CHU CHUNG WAH v. NG TUNG PAK AND ANOTHER

HCPI 547/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 547 OF 2003

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ASSESSMENT OF DAMAGES

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1. This is the hearing of the assessment of damages under RHC Order 37, interlocutory judgment on liability having been entered for the Plaintiff on 23^rd October, 2003.  The Plaintiff gave evidence at the hearing, and was the only witness to do so.

Background

2. The Plaintiff was a passenger on a public light bus driven by the 1st Defendant on 15th February, 2002.  The 2nd Defendant is the registered owner of the bus.  The bus was involved in a road traffic accident, during the course of which the Plaintiff was injured.  The accident was accepted to be caused by the 1st Defendant driver, and he was convicted of dangerous driving on 31^st October, 2002 at Tsuen Wan Magistracy.

3. The Plaintiff did not experience any problems immediately after the accident, and did not go to hospital at that time, even though he was offered an ambulance.  He did not begin to experience pain in his lower back until one or two days later.  Since this pain did not subside, he attended before Dr. Lam Kwong Chin, whom he had visited previously about his back, some 10 days after the accident.  He was treated conservatively, and given some 20 sessions of physiotherapy.  He also received physiotherapy from the United Christian Hospital.  This lasted for about 3 to 4 months, and he was given sick leave up to April 2003.

4. The Plaintiff continues to complain of lower back pain, and this forms the substance of his claim.  At the time of the accident, the Plaintiff was 45, and at the hearing 47.  He was born on 5^th October 1956.  He has two children who are students.  His wife is partially disabled, and therefore unable to help him in his work. 

5. The main issues before me were that whilst it is accepted by the Defendants that the accident caused some injury to the Plaintiff, they contend that the Plaintiff’s current back problems are primarily a result of a pre-existing injury.  The Defendants contest the Plaintiff's loss of earnings calculation, and contest the extent to which the Plaintiff is now unable to continue his pre-accident occupation.

Injuries and treatment

6. In addition to the history and treatment described above, a scan of the Plaintiff's spine was carried out on 12th March, 2002 at Baptist Hospital, a month after the accident, which revealed a posterior disc extrusion at L5/S1 level, which caused compression of the left S1 nerve root.  This was the cause of the Plaintiff's back pain.  There was also a general bulging to the disc at L4/5 level.  The Plaintiff also suffered left leg pain, but this subsided by July 2002. 

7. The Plaintiff was examined by Dr. Danny Tsoi on 21st July, 2003 in connection with these proceedings, some 17 months after the accident.  Dr. Tsoi confirmed that the Plaintiff's symptoms were compatible with a prolapsed inter-vertebral disc at the L5/S1 level.  However, Dr. Tsoi noted degenerative changes at the L5/S1 level.  He found pre-existing disc degeneration, which was probably asymptomatic prior to the accident.  He concluded that the accident caused acute herniation of the weakened pre-existing degenerative disc, which should be considered the cause of the subsequent back and leg pain.  No further treatment was by then necessary, but the Plaintiff was advised to be cautious if he were frequently engaged in heavy lifting – he was advised not to lift too heavy objects – say over 50lb.  Otherwise, he was fit to return to his pre-accident work with reduced capacity.  Dr. Tsoi put the Plaintiff's degree of permanent impairment at 5% of the whole person. 

8. The Plaintiff was also examined by Dr. Brian Chan, the Defendants' medical expert, on 8^th September, 2003.  Dr. Chan did not seek to challenge Dr. Tsoi's view that the pre-existing prolapsed disc at L5/S1 was asymptomatic.  He said in his report that the accident might have just flared up a pre-existing condition.  Dr. Chan believed the Plaintiff could return to his pre-accident occupation.  He assessed the Plaintiff's accident related impairment at 1%.   The Plaintiff completed a pain analysis questionnaire for Dr. Chan, which was consistent with his evidence in Court.  This describes back pain when lifting and standing.  The report of Dr. Chan is deficient in that this is not discussed:  Dr. Chan does not say the Plaintiff can lift and stand as normal, nor does he accept any limitation.  The report is unclear, other than accepting 1% loss of earning capacity because of residual back pain.  It is not clear to me whether the lifting and standing involved in the Plaintiff’s job was understood or considered by Dr. Chan, and if so what he thought of that.

9. Both doctors considered the Plaintiff’s complaint genuine.  The medical reports were admitted at the hearing, and neither the Plaintiff's nor the Defendants' doctors were called.  A report from United Christian Hospital of 5^th August, 2002 also concluded that treatment could then be stopped, he should have regular home exercise, try to resume light duties after his next follow up, and that some degree of permanent disability could not be ruled out.  

10. The Defendants draw attention to the fact that it took the Plaintiff some 10 days to consult Dr. Lam initially after the accident.  Nevertheless, I accept the Plaintiff's evidence that the pain developed over a day or two, and he wanted to see whether the pain would subside or was something more serious before attending at hospital.  I accept his evidence that he did not feel pain immediately at the time of the accident, and this is why he only sought treatment later.

11. The Defendants point out that the Plaintiff sustained no crack to his spine, needed no operation and his treatment was only conservative.  He was not hospitalised, save for 12th March, 2002 when he had an MRI scan.  Treatment by Dr. Lam was for a period of about 2 months only from 25th February to 30th April, 2002, and thereafter at the United Christian Hospital for 3 to 4 months.  I take note of all these matters in my assessment.

12. Causation, importantly, has not been contested in this matter, and there is therefore no dispute that to an extent the Plaintiff's current back problems are caused by the accident.  What is at issue and relevant to quantum is the extent of the current problems, the extent to which they were caused by the accident, rather than a pre-existing condition, and the effect they have on the Plaintiff’s earnings and earning capacity.

Pre-Existing Condition

13. Having accepted some injury and causation, the Defendants point to the fact that the Plaintiff was suffering a pre-existing spinal problem.  The nature of the pre-existing back problem was unclear from the written evidence, but this is referred to in Dr. Chan’s report as on and off back pain from 1993 to 1999.  Dr. Tsoi refers to a history of back pain in 1993, with complete recovery.  The Plaintiff explained further at the hearing that he had had on and off back pain starting in 1993.  He had visited Dr. Lam 3 or 4 times since 1993 and received some ointment for his back.  He had not been hospitalized, or had any x-ray, operation or treatment, or received other medication.  This had not affected his work. 

14. Mr. Chan for the Defendants argued that there cannot be any dispute that the Plaintiff's back problem was caused, or substantially contributed to, by his pre-existing spinal problem.  I do not think that the Defendants can put the case that high.  Nevertheless, the Plaintiff accepts he was suffering from some back problems before the accident.  Dr. Tsoi on behalf of the Plaintiff found that there was a pre-existing disc degeneration. 

15. Mr. Chan drew attention to the Court of Appeal case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, as authority that even if a pre-existing spinal condition was asymptomatic before the accident, the award for PSLA should be reduced.  In that case, the Plaintiff was a carpenter aged 45 who suffered injury to his back at work.  He had a pre-existing condition, which had been symptomless before the accident, but was “quite severe” and would in any event probably have led him to give up his pre-accident work by the age of 55.  The immediate cause of the injury was however the accident, but after treatment he was judged fit to return to light duties.  On account of the pre-existing problems, the trial judge made a deduction of 45% to PSLA and loss of earnings, and reduced the future loss of earnings by 75%.  The 45% assessment was upheld by the Court of Appeal, but they held in relation to future loss of earnings that a reduced multiplier should be the methodology.  Taking 7 as the normal figure, for a man aged 53/54 (by the time of trial) this was reduced to 5. 

16. The Plaintiff accepts, at least in relation to loss of future earnings, that there should be some reduction of multiplier in the light of the Court of Appeal's decision in Chan Kam Hoi case.  I also find that this is a case of a pre-existing condition, and not merely a case of a thin skull or other weakness of the Plaintiff, which leads to more serious injury than normal, and whose consequences the Defendants must accept.  Therefore, some discount should be made to the damages which would otherwise be awarded. 

17. Nevertheless, whilst the principles of Chan Kam Hoi are accepted, there is an important distinction of fact, since in this case it is neither suggested that the pre-existing condition was severe, nor was there clear evidence that it would have led the Plaintiff to give up work in any event at some future time.  That is relevant to how much discount to give.  The only evidence on this point was a comment by Dr. Chan, in response to Defendants’ solicitors’ questions, that the pre-existing condition ‘could have flared up in the next 1 or 2 years’.  I regard this as something of a throw away line, which says nothing about the real prospects, or what effect this might have had on the Plaintiff’s working life.  Nevertheless, the Plaintiff accepts a reduced multiplier, and did not controvert Dr. Chan’s comment.  It seems to me there is some risk that the pre-existing condition may have had some uncertain future impact on the Plaintiff’s working life.  This falls far short of the prognosis in Chan Kam Hoi.

Damages for pain suffering and loss of amenities

18. I accept the evidence before me that the Plaintiff was still suffering back pain.  He did not appear to me in any way to be a malingerer, or to have exaggerated his situation.  Subject to a number of specific points to which I will refer below, I accepted his evidence as an honest and fair witness.  Treatment over some months was needed, and I accept the Plaintiff’s own evidence, supported to an extent by both medical experts, that he is now unable to work as efficiently as he could prior to the accident.

19. Mr. Cheung drew attention to a number of cases, from which he concluded that an award of damages of not less than HK$250,000 for PSLA was appropriate.

19.1     Chair Sai Sui v International Country Club Ltd & Anr, HCPI 522/1998, 26th October, 1999:  The Plaintiff was injured in a riding accident affecting his lumbar vertebrae.  He was hospitalised for five days, put in a lumbar brace and on crutches.  Though left with some residual pain he was able to return to normal activities.  Accordingly he made a good recovery.  PSLA was assessed at HK$150,000.  The Defendants also rely on this authority as an instance of a low award for a more serious injury than the present case.

19.2     So Chung Kwong v Ho Kuen (t/a Brilliant Design and Decoration Co) & Anr, HCPI 550/1995, 27th March, 2000: A carpenter was injured whilst carrying out heaving lifting at work, and was hospitalized for 10 days.  Back pain persisted and he was no longer able to carry heavy loads or return to his full employment.  This level of incapacity was assessed permanent.  PSLA at HK$320,000.

19.3     Lung Yui Man v Yee Hing Kee Plumbing Works Co Ltd & Anr, HCPI 923/1996, 2nd February, 2000:  The Plaintiff, fell and hurt his back during the course of his work.  No hospitalisation was required, but he complained about back pain.  The doctors believed that there was element of exaggeration.  The court awarded HK$192,000 PSLA.  Mr. Cheung accepted that this was probably a bit high, and I agree. 

19.4     Woo Wai Kuen v Li Siu-keung t/a Alex’s kitchen, DCPI 309/2001, 19th June, 2002:  The Plaintiff injured her back when she slipped and fell at work.  She continued to work, and did not go to the doctor until she was off duty.  She was given pain killers and told to take rest.  She returned to hospital later, at which time an x-ray revealed a small fracture of the sacrum.  This was a minor injury, although she was advised not to perform heavy work, and experiences residual pain, especially in cold weather:  PSLA HK$150,000. 

19.5     Lee Yuk Lan v Royaltelle International Ltd, t/a The Royal Garden, HCPI 187/1995, 5th August, 1999:  The Plaintiff cashier slipped at work and suffered a sprained back.  She was found to have some back pain but no fracture.  She was found to have a pre-existing back condition, which made it likely her recovery would be slower than normal.  PSLA HK$150,000.  This case may also have involved an element of exaggeration.  The Defendants also rely on this authority.

19.6     Yeung Sze v Win Art Design & Decoration Company Ltd,  HCPI 6/2000, 27th June, 2001: the Plaintiff fell during the course of his plastering work, felt pain and sought medical treatment the next day.  He received physiotherapy and was discharged after three days.  When examined later he was found to have no medical problems apart from mild limitation in spinal movement.  His condition deteriorated, and he was given sick leave for 15 months on account of lower back pain, although they were no identifiable injuries.  PSLA HK$200,000. 

20. The Defendants draw attention in addition to Yip Piu v Chung Kam Fei Catherine & Anr, HCPI 1168/1999, 27^th November, 2000:  The Plaintiff was injured in a road accident, and suffered minor head injuries and back pain, probably caused by a disc herniation.  He was hospitalized for 4 days, and given some 18 months sick leave. Some exaggeration of on-going back pain was found.  PSLA HK$100,000.  The Defendants contend that there are only minor residual back problems in this case, so that the injuries and disabilities fall outside the category of "serious injury" as defined in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657.

21. Having considered the facts and the authorities, I would have accepted an assessment of PSLA in this case at HK$200,000, but some reduction should be made for the admitted pre-existing condition.  The matter is not capable of precise definition, or calculation, but a reduction of 20% or HK$40,000 seems appropriate.  I therefore award HK$160,000 for pain suffering and loss of amenities.

Pre-trial Loss of Earnings

22. The Plaintiff claims that, prior to the accident, he worked full time as a hawker selling crabs and earned in the region of HK$9,000 per month.  He claims that as a result of the accident, he was unable to continue his previous employment immediately, but was able to resume work in April 2003, 13 1/2 months after the accident, on a reduced capacity basis.  In effect, he resumed his pre-accident employment, but was unable to work such long hours as before the accident, due to back pain when standing for long periods and when lifting.  He also claimed he worked shorter hours because of the need to exercise, as advised by his doctors, but in cross examination he admitted he only swam for about an hour once a week, so I discount this factor.  He claims his working hours shortened from 8.00am to 7.00 pm pre-accident, to 11.00am to 7.00pm post-accident.   

23. In addition, the Plaintiff claims that whilst before the accident he used to go to the market by bicycle to buy crabs for resale himself, this is heavy lifting and carrying which he is now unable to perform, and accordingly he must employ an agent to purchase the crabs for him and deliver them to his stall.  The agent charges a fee calculated by reference to the number of crabs bought and transported.  Even though the Plaintiff is a seller, and the crabs were now delivered to him, he told the Court how he still needed to move the baskets around and stand at work.  He told the court that with the help of the transport agent, he could manage, but not for such a long day as before.  This is consistent with Dr. Tsoi’s report.  I accept the Plaintiff’s evidence as to his reduced working capacity.  The Plaintiff claimed that these matters taken together reduce his monthly income to HK$5,500.

24. Some time was spent in argument and in cross-examination before me challenging the Plaintiff's evidence of his earnings.  The Defendants drew attention to the fact that the Plaintiff's case is a simple allegation by the Plaintiff himself, unsupported by any records or documentary evidence.  Nevertheless, I accept that this is a modest and low income business.  The Plaintiff operates on a "hand to mouth" basis:  he is not in the income tax bracket, and has had no need to keep any records or accounts.  The purchase of crabs, payment of agent fee, and resale of them, is a cash based business.  The Plaintiff explained that he merely takes his daily income, and gives it to his wife.  She then provides for the family, and gives back to him a small living allowance for his lunch and other expenses.  The Plaintiff's evidence that this was how his business operated was compelling, and I accept it.  I do not accept that a lack of pre-accident records is in this case suspicious. 

25. There is however one matter which was drawn to my attention:  There was reference to some form of receipt or note from the agent who now bought and delivered the crabs to the Plaintiff, but none was produced, despite this being the subject of requests for discovery.  After the accident, the Plaintiff was advised by solicitors, who could have advised him to make records of his income and expenses to substantiate his claim, and to keep and disclose such papers as he did have.  This should have been done.  His wife, who on the Plaintiff’s evidence, balanced the family’s budget could have given evidence.  There has been no attempt to back up the Plaintiff’s claim save for his own oral evidence.  The Plaintiff bears the burden of proof.

26. Mr. Chan drew attention in cross-examination to the inconsistencies of the Plaintiff's own case, and the fact that his calculations of the sale and resale price of crabs and costs simply do not add up to the reduced income claimed.  I agree that there are errors and inconsistencies in this evidence, and the information provided in correspondence is not clear, and was not consistent with the Plaintiff’s evidence.  Nevertheless, it seems to me this is largely a function of the informal way in which the Plaintiff operates his income and expenses, and the fact that his income will not be the same every day.  I have already found the Plaintiff a reliable witness, but plainly without the aid of any records it is difficult for him to be thorough and precise as to his pre and post-accident earnings.  Where there is doubt or alternative figures have emerged, I should award the Plaintiff the lesser amount.

27. I accept that the Plaintiff's pre-accident earnings were HK$9,000 per month.  During cross examination, the Plaintiff said his earnings were between $5,500 and $6,000 per month now.  He had also admitted earlier by letter from his solicitors of 14^th October, 2003 that his current earnings were $6,000 per month.  In view of this, and the lack of evidence and inconsistencies, I find the loss of income $3,000 per month – i.e. from $9,000 to $6,000.  I accept that shorter working hours and cost of a buying agent are what in fact reduces the income to $6,000.  However, is the Plaintiff is forced to earn at this reduced rate by reason of the accident?

28. Mr. Chan points to the lack of supporting evidence for the calculations and the delay in seeking medical attention.  I have dealt with these matters already.  He next points to the medical evidence, particularly Dr. Chan’s view that the Plaintiff could return to work, and Dr. Tsoi’s view that he could return to work with reduced capacity and efficiency, and should rest and stretch every 2-3 hours.  I have already considered these reports above, and noted some gap in Dr. Chan’s report.  Mr. Chan draws the conclusion, bearing in mind the pre-existing back problems, that no loss of earnings should be allowed.  Taking the Plaintiff’s witness statement and oral evidence, and the medical evidence as a whole, I am satisfied that the Plaintiff is now unable to work as hard as he did before the accident, by reason of back problems largely, although not entirely, caused by the accident.  

29. Consistent with the award on PSLA, I should make some reduction in the loss of earnings to take account of the pre-existing condition.  This is not capable of precise calculation, but I consider 20% or HK$ 600 appropriate.  The Plaintiff is therefore entitled to a loss of earnings claim in the sum of $2,400 per month ($9,000 – $6,000 - $600).

30. Turning to the period of sick leave, some 13.5 months was granted, and is supported by Dr. Tsoi.  This does seem to me excessive.  By 5th August, 2002 he was advised by the United Christian Hospital to resume light duties, although this does may not mean his full pre-accident duties.  In his evidence he explained how he might have resumed work earlier, but could not get a stall.  Having had to stop work after the accident, he had lost his selling space.  It was not clear how hard it was to find a suitable new location for his stall.  He accepted in cross examination that he had planned to resume crab selling in about July 2002, but on a light duties basis.  By then his leg pain had subsided.  He had tried to find other work.  The story here was unclear on these matters, and I am unable to determine exactly what the Plaintiff tried to do, and how he failed or succeeded.  The fact that the family savings and benefits ran out seemed to be a factor in him resuming work.  I do believe that the Plaintiff could have recommenced work at some level before April 2003.  Mr. Chan and Dr. Chan contend for no more than 6 months sick leave.  I believe 9 is appropriate.

31. Pre-trial loss of earnings are therefore $121,800:  9 x $9,000 = $81,000 plus 17 x $2,400 = $40,800

Loss of Future Earnings

32. The Plaintiff claims a multiplier of 8, accepting a reduction for the pre-existing back problem.  The Defendant contends for a multiplier of 2, if any award is to be made.  This is on the strength of Chan Kam Hoi, which is a case concerning an altogether more serious pre-existing injury, not really comparable on the facts.  In the Answer to the Revised Statement of Damages, the Defendants had accepted, at least at that time, a multiplier of 8. 

33. However, a number of examples of multiplier were cited to me, which suggested a multiplier of about 8 - 9 would be normal, some cases going as low as 4.  It is not clear that the Plaintiff’s condition would have in fact reduced his working life, without the accident, but as noted above there is at least a risk of something happening at some stage.  The Plaintiff accepted such a reduction to the multiplier.  Given the Plaintiff’s current age, and taking all these matters into account. I believe 7 is the appropriate multiplier.

34. Loss of future earnings is therefore $201,600 ($2,400 x 12 x 7).

Loss of Earning Capacity

35. The Plaintiff claims that he may be at a disadvantage in the labour market, should he lose his employment in the future.  He claims $50,000.  Mr. Cheung cites Chan Wai Tong v Li Ping Sun [1985] HKLR 176; Wong See Mo v Lam Nam Fui, [1991] 1 HKLR 361; and Ip Yiu Fai v Chan Che Kwong, t/a Hong Kong riding Union, unreported PI 445/1998.  Mr. Chan cites Moeliker v A Reyrolle & Co. Ltd,  [1977] 1 WLR 132; and Lo Kwok Fai v Ngan Cheung Wah, HCPI 757/2001, 25th November, 2002.

36. It seems to me that, as a self-employed hawker, there is not the required real risk of the plaintiff losing his work in fact, nor that his injuries put him at a real disadvantage in the labour market generally, for which the Court should make allowance.  I make no award for loss of earning capacity.

Special Damages, Interest

37. Again the Plaintiff’s claims in this category suffered from lack of supporting receipts and evidence.   There was no evidence of attempts to obtain receipts or invoices from hospitals, in particular, for the medical expenses.  The evidence was not augmented at the hearing. 

38. Accordingly, I allow $836.00 for hospital fees, $6,700 for Dr. Lam’s fees, being in both cases the amounts supported by receipts, and accepted by the Defendants.  The Defendants have been consistent in challenging the full amounts claimed.  Travel expenses of $500 and tonic food of $500 were agreed. 

39. There is no receipt for the MRI scan, but the Defendants accept this amount at $6,000.

40. In summary:

PSLA	:	HK$ 160,000
Pre-trial loss of earnings	:	HK$ 121,800
Future loss of earnings	:	HK$ 201,600
Special damages	:	HK$ 14,536
Total	:	HK$ 497,936

41. In addition, the basis of interest claimed was agreed.

42. I make a costs order nisi that, unless any party applies within 14 days of the handing down of judgment to set aside or vary the order, the Plaintiff be awarded the costs of the assessment, and of the action, to be taxed if not agreed.  To the extent still relevant, the Plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.