He had hot temper.  He would shout toward the window, speak foul language, and throw thing at home.  He cannot sleep at night and had to have sleeping pill.

68.  He also said that the Plaintiff had poor memory.  He could forget his key when going out.  When asked to buy something, he would come back empty hand.  And other than going out for meal, and going to the park occasionally, the Plaintiff would stay home refusing to go out.  He lost his friends.

Discussion and Ruling

69.  And on his psychotic symptoms, I am greatly assisted by the experts.  I cannot see any reason to doubt the conclusion of the psychiatric experts.  It is apparent from the detail information set out in the report that they have considered all the medical notes from the treating doctors.  They have examined the Plaintiff in details and carried out professional examination to assess the genuineness of the Plaintiff’s complaints.  I adopt entirely their conclusion that the Plaintiff does not suffer from any genuine psychotic disorder, other than the brief psychotic disorder explained herein above.

70.  As for the medical notes/reports from treating doctors, they are evidence of fact that the Plaintiff has been treated by them.  It is doubtful if the comments by his treating psychiatrist are correct as they must rely on the complaint from the Plaintiff.  There is no evidence to suggest that they have carried detail examination as the experts have done. And I adopt the opinion of the expert that for patient with abnormal sick role, he would deceive the treating doctor.  There is little weight in these reports to support the Plaintiff’s case that he suffered from psychotic disorder.

71.  In conclusion, there is no medical expert evidence to support the Plaintiff’s claim that he suffered from psychotic disorder except for the brief psychotic disorder.

72.  I have considered the orthopaedic experts’ evidence and both experts agree that the persistent neck and should pain could not be explained by orthopaedic means.  They have long acquired maximal medical improvement and not further orthopaedic treatment is required.  At the highest, Dr. Tsoi assessed that the Plaintiff may have very mild degree of muscle discomfort after prolonged and strenuous activities.  Again, the neck and shoulder injuries that persisted as complained of by the Plaintiff are not supported by orthopaedic expert evidence.  I accept their opinion that the Plaintiff has a minor sprain injury of the soft tissue around the right side of neck and right shoulder which have recovered fully.

73.  On the evidence of the Plaintiff, I agree with Ms. Lau that the Plaintiff is not a reliable witness.  The Plaintiff has been giving flipping answer to Ms. Lau when being cross examined on his memory.  I do not believe his evidence that he had a poor memory, and that he had and still has the psychotic symptoms.

74.  In conclusion, I do not believe the Plaintiff’s evidence on his injuries.

75.  The evidence of PW2 adds little as he is only reporting the behaviour and appearance of the Plaintiff at home.  He is not in a position to say if the behaviour is genuine or not.  At the end, it is the credibility of the Plaintiff which is in issue.

76.  In conclusion, I found that the Plaintiff has not prove the psychotic disorder as he suggested and I adopt the opinion of the psychiatric experts that he has recovered short after he was discharged from Kwai Chung Hospital.  I also found that his neck and shoulder injuries have recovered.  Given that the Plaintiff did not have to go for treatment until a few days after the injury, and he did not need medical treatment for his neck and shoulder other than the initial treatment by PMH and Caritas Hospital, I found that he must has recovered from his neck and shoulder shortly after the treatment.

77.  It is the opinion of all 4 experts that the Plaintiff could return to his pre-accident job. 

78.  It is the evidence of the Plaintiff that he had attempted to look for jobs, but failed.  I doubt very much if such attempts are genuine attempt to look for job.  I adopt their opinion of the experts and conclude that the Plaintiff is mentally and physically capable of returning to his pre-accident job after the sick leave period that I would discussion later.

79.  Sick leave certificate up to date has been produced.  But because of my finding, I would not accept the certificate as proof that the Plaintiff could not work until now.

80.  Ms. Lau is not really challenging that the sick leave of 6 months is reasonable.  And the sick leave recommended by the experts range from 2 to 6 months.  I consider their conclusion more reliable and I am prepared to accept 6 month is reasonable. 

81.  With these findings on his injuries, I come to consider the individual claim of the Plaintiff.

PSLA

82.  Ms. Lau submits that the award should be $100,000.  She refers me to a number of cases, including Tam Fu Yip Fip v. Sincere Engineering & Trading Co. Ltd. HCPI No. 473 of 2006, Siu Leung Shang Peter v. Chung Wai Ming HCPI No. 43 of 2006, and Wong Kin Kee v. Ng Chi Lam DCPI No. 555 of 2009 in her closing submission, which I do not intend to repeat.  In gist, she is submitting that for the whiplash injury of the Plaintiff, PSLA should be around $30,000 to $90,000.  In all these cases, the injury is whiplash injury, and pain.

83.  Mr. Chan also submitted a number of cases as set out in his closing submission and I do not intend to repeat.  In most of the cases, the victims suffer from mental disorder in addition to the orthopaedic injuries.  The award is between $200,000 to $350,000.  The mental disorder of those plaintiffs had resulted in permanent disability, which is different from the injury to the Plaintiff.

84.  While I do not believe the evidence of the Plaintiff that he suffered permanent mental disorder as he said, it is not disputed that he had a traffic accident and he has a minor sprain neck injury. And I found that he has an acute psychiatric disorder, which as a result he was hospitalized for about a month.  This would be a factor I have to take into account in assessing his PSLA.  And he would have to have follow-up treatment in the sick leave period.

85.  I found a reasonable sum for PSLA at $150,000.

Loss of Earning

86.  The Plaintiff has a basic salary of $280 a day and he would work an average of 28 days per month.  This is not disputed and I accept his evidence and use $8,140 as his monthly income in assessing his loss of earning.

87.  But given the mental disorder of the Plaintiff, I am prepared to allow a longer period for him to settle down, and to look for a new job.  Another period of 4 months in addition to the sick leave period is reasonable.

88.  The loss of 10 months’ earnings is $8,140 x 105% x 10 = HK$85,470.00.

89.  There is no further loss after the said period as the Plaintiff should be able to return to work.

Loss of Earning Capacity

90.  Ms. Lau submits that there is no loss of earning capacity.  I cannot agree.  Even on the evidence of the experts, the Plaintiff would suffer some disadvantage in the labour market.  I found that a sum of $50,000 is reasonable.

Special Damages

91.  The Defendants do not oppose the claim for medical expense of $4,504 and travelling expenses of $1,200.  I award accordingly.

92.  The Plaintiff also claims expense of tonic food in the sum of $13,000.  The Defendant opposes the claim.  There is no receipt for this expense.  And there is no evidence why the tonic food is required. The Plaintiff only explained that it is for special soup.

93.  I agree with Ms. Lau that the claim is excessive and I would allow a sum of $5,000.

94.  Dr. Law recommends one further year of psychiatric treatment.  But he agrees with Dr. Wong that the psychiatric disorder of the Plaintiff as claimed as at examination is not genuine.  While he may be cautious to suggest some treatment for the Plaintiff to recover from his condition, I cannot agree that this is caused by the injury.  As such, I would make no award on future medical expenses and travelling expense.

Conclusion

95.  The total award is –

(i)	PSLA	$150,000
(ii)	Loss of earning & MPF	$85,470
(iii)	Loss of earning capacity	$50,000
(iv)	Special damages	$8,700
(v)	Costs of future medical treatment and related travelling expenses	nil
	LESS
(vi)	Employees Compensation	-$123,764
	Total :	$170,406
		=======

96.  I grant judgment to the Plaintiff for the said sum of $170,406.00.  For general damages, there will be interest at the rate of 2% p.a. from date of writ to the date hereof.  As to special damages, interest shall be calculated at half of the judgment rate from date of accident to the date hereof.

97.  I also give an order nisi that the Plaintiff do have costs of the assessment with certificate for counsel to be assessed if not agreed and Plaintiff’s own costs be taxed according to Legal Aid Regulations. Since the award is within the jurisdiction of the District Court, the cost is to be taxed on District Court Scale.  The order nisi shall become absolute in 14 days.