CHENG CHI HONG v. LO CHI HUNG

HCPI 330/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 330 OF 2004

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ASSESSMENT OF DAMAGES

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Background

1. By the Statement of Claim filed herein dated 20 April 2004, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a private vehicle bearing registration number JU2622 (“the Vehicle”).

2. Interlocutory judgment on liability was obtained on 1 September 2004 with damages to be assessed.

The Plaintiff’s Case

3. On or about 4 January 2002, the Plaintiff was a front seat passenger of the Vehicle driven by the Defendant.  At about 0835 hours, while the Vehicle was traveling along the 2nd lane of Castle Peak Road (North Bound), the Defendant suddenly cut into the 1st lane of the said road and as a result of which the said Vehicle collided with the nearside rear of a bus.  By reason thereof, the Plaintiff suffered serious injuries.

4. The Plaintiff was born on 5 October 1979.  He was 23 years old when the accident took place.  He was 26 at the time of this assessment.

5. After the accident, the Plaintiff was sent to the Tuen Mun Hospital where he was diagnosed to have suffered

(a)	Right hip dislocation;
(b)	Fracture of the right femoral head; and
(c)	Laceration over his right eye.

6. Operative treatment was arranged on the same day.  The right hip was reduced by open method.  The bone fragment was removed and the facial laceration was sutured.  The Plaintiff was discharged home on 12 January 2002.  After the facial wound healed, a contracted, hypertrophic scar was found at the lateral side of his right eyebrow.

7. Thereafter, the Plaintiff received follow-up treatments at the Orthopaedic clinic of Tuen Mun Hospital until late 2003.

8. In or about November 2002, the Plaintiff started to have back pain.  MRI scan revealed mild degeneration of the L4/5 and L5/S1 intervertebral disc.  There was also mild disc protrusion at L4/5 level.

9. On 3 June 2004, the Plaintiff was admitted to the Anaesthetics Department of Tuen Mun Hospital to receive pain treatment for his back pain.  The Plaintiff was discharged home on 7 June 2004 and is still on long term medication for pain relief.  After the accident, the Plaintiff had attempted to return to work as a driver but quitted 2 days later owing to persistent back and right hip pain.

10. The Plaintiff was granted sick leave from 4 January 2002 to 26 May 2003 and from 3 June 2004 to 19 July 2004 respectively.

11. The Plaintiff complained in his Revised Statement of Damages dated 6 October 2004, that he was still suffering from

(i)	Right hip pain and stiffness
(ii)	Low back pain
(iii)	Right lower limb pain
(iv)	Reduced tolerance for standing and sitting
(v)	Inability to squat fully
(vi)	Feeling scared when traveling on high speed vehicle

12. The Plaintiff was examined by Dr. Danny Tsoi (for the Defendant) on 19 February 2004.  In his report dated 23 February 2004, Dr. Tsoi gave the following diagnosis and prognosis:

(a)	the Plaintiff walked with normal gait;
(b)	mild wasting of right gluteal muscle and wasting of right thigh and calf muscles;
(c)	21 cm posterolateral surgical scar over right hip;
(d)	reduced flexion, abduction and internal rotation at right hip;
(e)	mild degree of scoliosis convex to right;
(f)	the laceration eyelid healed up uneventfully after suturing and left some degree of cosmetic disability;
(g)	stiffness of the right hip towards all planes was noticed; such stiffness is permanent;
(h)	the thigh and calf wasting accounts for 13% permanent impairment of the right lower limb which translates to 5% permanent impairment of the whole person;
(i)	tenderness was noticed over the right paraspinal muscles and around the gluteal region; residual pain is expected but probably not as severe as the Plaintiff described;
(j)	assuming the Plaintiff suffers from genuine protruded lumbar disc, it equates 5% permanent impairment of the whole person;
(k)	combined overall permanent impairment is 10%; and
(l)	the Plaintiff should have no problem in resuming driving work; the Plaintiff may not be able to deliver heavy objects, especially if the duties involve excessive climbing, squatting and lifting.  However he is not precluded from delivering light to medium weight objects up and down the lorries.

13. The Plaintiff was examined by his doctor, Dr. Lam Kwong Chin, on 26 February 2004.  In his medical report dated 9 March 2004, Dr. Lam gave the following diagnosis and prognosis:

(a)	loss of lumbar and lordosis;
(b)	local tenderness at midline from mid-thoracic to upper sacrum, maximal at thoraco-lumbar and lumbosacral junctions;
(c)	tenderness at bilateral paraspinal areas at lumbar spine;
(d)	reduced forward flexion, backward extension and sideward flexion;
(e)	wasting or right thigh and calf muscle;
(f)	mild wasting of buttock muscles;
(g)	25 cm surgical scar at lateral side;
(h)	reduced right hip flexion, internal rotation, abduction and adduction;
(i)	degenerative marginal osteophytosis is seen at L5 vertebra; L4/L5 disc, space narrowed; compatible with mild lumbar spondylosis;
(j)	the Plaintiff had a satisfactory weight bearing capacity;
(k)	the limitation in hip range of motion together with pain related impairment means 9% impairment;
(l)	the back problems mean another 5% impairment of the whole person; loss of earning capacity at 15%; and
(m)	the Plaintiff is not fit to have work that need prolonged standing, weight lifting, climbing or squatting.  The Plaintiff would have difficulty in returning to work as a delivery worker.  He should be able to work as a driver but would also need to take intermittent rest.

14. The Plaintiff was the only witness.  He confirmed the contents of his written statement.  He was unemployed after the accident.  Prior to the accident, he worked as delivery worker to perform delivery of goods and manual lifting works.  The goods were normally about 10 odd to 20 lb of weight.  The Plaintiff complained of suffering from back pain and right hip pain after prolonged (1 to 2 hours) standing, walking or sitting.

15. The Plaintiff said that sometimes he was waken up by the pain.  After the accident, he had tried to drive but the pain at his right leg nearly caused traffic accident.  The Plaintiff had found a job as driver in 2003.  However, he just worked for 2 days as the pain prevented him from going on with the job which involved moving goods and prolonged waiting inside a light goods vehicle.

16. It should be noted that during cross examination, the Plaintiff said that after prolong walking for 4 to 5 hours, he needed to find a place to sit down and take a rest.  Further, he sat inside the Court giving evidence for more than 2 hours without feeling any discomfort since he had taken pain killers.

17. It is further not under dispute that the Plaintiff started to learn driving medium goods vehicle in May 2004 and obtained the driving licence in June 2004.  However, the Plaintiff maintained that he had no intention to work as a professional driver as prolonged sitting will cause him pain.  Further, the Plaintiff’s right leg will also become less dexterous and driving will be very dangerous.

Pain, Suffering and Loss of Amenities

18. A surveillance video record taken on 20 May 2004 was shown in Court.  It appears that the daily activities of the Plaintiff are not affected by the back/hip pain.  He walked with a normal gait.

19. Mr. Hemmings, Counsel for the Defendant, submitted that the award under this head ought not exceed $250,000.  The following are the authorities relied on by the Defendant.

(i)	Ip Yiu Fai v Chan Che Kwong, HCPI 445/98 (16 January 1999), PSLA award $200,000;
(ii)	Lam Pik Kuen v Lee Fai Ming, HCPI 7/98 (18 May 2000), PSLA award $150,000;
(iii)	Wong Lai Kai v Wu Chan Choi, HCPI 962/96 (22 April 1999), PSLA award $264,000;
(iv)	Yu Kok Wing v Lee Tim Loi, [2001] 2 HKLRD 306, PSLA award $350,000; and
(v)	Lam Sau Ying v Shiu Yat Sang, HCPI 892/03, PSLA award $250,000.

20. Mr. Lau, Counsel for the Plaintiff relied on the following cases and submitted that an award of $400,000 was appropriate.

(i)	Ip Lam Yuk Lin v Yeung Fat [1991] 2 HKC 480, (PSLA award $80,000; half of the then lower end of “serious injuries”);
(ii)	Leung Chun Tung v Siu Wai Cheong, HCPI 883/95, PSLA award $600,000;
(iii)	Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture, [2000] 1 HKLRD 796, PSLA award $450,000; and
(iv)	Wang Yuk Kin v Hui Chun Wah, HCPI 592/03, PSLA award $400,000.

21. The Court when considering this head had, apart from the cases referred to by the parties, also considered Ku Chiu Chung v Tang Tin Sung, HCPI 288/2001 (20 September 2002), PSLA award $375,000

-	Close fracture of the left acetabulum with dislocation of the left hip; open fracture of the left proximal tibia; open complete tear of the anterior cruciate ligament of the left knee; open partial tear of the lateral meniscus of the left knee; and closed fracture of the shaft of the left tibia;
-	2 operations
-	hospitalized for 1 month 18 days; then O/P physiotherapy;
-	could not stand long
-	could not carry heavy weight
-	had trouble walking upstairs

22. In all the circumstances of this case and in the light of the authorities aforementioned, the reasonable and fair award under this head is $300,000.

Loss of Pre-trial Earnings

23. It is common ground that the Plaintiff worked as a driver-cum-delivery with an earning of $10,000 per month.

24. He was granted sick leave for 2 periods of time:

(i)	4 January 2002 to 26 May 2003; and
(ii)	3 June 2004 to 19 July 2004.

25. The loss of earnings for those periods are:

(i)	(28/31 x $10,000 + $10,000 x 15 + 26/31 x $10,000) =
	($9,032 + $150,000 + $8,387) =	$167,419
(ii)	(28/30 x $10,000 + 19/31 x $10,000) =
	$9,333 + $6,129 =	$15,462
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		$182,881

26. The Court has now to decide whether the Plaintiff suffered any loss for the following periods:

(i)	27 May 2003 to 2 June 2004; and
(ii)	20 July 2004 to 17 February 2005.

27. The Plaintiff accepted that he was able to earn at least $8,000 per month as a cleaner.  The Defendant however contended that the Plaintiff was able to return to his pre-injury work and would have suffered no loss.

28. It should be noted that Dr. Lam (the Plaintiff’s doctor) was of the view that the Plaintiff should be able to work as a driver although he was not fit for works that need prolonged standing, weight lifting, climbing or squatting.  This, however, should be read in the light of Dr. Lam’s findings and assessment that the Plaintiff had a satisfactory weight bearing capacity.  According to the Plaintiff, the goods which he handled were around 10 odd lbs.  That should be within the capacity of the Plaintiff.

29. Further, the Plaintiff started to learn driving medium goods vehicle in May 2004 (towards the end of the Plaintiff’s first sick leave period).  Should the Plaintiff really suffer from pain which prevented him from driving, there is no reason for the Plaintiff to learn to drive medium goods vehicle at all.  He well appreciated his problem – cannot stand prolonged sitting and thus cannot return to his previous job.  Why should he receive training as a medium goods vehicle?  In fact, the learning process might have caused him further pain.

30. For the reason aforesaid, I found that the Plaintiff was able to work as a driver and also fit to return to his previous job.  In the premises, the Plaintiff is not entitled to any other pre-trial loss of earnings except as provided for hereinabove.

Loss of Post-trial Earnings

31. Likewise, the Plaintiff is not entitled to any award under this head.

Loss of Earning Capacity

32. The Plaintiff submitted that $128,000 is a reasonable award under this head.  The Defendant contended no award should be made.

33. As Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C

“The consideration of this head of damages should be made in two stages.  (1) Is there a “substantial” or “real” risk that a Plaintiff will lose his present job at some time before the estimated end of his working life?  (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materializes, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

34. While I found that the Plaintiff was able to work as a driver, he was handicapped in various ways: not fit (i) to deliver heavy objects, (ii) for excessive climbing, squatting and lifting.  By reason of these, I found that the Plaintiff had established the requisite risk to satisfy the test.

35. The Plaintiff had submitted that for the purpose of post-trial loss of earnings, the multiplier should be 16.  He relied on Tang Ming Kwan v Yip Chi Ming [1986] HKLY 419 (22 at accident; 26 at trial; multiplier 16) and Ng Tat Ping v Cho Shui Leung [2001] HKLY 428 (26 at trial; multiplier 16).

36. The Court has considered some other authorities:

(i)	Tsang Siu Hong v Kong Hoi For, HCPI 173 of 2001, 10 March 2003 (24 at trial; multiplier 15);
(ii)	Wong Man Kit v Poon Chi Man, HCPI 393 of 1999, 16 June 2000 (22 at trial; multiplier 16); and
(iii)	Sui Wai Man v Lee Chi Chong, HCPI 174 of 1994, 9 November 1998 (27 at trial; multiplier 15).

37. Having considered the cases, in my judgment, the reasonable multiplier in this case for loss of future earning, if any award is to be made, is 14.

38. Following the judgment of Yu Kok Wing, I use 14 as multiplier and award a sum of HK$10,000 x 14 = $140,000 under this head.

Special Damages

39. It is agreed at $11,136.50.

Summary of Quantum

40. In summary, the award is as follows:

(a)	PSLA	$300,000.00
(b)	Loss of Pre-trial Earnings	182,881.00
(c)	Loss of Pre-trial MPF (5% of (b))	9,144.00
(d)	Loss of Earning Capacity	140,000.00
(e)	Special Damages	11,136.50
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		$643,161.50

Interest

41. Interest at half judgment rate will be awarded or special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

42. I make an order nisi, to become absolute within 14 days from the date of handing down of this judgment, that the Defendant do pay the Plaintiff the costs at District Court Scale to be taxed if not agreed.  Certificate to Counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.