IP CHEE WAI JEFFREY v. HO WAI PAN

DCPI 4013/2020

[2024] HKDC 102

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 4013 OF 2020

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J U D G M E N T

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1.  This is an assessment of damages in a personal injury case in which the Plaintiff sustained injuries to his knees and right arm, in a traffic accident on 11 December 2017.  It was the Plaintiff’s contention that the Accident was caused by the negligence of the Defendant.  Interlocutory judgment was entered against the Defendant on 15 July 2021 leaving damages to be assessed.

2.  The Notice of Appointment for Assessment of Damages dated 26 September 2023 was served on the Defendant on 6 October 2023 by post at the address of the Defendant as stated in the Writ of Summons.  Affirmation of service was filed on 13 October 2023.

3.  The Defendant did not attend the assessment hearing.  I was satisfied that notice of the assessment hearing had been duly given to the Defendant.  It was the Defendant’s choice not to attend the assessment hearing.  I proceeded with the Assessment of Damages in this case in the absence of the Defendant.

4.  The Plaintiff instituted the present proceedings claiming against the Defendant for (i)  pain, suffering and loss and amenities (PSLA), (ii)  special damages and (iii)  interest.

The Plaintiff’s case

5.  The Plaintiff himself was the only person who testified at the hearing. He adopted as evidence in chief his witness statement and supplemental witness statement filed herein.[1]

6.  The Plaintiff was born in 1980 and was aged 37 at the time of the Accident.  He was born and grew up in Hong Kong and received education up to university level in the University of Leeds.  After graduating, he came back to Hong Kong in or about 2003 and worked as a Financial Planning Manager in a bank. His main duties were to promote different products, including but not limited to insurance services, to different banks.

7.  On 11 December 2017 at or around 9:08 am, the Plaintiff was walking towards Mong Kwok MTR station from his home on Victory Avenue, Mong Kok.  After around 1 minute, he arrived at the east side of the footpath of Victory Avenue towards the junction of Argyle Street and was hit by the Defendant’s bicycle very strongly.  The Plaintiff lost balance and fell forward facing down to the ground (“the Accident”).

8.  Right after the Accident, the Plaintiff was admitted to the Department of Accident and Emergency of Kwong Wah Hospital (“the Hospital”).  On admission, he was diagnosed to be suffering from right elbow fracture and knees abrasion.  On 18 December 2017, X-ray conducted showed that the Plaintiff suffered from right distal radial ulnar joint (“DRUJ”)  injuries and right radial neck fracture in his right arm.  He was prescribed painkiller and used a cast to support and protect his right arm and was discharged on the same day.  The Plaintiff also attended General Out-patient Clinic (GOPC)  for dressing of the abrasion wounds.

9.  Sick leave was granted for the period of 11 December 2017 to 17 December 2017 (“1^st Sick Leave Period”).

10.  During the 1^st Sick Leave Period, the Plaintiff found that there was no improvement in his pain.  He felt that the pain was getting more serious.  He then attended the Hospital again on 18 December 2021 for the scheduled check-up.  He was then referred to the Orthopaedics Department and received treatment from Dr Wong Hing Cheong (“Dr Wong”)  of the Department of Orthopaedics & Traumatology.  Upon Dr Wong’s examination and a Plain X-Ray Scan, Dr Wong diagnosed the Plaintiff with the Distal Radial Ulnar Joint injury (DRUJ).

11.  Dr Wong also recommended to the Plaintiff the use of Elbow Hinged Brace for his treatment and rehabilitation.

12.  According to the medical report by Dr Wong dated 4 August 2022, physical examination showed tenderness over right radial head region.  The range of motion of right elbow was from 10 degrees - 120 degrees.  Examination of right distal radioulnar joint showed increase in dorsal translation of distal ulna.

13.  Dr Wong referred the Plaintiff to the Occupational Department of the Hospital in which an Elbow Hinged Brace was tailor-made for him on 18 December 2017.

14.  A further sick leave was granted from 18 December 2017 to 27 December 2017 (“2^nd Sick Leave Period”).

15.  There were several further check-up appointments by the Department of Orthopaedics & Traumatology in or around January and February 2018.

16.  The Plaintiff complains that he is still suffering from the following problems:

(a)  On and off right elbow soreness which affects him even at rest, which worsens during weather change;

(b)  Weakness of right elbow and pain on exertion;

(c)  On and off right wrist pain which affects him during weather change;

(d)  Reduced lifting tolerance; and

(e)  Not being able to resume playing basketball and tennis due to limited range of motion and pain of right wrist.

Expert evidence

17.  On 18 November 2022, the Plaintiff was examined by Solo Expert Dr Tsoi Chi Wah, Danny (“Dr Tsoi”).  The assessment was done almost 5 years after the Accident.

18.  First of all, Dr Tsoi found that the superficial abrasion wounds healed up completely after wound dressing by nurse.  Full recovery was achieved.

19.  The fracture radial head of right elbow was treated by plaster slab followed by hinged brace protection.  Fracture healing was uneventful but the Plaintiff still had residual right elbow pain, stiffness and weakness.

20.  The DRUJ of right wrist was treated conservatively.  The Plaintiff still had residual pain, weakness and stiffness over his right wrist.

21.  During the examination, the Plaintiff still complained of residual right elbow and wrist pain, stiffness and weakness.  Upon physical examination, Dr Tsoi opined that the Plaintiff’s right elbow and wrist were in stable condition. There was no ligament laxity and no sign of suggestive of residual active inflammation.

22.  There was also no muscle wasting and the strength of both joints were normal in all directions.  However, there was loss of final 5 degrees of elbow flexion as well as 10 degrees in flexion/extension of right wrist and 5 degrees loss in radial deviation.  The main problem now are mild elbow and wrist stiffness with discomfort on exertion.

23.  He finally opined no further treatment is required.

24.  The injured right elbow and wrist each incurs 1% whole person impairment. The Accident has rendered the Plaintiff to suffer from 2% whole person impairment.

Factual findings

25.  The Plaintiff’s testimony is not subject to any challenge as the Defendant has not been present in these proceedings.  The Plaintiff gave testimony in a straightforward and direct manner and I accept his evidence.  Separately, I also accept Dr Tsoi’s evidence in his Expert Medical Report.  I therefore accept, but shall not repeat, their evidence as summarised above which form part of my factual findings.

26.  Based on these factual findings, I now turn to each head of claim.

PSLA

27.  The Plaintiff claimed a sum of $250,000[2] for damages for PSLA.  Ms Joyce M Y Chan, Counsel for the Plaintiff, referred me to the following cases on PSLA.

28.  In Tsui Kwan Fai v Goldfield N & W Construction Company Ltd, DCPI 97/2006, (unreported, 24 August 2007), the plaintiff was diagnosed to have closed fracture of the head of the right radius and soft tissue injury to the right wrist and right shoulder.  PSLA was assessed at $300,000.

29.  In Shrestha Debika v PizzaExpress (Hong Kong)  Limited, DCPI 1661/2021 (unreported, 3 November 2023), the plaintiff suffered fracture of lower end of radius at left wrist.  The court awarded a sum of $200,000 for PSLA.

30.  In Rai Chandra Kala v La Creperie 8 Ltd, [2023] 2 HKLRD 1477, the plaintiff slipped and fell and had acute traumatic closed fracture of left wrist.  He was awarded HK$200,000 for PSLA.

31.  In Yeung Cheung Chun v Wing Shing Caisson & Foundation Limited & Or, HCPI 808/2012 (unreported, 30 January 2015)  the plaintiff suffered a fracture of distal radius of left wrist but there was residual mild weakness in the left arm and slight muscle wasting in mild permanent adverse effect in his daily activities.  The plaintiff was awarded $200,000 for PSLA.

32.  In Chan Nga Yin v MTR Corp Ltd, DCPI 1675/2012 (unreported, 25 June 2014), the plaintiff slipped and fell inside a shopping mall and sustained a fracture of her left distal radius.  The plaintiff had pain on movement upon exertion and lifting heavy objects and limited range of movement of left wrist.  PSLA was assessed at $200,000.

33.  After due consideration of the authorities, and having considered, inter alia, the nature of the Plaintiff’s injuries, the treatment received, and the duration of his healing process, I am of the view that the injury suffered by the Plaintiff was a relatively mild example of its type.  The Plaintiff was discharged from hospital on the same day after a plaster case had been applied, and he was granted a total of 18 days sick leave.  An award of $200,000 is therefore appropriate.

Special damages

34.  The Plaintiff claimed the following special damages:

(a)	Medical expenses (including tonic food)	$35,000
(b)	Travelling expenses	$5,000
	Total:	$40,000

35.  The medical expenses were not entirely supported by receipts.[3] There are only 10 receipts for $600 each.  It comes to a total of $6,000.

36.  I accept that there were some other 10 medical visits in the Government hospitals and will award another $1,000 for those visits.

37.  There is however no receipt to support the claim of tonic food and there is no evidence as to the advisability of suitability of tonic food from any doctor or person with medical knowledge.  That said, I accept that the court may award a reasonable sum for tonic foods even if no documentary proof has been produced, see the case of Tang Yuet Yi, a minor by Tiu Kwai King v Leung Man Chow [2018] HKDC 985.  In considering the injuries suffered by the Plaintiff which is in my view relatively minor, I am of the view that a sum of $5,000 should be awarded for the tonic foods.

38.  In view of the number of the hospital visits, and the nature of the Plaintiff’s injuries, I also accept that the travelling expenses of $5,000 claimed by the Plaintiff is reasonable.

39.  In summary, the total amount of special damages should be: $6,000 + $1,000 + $2,000 + 5,000 = $14,000.

Summary

40.  The Plaintiff’s damages should be assessed as follows:

(a)	PSLA	$200,000
(b)	Special damages	$17,000
	Total:	$217,000

Interest and costs

41.  Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ.  Interest on special damages will be awarded at half judgment rate from the date of the incident.  The Plaintiff’s solicitors are directed to calculate the amount of interest to be included in the Judgment.

42.  Costs to follow the event.  I grant a costs order nisi against the Defendant in favour of the Plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages, to be taxed if not agreed.  The above order nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.

43.  Lastly, I thank Ms Chan for her assistance rendered to this Court.