DCPI 3123/2022
[2024] HKDC 1638
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
PERSONAL INJURIES ACTION NO 3123 OF 2022
________________________
BETWEEN
TING KA FUNG
Plaintiff
and
WONG KAI CHI（黃啟智）
1st Defendant
CPWVGS LIMITED
2nd Defendant
________________________
Before:
Master Charmaine Lo in Court
Date of Hearing:
8 July 2024
Date of Assessment of Damages:
4 October 2024
________________________
ASSESSMENT OF DAMAGES
________________________
1. This is an assessment of damages in a personal injury case in which the plaintiff, a student, while attending a TRX fitness class led by the 1st defendant, the instructor of the 2nd defendant, the class provider, fell onto the floor when parts of a training strap she was holding suddenly broke.
Procedural history
2. Interlocutory judgment on liability was entered against the 1st and 2nd defendants on 31 January 2023 leaving damages to be assessed.
3. The Notice of Appointment for Assessment of Damages was served by post on the 1st defendant at his last known address and the 2nd defendant at its latest registered office on 13 December 2023. Affirmation of service regarding the Assessment of Damages hearing was filed on 14 June 2024 and Mr Stephen Keung, Counsel for the plaintiff, confirmed there was no returned mail as at the date of the assessment hearing.
4. The 1st and 2nd defendants did not attend the assessment hearing. I was satisfied that notice of the assessment hearing had been duly given to the 1st and 2nd defendants. It was the 1st and 2nd defendant’s choice not to attend the assessment hearing. I proceeded with the assessment of damages in this case in the absence of the 1st and 2nd defendants.
The plaintiff’s case
5. The plaintiff was the only person who testified at the assessment of damages. She adopted her witness statement filed herein as part of her evidence in chief.
6. The plaintiff was born in 1976. At the time of the accident on 4 October 2021 where she sustained personal injuries (“the Accident”), she was aged 45. She worked as an Associate Director of a licensed insurance broker company. She is married and lives with her husband and two daughters, who were aged about 8 and 6 respectively at the time of the Accident. She enjoyed good health before the Accident.
7. On 4 October 2021 at about 7:30 pm, during a training resistance exercise class led by 1st defendant at the 2nd defendant’s studio (“the Studio”), while the plaintiff as instructed by the 1st defendant was holding with each of her hands a handle, each connected through a buckle to the end of a training strap extending down from the ceiling, in a “face pull” position with her back leaning towards the floor, one of the buckles suddenly broke, causing her to fall onto the floor.
Injuries and treatment
8. Immediately after the Accident, the plaintiff was in back and buttock pain. After some rest, she left the Studio and took a taxi with the help of her classmate, but during the ride, she was in worsened back and buttock pain and numbness, and unable to find a comfortable sitting position. After she arrived home, the pain worsened to the extent that she could neither sleep nor adjust her position in bed.
9. As a result, in the morning of the following day (ie 5 October 2021), the plaintiff attended the Accident & Emergency Department (“AED”) of Ruttonjee & Tang Shiu Kin Hospital (“RTSKH”). Medical examination showed occiput tenderness; mild muscle spasm; and coccyx and lower sacrum tenderness. X-ray of coccyx showed non-displaced radiolucent line through S5. X-ray of cervical spine showed decreased cervical lordosis. X-ray of lumbosacral spine showed decreased lumbar lordosis, and decreased disc space at L5/S1 with marginal osteophytes. The plaintiff was discharged with medications.
10. On the same day, the plaintiff consulted a registered Chinese medicine practitioner. Examination revealed sacrum and coccyx tenderness and exertion pain; and the clinical presentation was coccyx fracture.
11. From 7 October 2021 to 8 June 2022, the plaintiff underwent 12 rounds of bone-setting and Chinese medication treatment.
12. On 12 October 2021, the plaintiff was followed up at RTSKH. X-ray of coccyx showed non-displaced fracture of S5.
13. On 9 November 2021, the plaintiff was followed-up at RTSKH again. She was found to be clinically well.
14. The plaintiff was granted 36 days’ sick leave from 5 October to 9 November 2021.
15. On 15 February 2022, the plaintiff consulted a private Orthopaedics & Traumatology Specialist Dr Chan Shiu Wai (“Dr Chan”). She complained of persistent back and buttock pain, occasional lower limb shooting pain, and inability to sit for long. Examination showed tenderness over paraspinal muscles of lower lumbar area and over buttock. The range of motion of the lumbar spine was satisfactory. Neurological examination of the lower limbs was normal. The diagnosis was back and buttock injury with a crack over sacrococcygeal area; and the prognosis was that residual pain is not uncommon.
Expert evidence
16. By an order dated 29 June 2023, the plaintiff elects not to adduce expert evidence as to quantum in written or oral form; and the 1st and 2nd defendants are deemed not to adduce any expert medical evidence at the Assessment of Damages in this action.
17. There is thus no expert evidence for any of the parties herein.
Assessment of the plaintiff’s credibility
18. In assessing the credibility of the plaintiff, I bear in mind the general principles set out by Deputy High Court Judge Eugene Fung SC in his Judgment in Hui Cheung Fai & Another v Daiwa Development Limited & Others , HCA 1734/2009, 8 April 2014:
“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431 (Lord Pearce) […]
78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).
79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.
80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses' character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).
81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd's Rep 1 at 57:
‘Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.’
82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court's determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.
83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”
The plaintiff’s evidence and the factual findings
19. The plaintiff’s testimony is not subject to any challenge as the 1st and 2nd defendants have not been present in these proceedings. The plaintiff testified in a straightforward manner.
20. She testified that her physical condition has improved although there is still some pain in her lower back during weather change and upon prolonged sitting. Although she still could not carry heavy objects, she confirmed to be independent and capable in her activities of daily living. Her relationship with her daughters and husband have improved. She regarded her sexual activity with her husband to be normal though she still felt stressed at times due to fear of pain. Although she no longer engages in wakesurfing, she still runs and swims once a week. She goes for more gentle sports, such as yoga.
21. As for her work post-accident, she changed to a new job with similar work nature of financial planning in April 2024. Her current level of income is similar to her pre-accident level of income.
22. Her mental condition has improved and she no longer suffers from insomnia and does not need to take supplements (Vita Joy).
23. Regarding nourishing and tonic food expenses, the plaintiff claimed that she has given $3,000 odd to her mother as costs for food/ soup ingredients and materia medica. She also purchased and consumed 3 bottles of Vita Joy, costing about $300 to $400 each.
24. Overall, I find the plaintiff’s evidence credible and reliable, and I accept her evidence.
25. Based on these factual findings, I now turn to each head of claim.
PSLA
26. The plaintiff claimed a sum of $300,000 for damages for PSLA. Mr Keung has submitted that the amount claimed under this head by the plaintiff is reasonable based on the following authorities:-
(a) Lauw Ka Fong v Best City Limited , HCPI 436/2004, 27 May 2005;
(b) Yau Tsz Hin v Broadway Theatre Company Limited , HCPI 674/2010, 3 April 2013;
(c) Leung Lee Jasmine v Go Fresh (Hong Kong) Company Limited , DCPI 2425/2014, 28 October 2016;
(d) Wu Lai Shun v Chan Kwai Yu [2022] HKDC 29 ;
(e) Thapa Goma v Tina Global (HK) Limited & Another [2019] HKCFI 471 ;
(f) Wong Siu Chi v Tam Kut Yu [2022] HKDC 1284 ; and
(g) Yeung Sze v Win Art Design & Decoration Company Limited , HCPI 6/2000, 27 June 2001.
27. In addition to the above authorities cited to me, I have also considered the following authorities on PSLA:-
(a) Li Yin Yuk v Ng Chi Fai and Anor [2022] HKDC 1394 ;
(b) Chan Kwei Duen v East Country Co Ltd t/a Gold River Vietnamese Food Shop , DCPI 665/2005, 3 February 2006; and
(c) Ng Wai Tao v Siu Patrick Chun Wai and Anor [2023] HKDC 193 .
28. The PSLA awarded in the above cases ranged from $120,000 to $350,000. Having considered them, I am of the view that the PSLA in the present case is less serious than that in Li Yin Yuk , Wu Lai Shun and Thapa Goma , and more comparable to Chan Kwei Duen .
29. Given the nature of the plaintiff’s injuries and treatment, her occasional residual pain, I find that a fair and reasonable award for PSLA should be at $250,000 after taking into account inflation. I award such sum as damages for PSLA accordingly.
Pre-trial loss of earnings
30. The plaintiff claimed $89,520 (being 36 days’ pre-trial loss of earnings) under this head according to the Revised Statement of Damages (“RSOD”).
31. At the time of the Accident, the plaintiff was employed by Convoy Financial Services Limited (“Convoy”) and Oneplatform Asset Management, both under AGBA Group. She had no fixed basic salary but only allowance and commission. According to the 3 letters issued by Convoy all dated 18 August 2022 (“the Letters”), the plaintiff’s monthly earnings fluctuated from $12,050.27 to $196,662.79 between January 2020 to July 2022. Her average monthly earnings for the past 12 months preceding the Accident (October 2020 to September 2021) was about $74,212.67.
32. In Mr Keung’s written opening submissions, the figure of $74,212.67 was adopted to calculate the plaintiff’s pre-trial loss of earnings, giving a new total of $89,055.20 ($74,212.67/month / 30 days x 36 days) under this head.
33. The plaintiff was granted sick leave from 5 October to 9 November 2021, a total of 36 days, which she claimed she was unable to work and earn any income.
34. In the Consultation Summary of Dr Wong Yau Tak of the AED of RTSKH dated 9 November 2021, it is recorded that at the follow-up appointment of the same date, it was the plaintiff who “request SL certificate from date of injury as requested by her company because not return to work since injury”. In court, the plaintiff confirmed the same and explained that without sick leave certificate, she would be considered as absent from work and there would be deduction of wages by her employer. She further testified that during the 2 earlier consultations at RTSKH on 5 and 12 October 2021, there seems to be no discussions with the treating doctor(s) on sick leave.
35. The plaintiff testified that from her recollection, she did not meet many clients during the sick leave period and her contacts with them were only via phone. The plaintiff was not able to explain clearly the income pattern as shown on the Letters. She fairly conceded that it could not be seen from the Letters that she did not have any income during the sick leave period.
36. In determining the reasonable length of sick leave period, the court is not bound by the sick leave certificates. Ultimately, the question should be determined after taking into account all the evidence: see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210 . Further, in Choy Wai Chung v Chun Wo Construction & Engineering Co Ltd , CACV 172/2004, 15 July 2005, Rogers VP observed that “the judge cannot be bound by the mere issue of sick leave certificates: the issuance of such certificates would be primarily because of the subjective symptoms reported to the doctors by the plaintiff”.
37. In Pak Siu Hin Simon v J V Fitness Ltd , HCPI 574/2014, 15 May 2017 at paragraph 77, Madam Justice Au-Yeung said that “the fact that the plaintiff suffered pain did not mean that he would be entitled to sick leave. People may suffer pain for all sorts of reason and that would not prevent them from discharging their duties in full. Employees do not go to work only when they are 100% fit and efficient”.
38. Further, in Chan Sze Yuen v Tin Wo Engineering Co Ltd and Others , HCPI 427/2008, 5 February 2016, Master Leong commented at paragraph 17 that “we do not go to work only when we are 100% fit and efficient. I cannot imagine that, for example, any professional football player only play matches when he is perfectly fit. Any professional (or even amateur) athletes are likely to be affected all through their careers by various old and new injuries, pains or aches due to training etc”.
39. In the present case, the sick leave was granted upon request by the plaintiff retrospectively to justify her absence from work after the Accident. There is no expert medical evidence on the reasonableness of sick leave granted. There is no documentary evidence to show that the plaintiff has suffered full pre-trial loss of earnings as a result of the Accident during the sick leave period as alleged. The documentary evidence provided by the plaintiff showed that she had an unstable pattern of earnings.
40. Nonetheless, I accept that the injury sustained by the plaintiff in the Accident did cause her discomfort which affected her work ability, efficiency and income. Overall, considering the evidence before me, I am prepared to allow partial loss of earnings in the sum of $30,000 during the sick leave period (equivalent to about one-third of the sick leave granted at $74,212.67/month). Accordingly, I allow $30,000 under this head.
Loss of earning capacity
41. In the RSOD, the plaintiff claimed loss of earning capacity in the sum of $111,900 on the basis that she is likely to suffer hardship in the open labour market, as evidenced by a significant drop in her earnings after the Accident, to which her residual disability is likely to have contributed. The plaintiff claimed 1.5 months of her pre-accident income ($74,600 x 1.5).
42. As mentioned hereinabove, the figure of $74,212.67 was adopted by Mr Keung’s in his written opening submissions as the plaintiff’s average monthly earnings for the past 12 months preceding the Accident. This gives a new total of $111,319.01 ($74,212.67/month x 1.5 months) under this head.
43. The guiding principle for making an award for loss of earning capacity was stated in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141:
“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”
44. There is no evidence that the plaintiff is under any real risk of losing her current employment or will suffer a handicap in the labour market by reason of her residual disability. She testified that she left Convoy because of its financial situation and that wages were not paid. There is no evidence on why it took her about 6 months to secure her current employment with Wrise Financial Service Limited (“Wrise”). The plaintiff confirmed that the nature of her employment; remuneration and benefits package with Wrise is similar to that with Convoy. There is no expert evidence on the permanent impairment to the whole person of the plaintiff. Looking at the picture overall, I do not consider that the plaintiff should be entitled to any damages for loss of earning capacity resulting from the Accident in this case.
Loss of society
45. The plaintiff claimed a total sum of $60,000 for loss of society based onsection 20C(1)(a) and (b) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23). In gist, she claimed that by reason of the back injury caused by the Accident, she and her 2 daughters had been deprived of society of spending time during the first 2 months after the Accident; and she and her husband had been deprived of enjoying a normal intimate relationship.
46. Mr Keung relied on the following authorities:-
(a) Law Ping Leung v Ng Sze Pong [2009] 5 HKLRD 426; and
(b) Leung Lee Jasmine v Go Fresh (Hong Kong) Company Limited , DCPI 2425/2014; 28 October 2016.
47. I accept the plaintiff’s evidence that by reason of the Accident, her husband has been deprived of enjoying a normal intimate relationship with his wife; and that her daughters had been deprived of opportunities to do ordinary things like reading bedtime stories and doing homework with their mother. I consider the amount claimed under this head to be reasonable and I would allow it in full.
Special damages
48. The plaintiff claimed $23,220 for special damages as particularized below:-
(a) Medical expenses $17,220
(b) Travelling expenses (about) $2,000
(c) Nourishing/tonic food (about) $4,000
49. In respect of medical expenses of $17,220 under this head, only $11,120 is supported by receipts and I would only award this lower amount of $11,120.
50. The plaintiff claimed that the travelling expenses of $2,000 are mostly for treatment purpose. Only $823.30 is supported by receipts. Having considered the number of visits to hospitals and clinics for treatments and the availability of public transports, I consider $1,500 to be reasonable and would award $1,500 for travelling expenses under this head.
51. The plaintiff claimed $4,000 for nourishing/ tonic food. As mentioned above, about $3,000 was for the food/soup with materia medica that her mother prepared and about $1,000 odd was for the supplement Vita Joy. No receipts were provided nor was there evidence on the advisability or suitability of tonic food. Nonetheless, the principles are well-established (see Yu Ki v Chin Kit Lam [1981] HKLR 419 whereby the court had awarded nominal sum for tonic food where there was no evidence as to the advisability and suitability of tonic food). I consider the amount claimed by the plaintiff under this head to be reasonable and I would allow it in full.
Future medical expenses
52. The plaintiff claimed $8,000 for future medical expenses for bone-setting therapies and supplements.
53. Although Dr Chan has stated in his report that residual pain is not uncommon, there is no expert evidence on the need of future medical treatment and the plaintiff has confirmed in her evidence in court that she no longer takes supplement. In the circumstances, I would only allow a nominal sum of $2,500 under this head to cover the plaintiff’s occasional need of medical attention to her back.
Conclusion
54. In conclusion, based on the aforesaid, I have assessed the damages in this case as follows:-
(A) PSLA
$250,000
(B) Pre-trial loss of earnings
$30,000
(C) Loss of earning capacity
nil
(D) Loss of society
$60,000
(E) Special damages
$16,620
(F) Future medical expenses
$2,500
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55. On top of the above amount, the usual interest will be awarded at 2% per annum for general damages from date of the writ to the date of assessment and half judgment rate for special damages from date of the Accident to date of assessment, thereafter at judgment rate.
56. I would also make an order nisi for costs that the 1st and 2nd defendants shall pay the plaintiff’s costs of this assessment, such costs to be taxed if not agreed with certificate for counsel. Such order will become absolute in the absence of any application to vary the same within 14 days from the date of this assessment.
57. Lastly, I thank Mr Keung for his assistance provided to the court.
Mr Stephen Keung, instructed by Boase, Cohen & Collins, for the plaintiff
The 1st and 2nd defendants were not represented and did not appear