MA CHUNG LUNG v. YAO POON TONG

HCPI 719/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 719 OF 2006

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ASSESSMENT

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The Assessment

1. This is an assessment of damages.

The Background

2. The Plaintiff was born on 20 March 1954.  He was educated in Hong Kong up to Primary 2.  Upon being grown up, he started to work as a driver.  Up to the date of accident on 29 July 2005, he was a taxi driver for over 16 years.

3. At about 12:15 a.m. on the said date of accident, he was driving taxi KE7315 carrying 2 passengers, along the eastbound of Tin Hau Temple Road uphill when the Defendant, driving another taxi KY6125, negligently hit the back of the Plaintiff’s taxi.  The Defendant was subsequently convicted of careless during under ESS29135/2005.

4. After the accident, the 2 passengers left the scene themselves, but the Plaintiff was sent to Ruttonjee and Tang Shiu Kin Hospital (“TSK”) for treatment.

“	2.	On examination, the following conditions were found:
		I)	Tenderness over right scalp.
		II)	Tenderness of left anterior chest wall.
		III)	Tenderness of left neck.
		IV)	Tenderness over lumbar spine.
		V)	No neurological deficit.
		VI)	Skull, cervical spine, lumbar spine, chest and left hand X-ray did not reveal any fracture.
	3.	He was treated and transferred to orthopedics ward, PYNEH.”
		(Report dated 6 February 2006)

5. Then, in about the following year, he attended 11 sessions of orthopaedics and 12 sessions of  physiotherapy.  Sick leaves were granted to him for 1 year and 9 months appropriately until 4 March 2007.

6. By the medical report dated 23 May 2006 of Pamela Youde Nethersole Eastern Hospital (“PYNEH”), the injury of the Plaintiff was described in the following.

“

…… He complained of neck pain, left lower chest pain and left buttock pain afterwards.

Physical examination showed tenderness over posterior neck region, left lower chest region and left buttock area.  There were no significant external wounds detected and there were no associated neurological deficit.  Radiographs of neck, left lower chest and pelvis did not show any fractures.  He was treated conservatively and he was discharged on 29 July 2005 in view of stable clinical condition.  Regular outpatient follow up was arranged upon discharge.  During regular specialist outpatient follow up, his condition was static except he still complained of residual neck pain and left lower chest wall pain.  He tried to resume work but failed due to limited neck rotation and physical therapy was arranged together with magnetic resonance imaging of cervical spine.  His condition was improved after physical therapy and subsequent management needs to be determined after MRI result was available.”

7. By the physiotherapy report dated 15 March 2007 of PYNEH, the Plaintiff was said:

“

…… He first attended treatment on 14 February 2006.  On initial assessment, he complained of neck pain and there was decreased range of motion of his neck, especially on extension.  Heat therapy, intermitted neck traction, neck exercises and advice on neck care were all included in his treatment program.  There was good progress with full range of motion of his neck.  He was discharged from physiotherapy after he last attended treatment on 12 June 2006 ……”

8. Further, the Occupational Therapist stated on 19 March 2007 that:

“	The above named patient was diagnosed neck injury and referred to Occupational Therapy Department for work assessment.
	2.	He attended outpatient service at our department on 26 January 2007, which was 18 months after injury.  On initial assessment, his major complaints were stretching neck pain and numbness over bilateral upper limbs.  The active range of motion (AROM) of neck was satisfactory, only mild limitation in right rotation and lateral flexions.  The AROM of right shoulder was decreased to mid-range, stiffness was observed.  The grip strength was 10kgf and 26kgf over right and left hand respectively.  In sensory aspect, it was found decreased 50% pinprick sensation over right C5 to C8 dermatone and left C7 to C8 dermatone.  The isometric right steering wheel in clockwise and counter-clockwise were maximally 6lbs and 5lbs respectively, which was about 75% to 63% of strength level as left upper limb.
	3.	Since patient showed right upper limb weakness, it was recommended for comprehensive driving assessment from Rehabaid to determine actual driving performance and suitability of returning work as a taxi driver.”

9. On 26 March 2007, MRI was conducted upon the Plaintiff.  It was shown that the Plaintiff had been suffering from moderate multi-level degeneration on his neck.  Particulars are:

“	1.	……
	2.	In C2/3, small central herniation.  Borderline spinal canal.
	3.	In C3/4, small central herniation.  Mild spinal stenosis.  The right C3/4 neural foramen is mildly compromised by uncinate process hypertrophy.
	4.	In C4/5, large left sided posterior osteophyte.  Mild spinal stenosis.  The left C4/5 neural foramen is moderately compromised by the posterior osteophyte, uncinate process hypertrophy and facet degeneration.  The right C4/5 neural foramen is mildly compromised by the facet degeneration.
	5.	In C5/6, a large posterior osteophyte with left sided eccentricity.  Moderate spinal stenosis.  Both C5/6 neural foramina are markedly comprised bilaterally by the posterior osteophyte and uncinate process hypertrophy.
	6.	In C6/7, a medium size posterior osteophyte with left sided eccentricity.  Mild spinal stenosis.  The left C6/7 neural foramen is markedly compromised by the posterior osteophyte and uncinate process hypertrophy.”

10. In the meantime the Plaintiff commenced the present proceedings on 21 August 2006.  The Defendant did not contest the liability.  On 17 October 2006, an order for judgment on liability was entered for the Plaintiff, leaving damages to be assessed.  It was the Plaintiff’s case that he suffered serious injury from the accident.  He could no longer work as a taxi-driver.  On the other hand, the Defendant argued that the Plaintiff had exaggerated his injury and he should have been resumed his pre-injury job without difficulty.

11. The parties appeared before me on 4 and 10 October 2007 for the assessment.  Mr. Raymond Lau of Counsel acted for the Plaintiff and Mr. C.K. Chan of Counsel represented the Defendant.  Having heard from them, I reserved my assessment to be handed down.  I now do so.

The medical evidence: Dr. Chan v Dr. Lam?

12. Whose medical evidence is to be preferred by this Court?  After consideration, on balance, I prefer to accept the evidence of the expert of the Defendant, Dr. Lam.

(a)	The medical reports prepared by the Government Hospital were not disputed.  They are in line with the reports of Dr. Lam.  To summarize, they show that the injury suffered by the Plaintiff under the accident is minor.  Though it has taken some time for him to recover, he has done so.  The current complaints are exaggerated and more likely than not caused by pre-existing degeneration of the Plaintiff.
(b)	As pointed out by Mr. Chan of Counsel, Dr. Chan’s reports contained some inaccurate information.
	(i)	The Plaintiff did not complain to the Government doctors the right shoulder after the accident.  It was therefore not recorded on the Hospital reports.  However, Dr. Chan included the following as the injury suffered by the Plaintiff:
		“	…… In addition, he also had soreness, weakness and painful restriction of movement of the right shoulder, as well as low back pain, and residual chest pain ……”
	(ii)	The Hospital reports said that the Plaintiff was improved and there was good progress, but, Dr. Chan took that:
		“	…… Unfortunately, the symptoms did not improve significantly despite prolonged courses of treatments, including neck traction, mobilizing and strengthening exercises, for more than 8 months ……”
(c)	Both Dr. Chan and Dr. Lam prepared two reports.  When they complied the first one, MRI result was not available to them.  Nonetheless, by then, Dr. Lam could predict degeneration of neck in the Plaintiff, and the same was subsequently confirmed by the MRI report.

The sick leave: Dr. Lam v the Government doctors?

13. Mr. Chan attempted to argue that the sick leave granted to the Plaintiff was too much.  Mr. Lau argued otherwise and submitted a Judgment of the Hon. Chung J. dated 24 January 2000 under HCPI 889/1998 to support him.  In that case, the learned Judge commented, inter alia, that the treating government doctor should be in a better position to decide the appropriate period of sick leave.  I respectfully adopt the principle and hold that it also applies herein.

The Plaintiff: a reliable witness?

14. Much of the findings in the present assessment depend on the credibility of the Plaintiff.  However, with respect, apart from his monthly salary, the Plaintiff is not a witness that can be relied upon by the Court.

(a)	His injury is not consistent with the various Government medical reports.  I find that the accident only caused him a minor injury on his head and left upper body.  There is exaggeration of pain suffered by the Plaintiff.
(b)	Nonetheless, the injury did trigger his pre-existing degeneration.
(c)	After the sick leave, the Plaintiff should have resumed his pre-injury job as a taxi driver.  He has not mitigated his loss.  There is conflict within his evidence.  He told Dr. Chan on or about 18 July 2006 that he had already tried to resume driving.  However, he had to rest for 2-3 hours after 1-2 hours of driving.  However, at the assessment, he deposed that he only attempted to resume driving a few months ago before the hearing.
(d)	The Plaintiff has failed to attend Rehabaid to test his suitability of returning work as a taxi driver.  He explained that he was waiting for the authority concerned to rearrange another appointment when he had missed one already fixed.  Such explanation is far from satisfactory and unbelievable in the circumstances.
(e)	Based on the evidence before me, I accept that, before the accident, he earned about $14,300 per month, upon the basis of $550 per day (a figure slightly above the figure provided by the Transport Department), for 26 days per month.

Assessment

15. Based on the above findings, I have the following assessment of the Plaintiff’s damages suffered.

PSLA

16. Mr. Lau relied on a number of authorities to support the Plaintiff’s claim for $350,000 PSLA.  However, they all concerned more serious injury amounting to whiplash injury, i.e. injury of the soft issue on the neck caused by abrupt flexion or extension of the same in traffic accident.  In the Plaintiff’s case, it was relatively minor.  The extent is similar to the authority of Chiu Wing Sze v Chan Ying Wai [2001] 2 HKLRD 92, Lam Chiu v Poon Tat Hing [2002] 1 HKLRD D14 and Tang Wai Tak v Chiu Hing Construction & Transportation Co. Ltd. unrep. HCPI 188 of 2006, 23 August 2007.  In my assessment, a sum of $120,000 should be taken as a starting point.  Then, a 30% discount is to be applied to reflect the pre-existing degeneration of the Plaintiff as in Kumar v Yau lee Construction Co. [2007] HKEC 753.  It results in a sum of $84,000.

Pre-trial loss of earnings

17. Since the accident on 29 July 2005, the Government doctors have granted sick leave to the Plaintiff up to 4 March 2007.  On balance, the Plaintiff should rest during such period.  Taking the finding of the monthly earning of $14,300 and the 30% discount, I find the pre-trial loss of earnings by the Plaintiff a sum of $191,482 ($14,300 x 19 months and 4 days x 70%).

Post-trial loss of earnings/loss of earning capacity

18. In my assessment, there are no damages of post-trial loss of earning and loss of earning capacity for the Plaintiff.

Special Damages

19. The parties agreed the special damages at the sum of $5,720.

Summary

20. In conclusion, I award the following damages to the Plaintiff.

		$
(a)	PSLA	84,000
(b)	Pre-trial loss of earnings	191,482
(c)	Special damages	5,720
		205,602

Interest

21. The Plaintiff should be entitled to interest on PSLA at 2% per annum from the date of the Writ herein until the date hereof.  Further, as to special damages, interest is to be calculated from the date of accident at half judgment rate of 5.4% per annum until today.

Costs

22. There is an order nisi that the Plaintiff is entitled to costs of the assessment, including Certificate for Counsel on 4 and 10 October 2007 on District Court scale, to be taxed if not agreed.