LAW KA YEE v. QUALITY DRIVER TRAINING CENTRE LTD

DCPI 3929/2021

[2024] HKDC 1288

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3929 OF 2021

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  Interlocutory judgment having been entered on 14 June 2022, this is the hearing for assessment of the plaintiff’s damages.

2.  The defendant operated a driving school at Hoi Yuen Road, Kwun Tong (“the Site”) and the plaintiff was a learner at the defendant’s driving school. The defendant is represented by the defendant’s director, Mr Law Sing Hong.

3.  Damages are claimed under the following heads:-

(a)  Pain, suffering and loss of amenities (“PSLA”);

(b)  Pre-trial loss of earnings;

(c)  Loss of earning capacity; and

(d)  Special damages.

4.  The plaintiff was the only person who testified at the hearing. She adopted as evidence in chief her witness statement filed herein on 18 October 2023.

BACKGROUND

The accident

5.  On 17 January 2019, the plaintiff was enrolled at the defendant’s driving school as a motorcycle learner. The plaintiff was provided with a motorcycle for practicing but not proper personal protective equipment. Whilst the plaintiff was driving a motorcycle at the Site, due to lack of skill and experience, the plaintiff could not handle a turn and she lost control of the motorcycle and bumped into some tires. As a result, the plaintiff fell from the motorcycle, and thereby sustained serious personal injuries (“the Accident”).

Injuries and treatment

6.  The plaintiff attended the Accident and Emergency Department (“A&E”) of United Christian Hospital (“UCH”) for treatment on 17 January 2019 immediately after the Accident.

7.  Physical examination revealed swelling and tenderness over right knee with decreased range of movement. There was bruising on the left leg. X-ray of right knee showed fracture right tibial plateau. She was admitted to the orthopaedic ward of UCH for further management. Computerized Tomography (“CT”) scan on the right knee confirmed comminuted fracture over the right lateral tibial plateau with displacement of lateral fragment. Open reduction internal fixation over the right tibial plateau was performed on 23 January 2019. The plaintiff was hospitalized for 13 days and was discharged on 31 January 2019.

8.  The plaintiff attended the Department of Orthopaedics & Traumatology (“O&T”) as outpatient for follow up treatment. She was referred for and received physiotherapy treatment from Physiotherapy Department (“PD”) of the Prince of Wales Hospital (“PWH”). Initial assessment done on 4 February 2019 showed swelling and warmth over her right knee and the range of movement was limited with pain. The muscle power of her leg was decreased. After 10 months of treatment by PD at PWH, the plaintiff reported subjective improvement of 70%, with full range of movement of the plaintiff’s right knee. The treatment was stopped on 4 December 2019 and home exercise program was prescribed. She was discharged from treatment by the O&T on 7 January 2020.

9.  The plaintiff also sought physiotherapy treatment from a private physiotherapy treatment centre by the name of “I Physio Exercise & Manual Therapy Centre” (“I Physio”) from 8 August 2019 to 1 March 2022 for a total of 84 sessions.

10.  To summarize, the plaintiff attended multiple medical appointments, including:-

(a)  A&E treatment on 17 January 2019;

(b)  Orthopaedic and traumatology out-patient treatments on 18 January 2019, 23 January 2019, 20 February 2019, 13 March 2019, 16 April 2019, 28 May 2019 17 September 2019 and 7 January 2020;

(c)  Physiotherapy treatment at PD of PWH from 4 February 2019 to 4 December 2019; and

(d)  Physiotherapy treatment at I Physio from 8 August 2019 to 1 March 2022 for a total of 84 sessions.

Sick leave

11.  As a result of the Accident, the plaintiff was granted sick leave for a total of 8 months from 18 January 2019 to 17 September 2019. The period of sick leave is not disputed.

Present complaints of the plaintiff

12.  The plaintiff claims to be suffering from various impairments and disabilities as a result of the Accident. They include:-

(a)  Intermittent pain and weakness of the right leg at the knee;

(b)  Aggravated pain in cold weathers, bad weathers and change of weather;

(c)  Aggravated pain with prolonged standing, prolonged walking, prolonged immobility, squatting, walking a flight of stairs or higher steps, attempting floor exercises during yoga and pivoting on right leg; and

(d)  Inability to run due to pain.

Joint medical report

13.  On 23 February 2023, the plaintiff was jointly examined by orthopaedic experts Dr Law Yee Cheong Wally (“Dr Law”) and Dr Lung Ting Kwan Peter (“Dr Lung”). The experts jointly prepared a medical report dated 1 April 2023 (“JMR”).

14.  Upon physical examination by Dr Law and Dr Lung, it was found that the plaintiff:-

(a)  walks without aids in normal gait;

(b)  single leg stance on right legs shows mild instability;

(c)  heel walking and toe walking are normal, with mild instability on heel walking;

(d)  can only attain ¾ of a full squat due to pain on right knee;

(e)  the right knee has a scar of 11cm in length, curvilinear surgical scar on the lateral proximal tibia, compatible with previous surgery for the tibia;

(f)  tenderness along the surgical scar;

(g)  the metallic implant is palpable on the right lateral tibia; and

(h)  the right quadriceps muscle bulk is reduced comparing to the left.

15.  Radiological examination revealed the following:-

(a)  According to the X-ray report prepared by Dr Lai Chi Wing dated 23 February 2023, there are:-

i.  plate and screws on right upper tibia; and

ii.  irregularity on right tibial plateau, healed fracture.

(b)  According to the CT report dated 21 January 2019 prepared by the UCH, there are:-

i.  comminuted fracture right lateral tibial plateau, with depression and displacement; and

ii.  small avulsion fracture at lateral aspect of inferior pole of the patella.

16.  The experts agree on the following in the JMR:-

(a)  The diagnosis:-

i.  right tibia lateral plateau displaced fracture; and

ii.  right ankle soft tissue sprain injury;

(b)  The mechanism of injury as described by the plaintiff is compatible with the degree of injury and the diagnosis;

(c)  There is no record of pre-existing injury, illness or degenerative changes on the right knee/ankle;

(d)  The injuries to the right knee and ankle are likely solely related to the subject accident on 17 January 2019;

(e)  The treatment provided to the plaintiff was appropriate, sufficient and standard;

(f)  The plaintiff has reached maximal medical improvement. She does not require any further treatment;

(g)  The sick leave granted to the plaintiff was appropriate and necessary for treatment and rehabilitation from the subject injury; and

(h)  The injury in the right ankle suffered in the Accident had satisfactory recovered and there should be no impairment in the right ankle region.

17.  Dr Law opines that the current finding of the thigh girth indicates reduction in the muscle bulk of the musculature. The injury to the knee with fracture, surgery and the quadriceps wasting recorded in the treatment progress, persists until the current moment. The reduction in muscle bulk in quadriceps muscle was related to the painful inhibition in exertion.

18.  Dr Law further opines that the reduction in muscle bulk of the quadriceps muscle is likely the origin of the current complaints of poor tolerance in standing, walking and squatting, as reduction in bulk limits the tolerance in prolonged ambulation. The plaintiff is currently limited by the residual symptoms in the physical tolerance in ambulation. Given the lapse of time it is likely that the current disability will be permanent, and will restrict her in vocational performance and recreational activity.

19.  On the other hand, Dr Lung opines that muscle wasting is a common feature of knee injury and that permanent loss of muscle is not uncommon. However, with vigorous training, power in muscle can be regained and the plaintiff can resume competitive sports and long-distance running.

20.  In relation to the plaintiff’s ability to work, Dr Law opines that the plaintiff is limited in her work efficiency even though the plaintiff is able to continue with her work as a dental assistant. The plaintiff will need intermittent resting breaks after every 2 hours of ambulation work. Whereas Dr Lung opines that the plaintiff will not have significant difficulty to adapt to her right knee pain, and that she will be able to return to her pre-accident job without significant difficulty as the job of a dental surgery assistant which in Dr Lung’s opinion, requires minimal physical demand.

21.  Dr Law is of the view that the plaintiff suffers 5% permanent disability of the whole person and 5% loss of earning capacity. Dr Lung opines that the plaintiff’s whole person impairment and permanent loss of earning capacity resulting from the injury is at 2%.

22.  The JMR has been admitted as evidence without calling the experts. The parties did not seek to cross-examine the orthopaedic experts.

PSLA

23.  The plaintiff was born on 16 June 1976 and was 42 years old at the date of the Accident. The plaintiff was 48 years old at the time of assessment of damages.

24.  In her revised statement of damages (“RSOD”), the plaintiff claims the sum of HK$450,000 as damages for PSLA.

25.  Mr Kevin Leung, counsel for plaintiff, relies on the following cases for making the PSLA claim:-

(1)  Yusaf Ednan v Leighton Kumugai JV (HCPI 684/2001, unrep. 23.10.2002). The plaintiff suffered from fracture of left tibia and fibula, with local tenderness and deformity of left tibia. The plaintiff received close reduction treatment and implant of intramedullary nail to his left leg. The plaintiff suffered pain in his left knee and limited ability to squat. He was not able to return to his pre-accident job and sporting activities. A PSLA award of HK$400,000 was made. With reference to the composite consumer price index, the PSLA award today would be at or about HK$575,000.

(2)  Leung Yiu Sheung v Pa Ling Logistics Co. Ltd [2019] HKDC 546. The plaintiff suffered from fractures of the distal shaft of the left tibia and fibula and soft tissue contusion to both his shoulders. After operation, X-ray showed the fractures were healed with mild deformity. The plaintiff’s wound was found to have been infected and the infection was treated in hospital for 10 days. The overall recovery was reasonably satisfactory. The plaintiff should be able to resume his pre-accident duties with reduced efficiency. He would have residual stiffness over his left knee and residual pain over his shoulders, which would hinder his lifting and carrying ability. The PSLA award was at HK$450,000.

(3)  Yip Chung Man v Secretary for Justice on behalf of The Commissioner of Police (HCPI 485/2001, unrep. 12.04.2010). The plaintiff suffered from fracture of right ankle, which was treated with internal fixation with plating of fibula. A PSLA award of HK$350,000 was made. The PSLA award today would be about HK$520,000.

26.  In my judgment, the plaintiff’s injuries in this case are in line with those suffered by the victim in Yusaf Ednan v Leighton Kumugai JV, supra.

27.  In Lee Ting Lam v Leung Kam Ming [1980] HKLR 657, the serious category of injuries is defined as injury that “leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

28.  The plaintiff suffered a major injury to the knee joint with comminuted fracture because of the Accident and the surgery left a 11cm curvilinear surgical scar the lateral proximal tibia. The plaintiff has reasonable mobility but she is unable participate in recreational activities which she enjoyed prior to the Accident, including gym exercises, yoga and dragon boat practices. Having considered both experts’ opinion in the JMR that the plaintiff’s current disability will be permanent, I am of the opinion that the plaintiff’s injury falls within the lower end of the “serious injury” category.

29.  Besides the cases cited by Mr Leung, I have also considered the following cases. In my view, the plaintiff’s injuries are much less serious than the injuries suffered by the plaintiff in Luk Chi Yin v Wong Fung Shing, but more serious than in Cheng Chi Ming v Li Chau Wan and Anor cited below :-

(a)  Luk Chi NIN v Wong Fung Shing [1999] 1 HKLJ 162. The plaintiff suffered fracture at the tibia plateau of his right knee in a road traffic accident. Open reduction, bone grating and internal fixation with screws were performed. The plaintiff continued to suffer from persistent pain and weakness and wasting of muscles, and experienced difficulty in standing or walking for long periods of time. The plaintiff’s incapacity of whole person is assessed to be 5% to 9%. The plaintiff’s injuries fall within the lower end of the serious injury category. A PSLA award at HK$475,000 was awarded on 6 November 1998. The PSLA award at today’s value would be at or about HK$650,000.

(b)  Cheng Chi Ming v Li Chau Wan and Anor [2005] 3 HKLRD H8. The plaintiff fell on to the ground during a physical altercation and fractured his right lateral tibia plateau. He was treated with open reduction, internal fixation and casting. Sick leave was granted for 11 months. Later examination showed the plaintiff’s lateral tibial plateau fracture collapsed, resulting in angulation of lateral compartment of knee joint. There was also significant muscle wasting of right lower limb. The plaintiff was assessed to have 4% impairment of the whole body. The PSLA award on 8 July 2005 was HK$250,000 which is equivalent to about HK$400,000 today.

30.  Having taken into consideration of the PSLA awards in the above cases and the level of inflation since those decisions were made, I am of the view that the appropriate PSLA award in this case should be at HK$590,000.

Pre-trial loss of earnings

31.  At the time of the Accident, the plaintiff was a dental surgery assistant employed by the Hong Kong Government. She earned a basic salary of HK$33,290 per month.

32.  Due to the Accident and injuries sustained by her, the plaintiff was granted sick leave from 18 January 2019 to 17 September 2019. The plaintiff returned to her pre-accident job after the sick leave period expired. I consider the sick leave period given by the treating doctors at the O&T of UCH to be reasonable. This is supported by the experts’ opinion that the sick leave was reasonable and appropriate.

33.  During the first 6 months of her sick leave, the plaintiff was paid in full by her employer, hence there was no loss of earnings. However, from the seventh month onwards, she was only paid half of her salary for her sick leave. At the assessment hearing, the plaintiff submits that a total of HK$40,435.96 was deducted during the sick leave period, and therefore there is a loss of pre-trial earning of HK$40,435.96. The defendant does not dispute the amount. Hence, for the sick leave period from 5 July 2019 to 17 September 2019, I would award the sum of HK$40,436 as pre-trial loss of earnings in this case.

Loss of earning capacity

34.  The plaintiff is now 48 years old. She resumed her pre-accident job as a dental surgery assistant. The plaintiff will retire at the age of 60. The plaintiff claims a sum of HK$210,000 under loss of earning capacity in the RSOD, but later in his closing submission, Mr Leung accepted that that reasonable amount should be around HK$100,000. The defendant challenged the claim and suggested HK$50,000 instead.

35.  In Chan Wai Tong v Li Ping Sum [1985] 1 AC 446; [1985] HKLR 176 (PC), which followed the English Court of Appeal’s decision in Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, the question to ask when assessing damages under this head is: whether there is a risk that the plaintiff will lose his employment at some time in the future during the claimant’s working life and will then suffer financial loss because of his disadvantages in the labour. The court has to evaluate the present value of that future risk by considering the degree of risk, when it may occur and all the factors which may affect the plaintiff’s chance of getting an equally well-paid job or any job.

36.  Dr Law puts the plaintiff’s whole person impairment at 5%. Mr Leung submits that given the Dr Law’s opinion that the plaintiff will not be able to withstand standing or walking for a long period of time, an award under this head of damage should be made to reflect her difficulties in carrying out her job as a dental surgery assistant.

37.  The defendant on the other hand submits that the plaintiff is able to resume her original employment at the time of the Accident, and that both experts agreed that the plaintiff will be able to continue her job as a dental surgery assistant. Dr Lung puts the plaintiff’s whole person impairment at 2% and indicated that she does not suffer any handicap in the open labour market, and should have no significant difficulties in performing the duties of a dental surgery assistant.

38.  I prefer Dr Law’s opinion. I also accept the plaintiff’s submission that the inability to stand for long periods of time will limit the plaintiff’s performance at work. However, it is important to consider that as the plaintiff is a civil servant, I find the risk of the plaintiff losing her job by reason of the injuries is rather low. I therefore opine that a 3-month period based on the plaintiff’s current salary of HK$33,290 per month will be appropriate. It comes up to a sum of HK$99,870. I shall round it up to HK$100,000 to represent the award for loss of earning capacity in this case.

Special damages

39.  In the RSOD, the plaintiff claims HK$58,000 as medical and travelling expenses. The defendant challenged the amount and submits that medical expenses incurred after 7 January 2020 should not be awarded as the plaintiff was discharged from the O&T. The defendant further submits that the plaintiff did not need to receive private physiotherapy treatments as only self-exercises for at-home rehabilitation were recommended by the PD at PWH. The defendant also challenged the plaintiff’s need for further physiotherapy based on the fact that she did not receive or ask PWH for painkillers since she was discharged.

40.  During the assessment hearing, the plaintiff explained her reasons for seeking private physiotherapy service in cross-examination. The plaintiff stated that the physiotherapy treatment provided by PWH was inadequate to help her with her pain and it affected her ability to do rehabilitation exercises. I am of the opinion that the plaintiff did not exaggerate her residual symptoms and needs for medical treatment. I find the plaintiff’s evidence to be credible and reasonable. As for the issue on painkillers, the plaintiff told the court that she was able to get prescribed painkillers from her colleagues if she needs them, which I also find to be believable.

41.  In light of the evidence produced by the plaintiff at the assessment hearing, I would accept her claim for medical expenses at HK$56,504 and travelling expenses at HK$1,496 as reasonable amounts. I would therefore award a total of HK$58,000 as special damages in this case.

Interest

42.  In this case, I would also award interest on general damages at 2% per annum from the date of issue of writ up to the date of judgment and thereafter at judgment rate until payment. I would also award interest on pre-trial loss of earnings and special damages at half of judgment rate from the date of Accident (ie 17 January 2019) up to the date of judgment and thereafter at judgment rate until payment.

Summary of calculations

43.  Based on the above findings, I would allow the following awards in this case:-

PSLA			HK$590,000
Pre-trial loss of earnings			HK$ 40,436
Loss of earning capacity			HK$100,000
Special damages			HK$ 58,000
	Total:		HK$788,436

Costs

44.  The plaintiff is entitled to the costs for the assessment. I will make an order nisi that the defendant do pay the plaintiff the costs of the assessment in this case, such costs to be taxed if not agreed, with certificate for counsel. In the absence of any application by the parties to vary the same within 14 days, the order nisi will become absolute.