WO SUI LEUNG v. LEUNG CHUN MAN

HCPI 648/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 648 OF 2011

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BETWEEN

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J U D G M E N T

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BACKGROUND

1.  Plaintiff, a security guard was injured after being rolled over by a forklift driven by the defendant on 17 July 2008.  He now claims damages for personal injuries.  Interlocutory judgment on liability was entered for the plaintiff pursuant to a consent order dated 20 September 2010.  This is the assessment of damages hearing.

INJURIES AND TREATEMENTS

2.  The plaintiff was admitted to the Accident and Emergency Department (“AED”) of Princess Margaret Hospital (“PMH”) immediately after the accident.  Medical examination revealed multiple abrasions over his left hand, right upper limb and right knee, bruise over his left face, and pain and tenderness over his left hip with restricted movement.

3.  X-ray showed bony fracture of his neck of left femur.  The diagnosis was fractured neck of left femur bone.

4.  The plaintiff was then admitted to the Orthopaedics and Traumatology Department of PMH.  Radiographs showed that the plaintiff had sustained Garden Type III fracture neck of left femur.  Emergency operation on closed reduction and screw fixation was performed the next day.  After the operation, the plaintiff was referred to physiotherapy department for non-weight bearing walking exercise.

5.  On 25 July 2008, the plaintiff was transferred to Caritas Medical Centre (“CMC”) for further rehabilitation.

6.  He attended 11 follow up treatments in the Outpatient Orthopaedic Specialist Clinic of PMH from 29 August 2008 to 29 June 2010.  In his last treatment, the plaintiff still had mild residual left hip pain.  He also had leg length discrepancy.  He could only manage to walk with one stick and his walking tolerance was only about 30 minutes.

PLAINTIFF’S PRESENT COMPLAINTS

7.  It is said by the plaintiff in the Revised Statement of Damages dated 10 March 2011 that presently he still suffers, due to the accident, inter alia, the following complaints: -

(a)  restricted movement of left shoulder;

(b)  pain, tenderness and crepitation of left shoulder joint;

(c)  restricted left upper limb movement, can only lift left hand to shoulder level;

(d)  reduced strength of left shoulder and left upper limb;

(e)  residual pain, stiffness, weakness over left lower limb;

(f)  residual pain, stiffness, weakness over left hip;

(g)  restricted active movement of left hip joint;

(h)  difficulty in climbing up stairs (need to hold rails or climb up stairs with stick);

(i)  short standing tolerance (15 minutes);

(j)  short walking tolerance (30 minutes);

(k)  unable to stand on single leg or tiptoes;

(l)  have to change sitting posture every 30 minutes;

(m)  reduced lifting capacity;

(n)  cannot squat;

(o)  shortened left thigh by 1 cm;

(p)  muscle wasting of left hip;

(q)  limping gait;

(r)  can only manage to walk with a stick; and

(s)  pain at wounds.

MEDICAL EXPERT EVIDENCE

8.  According to the joint orthepaedic report dated 24 January 2011 both Dr Jack W K Wong for the plaintiff and Dr Lee Po Chin for the defendant agreed that the plaintiff sustained fracture of left femur, superficial wounds over the limbs and left side of face and that these injuries were compatible with the circumstances of the accident as described.

9.  They, however, found lack of documentation of left shoulder injury in all the medical notes, records available and agree that the same was not caused by the accident.

10.  Dr Wong opined that it might be because the plaintiff used the crutches, the upper limb loading resulted in the shoulder pain.

11.  Dr Lee disagreed and said that if that were so, the shoulder pain should be on the right side as the upper limb loading would be on the right side when crutches were used on walking due to the fracture of the left hip.  Dr Lee said it was unlikely that the left shoulder pain and stiffness was related to the accident injury.

12.  Both experts agreed that the bone scan revealed avascular necrosis (“AVN”) at the suparo-lateral aspect of the left femoral hand with degenerative changes.

13.  They also agreed that the plaintiff still suffers from left hip pain, weakness and stiffness and that his standing and walking tolerance would be limited and that he cannot walk without a stick or a companion and had pain when he moves his left hip, squats, walks during change of weather or at night.  It is said also that his sleeping is disturbed and his left hip movements is restricted.

14.  It was set out in the Joint report that the plaintiff cannot walk independently or efficiently and he could only walk without a stick for short distance continuously and with small steps.  The experts said they believed that the plaintiff could not stand on single leg or on tiptoes and he cannot walk on heels or on tiptoes.

15.  They also found shortening of left thigh by 1 cm, tender and hypertrophic scar over upper thigh with restricted active movements of left hip joint.  They found however no difference in the thigh and calf girth between the left and right lower limbs.

16.  X-ray of the left hip joint revealed solidly united fracture with femoral head avascular necrosis and degenerative joint changes.

17.  They agreed that clinical and radiological findings were consistent with left hip fracture which resulted in avascular necrosis and degeneration.  They did not find any pre-existing and co-existing disease that had affected the injury or its recovery.

18.  They also found that all other superficial wounds had healed well without complication.  The examination of the joint revealed pain, tenderness, crepitation and restricted movement.

19.  The experts agreed that plaintiff needs hip joint replacement.  Dr Wong opined that the cost for an uncomplicated surgery and post-operative rehabilitation for semi-private patients in private hospitals is about $300,000 and that plaintiff needs another one year to recover from the surgery.

20.  Dr Lee opined that the cost for total hip replacement performed in private hospital for an ordinary class patient is about $130,000 to $150,000.  The rehabilitation takes about four months.  If the operation is performed in public hospital, the cost is about $3,000 to $5,000.

21.  They expected that there will be improvement in pain and limb shortening.  Dr Lee opined that normally a relatively painless hip is expected and functional improvements should be significant and that normally plaintiff should not need a stick for walking.

22.  They agreed that the plaintiff should be reassessed one year after the surgery or when his condition becomes static.

23.  However, should he choose not to have the surgery, the residual left hip pain, stiffness, weakness will be permanent, the symptoms will further deteriorate.  Dr Wong opined that he needs symptomatic treatment for the rest of his life, the average annual cost is about $20,000.  Dr Lee opined that the pain at this stage may be tolerable with a stick.  He said as plaintiff has similar left thigh girth compared to the right side, this suggests that the plaintiff has been using the left leg for exertion as frequently as the right. Dr Lee said this is certainly not compatible with the severe, functionally disabling pain plaintiff described and the marked restriction of left hip movements he demonstrated at the joint examination.  However, the pain is expected to deteriorate and the chance of persistent pain developing that required continuous medical treatment will be expected in five to ten years time.  He said the cost will be about $10,000 to $12,000 annually in the private sector.  Such medical treatment will not be necessary after total hip arthroplasty.

24.  Both experts agreed that the plaintiff needs walking stick.  Dr Wong opined that the annual replacement of the walking stick cost is about $1,000. Dr Lee opined that walking stick seldom needs replacement more frequently than once every five years.  He said it may not need replacement at all, as only the rubber cap needs replacement every six to twelve months.  The annual cost of which is less than $100.

25.  Dr Wong opined that the ambulatory capacity of the plaintiff is greatly affected.  He needs waling aids with he goes out, he will have pain with walking and standing, he cannot squat, run or jump.  His social and recreational activities will be affected.  He cannot take up most of the sports.

26.  Dr Lee while agreeing that plaintiff needs a stick for walking, he opined that the ambulatory ability of the plaintiff should be reasonable, based on the similar girth of both lower limbs.  He said the plaintiff may have pain during prolonged strenuous walking and he probably may not be able to jump and run.  There will be limitation of his ability to return to sport except swimming.

27.  Dr Wong opined that the plaintiff is unable to resume his pre-accident occupation as a security guard.  Given the physical impairment and his limited education, there will not be any suitable gainful job for him.

28.  Dr Lee agreed that based on plaintiff’s description of his job nature, he is unable to return to his pre-accident.  He should be able to work if the security guard job work only involved sitting in control room or registering incoming or outgoing car in industrial building.  He may also be able to return to jobs that are sedentary in nature.

29.  Plaintiff was recommended sick leave intermittently up to 29 December 2009 for the hip fracture.  Dr Wong opines that the recommendation was appropriate and further opines that sick leave should be recommended continuously from the day of accident to 29 December 2009.

30.  Dr Wong further opines that he needs another twelve months to recover from the hip replacement surgery.

31.  Dr Lee agrees that the sick leave granted by the MAB is reasonable in view of the complication of the fracture healing.  It means therefore that Dr Lee does not consider the breaks between such sick leaves up to 29 December 2008 appropriate.  If a total hip replacement is performed, the recovery time he said is normally about four months.

32.  The experts also suggest that the plaintiff be reassessed after the hip replacement surgery.

33.  It is said by the experts also that if plaintiff fail to proceed with the hip replacement surgery then, according to Dr Wong this case of avascular necrosis of the femoral head with moderate findings would further deteriorate with time.

EVIDENCE FROM THE PLAINTIFF

34.  Plaintiff in court adopted his witness statement dated 21 October 2010.

35.  According to the plaintiff, before he moved to Hong Kong, he was a farmer and a lorry truck driver.  After his arrival in Hong Kong in year 2002, he had worked several years in Chinese restaurants as an odd job worker and since about one year before the accident, he became a security guard earning $6,400 per month working 26 days a month and 12 hours a day (ie 312 hours a month).

36.  Plaintiff said he had received employees compensation payment in respect of the accident in sum of $93,106.67 although the Employees’ Compensation Acknowledgment of Receipt showed the payment to be $95,732.67.  In fact, in the Revised Statement of Damages, the sum of EC payment received is confirmed to be $95,732.67.

37.  According to the Form 7 and Form 5 disclosed, the sick leave approved by the medical assessment board are for periods from 17 July 2008 to 5 May 2009 and for period 16 June 2009 to 29 December 2009, totalling 475 days, not including 15 days statutory holidays.

38.  Plaintiff said he received the closed reduction and screw fixation operation the day after the accident.  He was hospitalized 9 days afterwards. He said shortly after the accident, he had pain even when he slightly moved his body and he was unable to sleep.  He was given painkiller pills/injection. After the 9 days hospitalization at PMH, he further stayed in Caritas Hospital for rehabilitation treatments until 11 August 2008.  Upon discharge from hospital, he did attend follow ups at the Orthopaedics and Traumatology Department of PMH.

39.  Plaintiff said for the few months after the accident, he had to use wheelchair for ambulation which was very difficult.  He said as he needed the assistance of others, he would try not to go out.  Further, he said his home was too small for use of wheelchair.  He had to use the portable urinals for urination.  He would also lean against the furniture in the house to make his way around his home but leaping step by step using the right foot.  He said since about March 2009, he could walk with the aid of the walking stick.

40.  He said after the accident, he could not take care of himself all by himself and therefore had to be taken care of by his wife until about 2 months after the accident, then he started to wear clothes by himself but he found he could not lift his left hand, the whole left shoulder appeared frozen.  He said up to time of witness statement, ie 21 October 2010, there had not been much improvement.  He said his left hand could not stretch to the back so much so that he could not scratch his own back.

41.  He said during the follow up in June 2010, it was suggested to him by the doctor at PMH that he could have hip replacement.  Plaintiff said as that was a major surgery involving a lot of blood loss and operational risk, he really did not wish to have the hip replacement but the doctor said that should he not proceed with the operation, the leg length discrepancy could become more serious and he could even not be able to walk.  He said he therefore had no option but to take the operation.

42.  Plaintiff confirmed in court that Dr Tse Yun Tin Paul of Congruence Orthopaedics and Rehabilitation Centre told him that the hip replacement operation and its related expenses, if performed in private sector, would cost about $170,000 to $175,000 and that the same could be arranged within 2 weeks.  He said he would have another follow up at PMH in February 2013 but no date for the hip replacement operation had yet been fixed.

43.  Plaintiff said further that because of the leg injury, he could not sleep on his left side and he would not stretch his left leg during sleep, otherwise there would be numbness and he could not sleep.

44.  He said in court that presently, he had difficulty in walking and when there was a change of weather, he felt pain and needed to take painkiller medicine.

45.  He said because of the accident, he seldom goes out as he was afraid of being knocked by others and because of the difficulty in ambulation.  Before the accident, he says he would go to the garden near his home for morning exercise.

46.  He said before the accident, he helped in doing all household chores, now he would only help out the household job not in strenuous nature.

47.  He said further that even after the expiry of the sick leave, he could not work.  He said with his physical condition, he could not resume his pre-accident security guard work.  He said to his understanding, security guard of up to 70 years old is employable to do work for single storey buildings.  He said however because of the physical handicap due to the accident, he could not renew his licence as a security guard.

48.  He said when there was pain, it would not go away whether he stand or sit.

49.  He said he did not return to work after sick leave partly because of the pain and partly because no one hired him.

50.  When asked why he could not take up other work such as cashier, he said noone would hire him as he did not know how to do the job.  Further he said he sometimes needed to go to the doctor.

51.  When cross-examined, plaintiff said he sometimes felt pain when walking, not always.  He said he could not sit for very long.  He said there might be pain if he walked for over 25 minutes.

52.  He said when there was pain, it would not go away whether he stood or sit.

53.  He said further in cross-examination that normally he would not walk up or down the stairs as he was afraid it might cause big problem.  When he was asked if he did attempt using the stairs, he said he had not tried before.

54.  In court, a surveillance video tape was played in the middle of cross examination of the plaintiff which showed that plaintiff had on 17 December 2011 and 19 December 2011, taken trips on foot walking quite briskly from his home to and from a off course jockey club betting centre.  The tape showed the plaintiff had not been accompanied at all during these trips and that although he had a walking stick in his hand, for most of the time, the stick was held in mid air not having any contact with the ground.

55.  Plaintiff was seen standing in front of the traffic light, the walking stick was off the ground and he was smoking.

56.  He was seen walking down a flight of stairs about 50 steps with little or no support from the walking stick, holding a cigarette in one hand, the stick in the other.

57.  He was seen standing in a queue in the betting centre with walking stick not on the ground and both hands employed to write on the betting slip.

58.  At times, the tape showed plaintiff walking whilst reading the chits in his hand, walking stick not on the ground.  His eyes were on the chits while walking up the stairs unaided, cane not touching the ground at all for half of the journey.  He was seen standing and reading newspaper near the newspaper stand, unaided as walking stick was not on the ground.

59.  After viewing the tape, plaintiff explained and said his physical condition was better at time the surveillance tape was shot ie December 2011as compared to present that his condition deteriorated.

60.  Plaintiff said also he did tell doctor the deterioration of his health. He said in February 2012, he did inform the doctor of this during consultation but he was unable to produce any receipt for medical consultation but merely a receipt for medication.  On further cross examination, the plaintiff admitted that he did not tell the doctor that his condition worsened in the few months prior to the consultation, he merely told the doctor that he had pain and therefore needed medication.

61.  When he was further cross examined as to when the deterioration occurred, he then said it appeared to be July 2012.  He was unable to describe how his condition worsened, he merely said there was pain.

62.  When he was told that as he had visited Dr Johnson Lam in May 2012, whether his “deterioration” occurred in May 2012.  He said if the visit was made in May 2012, then it was May 2012.  He disagreed that he had not told Dr Lam of the recent deterioration although the report did not include the alleged deterioration.

63.  Plaintiff was again questioned why he said he did not even attempt walking up or down the stairs when he was actually seen walking up and down the stairs in the tape, he failed to explain.

64.  He also admitted that during the trip walking to and from the off course betting centre, he had not sit nor did he sit during his stay at the off course betting centre.  He said he was standing inside.

65.  He was also asked if he was really afraid of being knocked by other pedestrian as he was seen reading newspaper while standing near the newspaper stand, he said sometimes one could not afford to be afraid “有時驚唔到咁多”.  He was again asked if he was afraid of being knocked, why instead of paying attention to people around him, he chose instead to read the betting chits whilst walking, he maintained he had been careful.

66.  He was also cross-examined why in the medical record of PMH in June 2011, he was said to have only complained of “mild and hip pain occasional”, he admitted having so told the doctor.

67.  In x-examination, plaintiff clarified that in fact he had not used crutches but instead he used walking frame.

68.  Plaintiff admitted that if he was employed as a cashier and training was given to him, he might/might not know if he could manage the job as a cashier.

69.  Plaintiff now agreed he would now walk for 30 minutes without problem.  This is inconsistent with his “present complaints” in the Revised Statement of Damages.

70.  He said he had incurred taxi travelling expense of $8,000, travelling to and from PMH and medical fee (outpatient and inpatient) of $3,056.  He had also incurred $10,000 for nourishing food.

71.  When asked what sort of nourishing food did he have when he claimed $10,000 for tonic food, he said pork and beef and Chinese herbs.

ANALYSIS OF EVIDENCE

72.  It is submitted by Mr Gary Chung, counsel for the defendant that the plaintiff suffered fracture neck of left femur, superficial wounds over the limbs and left side of face, AVN at left femoral head, left hip pain, weakness and stiffness, shortening of left thigh by 1 cm, should plaintiff choose not to have the surgery, the residual left hip pain, stiffness and weakness will be permanent.  In fact, I am told that plaintiff had not received the hip replacement surgery, hence those symptoms now should still remain and that the only matter in dispute would really be the extent and degree of plaintiff’s sufferings.  I agree.

73.  This court noted that plaintiff’s evidence given in court before the surveillance tape was played actually contradicted what was shown on the tape. His “present complaints” in the Revised Statement of Damages and the witness statement which he adopted in court as his evidence in chief also appeared untrue from what one could see from the surveillance tape.  He had tried to explain that there was “deterioration” of conditions since the tape was shot but he could not tell when the same occurred and the medical report of Dr Lam who had seen the plaintiff in or about May 2012 had not maintained of such deterioration.  Plaintiff’s explanation that Dr Lam had failed to put it in his report is not believable.  In any event, it is simply untrue when he said he had not even attempted to use the stairs when he actually was seen walking up and down the stairs without the aid of the walking stick and without having to hold onto the railings.  His demeanor in the tape clearly showed he had no difficulty in ambulation, although with a very slight limp.  He could even read or smoke whilst he walked unaided.

74.  In fact, he admitted that he was either walking or standing in the tape. He did not take rest although that journey on 17 December 2011 from home took 1 hour 24 minutes.

75.  Further if there was indeed “deterioration”, there was no reason why he would not tell the doctors.  In the absence of record of such complaint in all the updated medical records, I do not accept that he did tell any doctors of the same and therefore I conclude the “deterioration” had not really taken place.  His evidence about deterioration only came out when he was cross-examined on the disparity in his condition from what he told the court and what was shown on the tape.

76.  Not accepting there had been such deterioration as alleged since the shooting of the tape, I do not find plaintiff a reliable witness.  He clearly has exaggerated his condition.  I cannot see how the injuries of the plaintiff from the accident could prevent him from working as a security guard of the job nature as described by Dr Lee or a job sedentary in nature.

77.  I also do not accept he did receive consultation from the doctor in February as the receipt from the hospital was merely one for medication.

78.  I doubt whether in fact he had informed the government doctor of his decision to proceed with the hip replacement operation because if that was done, why would him not know if the government doctor had already put him in the waiting list for the operation.

79.  In my view, it seems probable that he had not even informed the government doctor of his decision to proceed with hip replacement despite what he said in the witness statement dated 21 October 2010.

80.  Further, the medical records in June 2011 showed that he complained only of occasional mild left hip pain.  In the absence of evidence to contrary, the plaintiff could easily have worked in a job sedentary in nature.  He had however not worked at all.

81.  I take the view that the reason why he was not working after the accident, was mainly due to reasons other than the accident.

82.  In fact, the plaintiff was aged over 64 in December 2009 ie on expiry of sick leave.

83.  According to the employment contract between the plaintiff and his employer at time of accident, when the plaintiff reached the age of 65, the employment contract will terminate automatically.  It follows therefore that even in the absence of the accident, he would not be able to remain in his job when he became aged 65.  He says because of the handicap, he could not obtain a licence as a security guard.

84.  Plaintiff says he could still work as a security guard in single building, had it not been for the accident.

85.  Although Dr Wong in the joint report says that the plaintiff would not be employed after the accident, I prefer the evidence of Dr Lee who says he could take up either sedentary work or job as a security guard, which does not need prolonged standing or walking.  As I said, the surveillance tape clearly alleviates any doubt that the plaintiff might not be able to cope with jobs fitting such description.

86.  I also take judicial notice that with the implementation of minimum wages, the plaintiff should not be earning anything less than his pre-accident income ie $6,400 a month in the sedentary job.

87.  According to the plaintiff, he worked 312 hours a month before the accident and applying the minimum wage of $30 per hour, if he worked the same hours now, he would be earning $30 x 312 = $9,360 a month.  Assuming he wanted to earn $6,400 a month, as before, he needed to work 8.2 hours a day 26 days a month only.  In my view, practically, impediment preventing the plaintiff to obtain a sedentary job is really due to reasons unrelated to the accident but his age.

88.  It is also clear to me that the left shoulder pain complaint are not related to the accident.  I prefer evidence of Dr Lee which had not been rebutted by Dr Wong in the joint report.

89.  On this issue, Mr Chung submitted that the case of Wong Ching Ha v Manbright Company Limited trading as Ngan Lung Restaurant unrep DCPI 886/2007, Hon Judge H C Wong 31 March 2008 should not be of assistance.  He said in the Wong case, there was objective finding of bone bruising and oedema in the posterior part of the head of the right numerous and superspinatus tendonitis and early supacrominal bursitis.  Steroid injection has to be injected.  Physiotherapy treatments 2 to 3 times a week were necessary.  Her conditions were compatible with blunt trauma to the right shoulder and therefore affected the upper limb.  Inflammation of rotator cuff tendons was found, which resulted with cartilage damage and future degenerative arthritis, which will cause persistent shoulder pain and impaired function of the right upper limb.  Further, the right shoulder showed positive sign of reduced muscle tone as a result of wasting.  Surgery is expected to be performed.  In the present case, there is only plaintiff’s subjective undocumented complaint of shoulder pain.  Even if plaintiff did suffer from shoulder pain, and assuming the pain was caused by the accident (which is denied) Wong Ching Ha’s conditions was far more serious than the plaintiff’s.

90.  It is true that there was no objective evidence supporting the subjective undocumented complaint in our case here.  I agree that the case of Wong Ching Ha is not of use to this court.

91.  Further, in court, the plaintiff had clarified that he had never used crutches since the injury but had used walking frame only.  That again ruled out the explanation given by Dr Wong.

92.  The absence of difference in the girth of the plaintiff’s right and left thigh and the lack of muscle wasting also supported that plaintiff had been using the left leg and the right leg equally.  This inference is again consistent with what one observed in the surveillance tape.

93.  It is common ground that the plaintiff was not sporty both before and after the accident.

94.  The tape clearly showed that plaintiff had no problem in ambulation, he was seen walking, both on level grounds and up and down the stairs and standing for long periods without any need for aid or support.

95.  In court, he sat during the assessment hearing without exhibiting any uneasiness or discomfort although when cross examined, he denied having no problem in sitting for long periods.

96.  In fact, the experts noted during their examination of the plaintiff in December 2010 that the plaintiff sat normally during the whole examination.

97.  In my view, the plaintiff had clearly tried to exaggerate the degree and extent of his pain and handicap resulting from the accident.  The “present complaints” in the Revised Statement of Damages are clearly either not present or accurate.

98.  As for the issue of sick leave, whilst the experts both agree that the sick leave granted under Form 7 be endorsed.  Dr Wong for plaintiff also seeked for sick leave for the period between the approved sick leave ie between 6 May 2009 to 15 June 2009.  No reasons was given.

99.  Again, on this issue, I prefer the expert view of Dr Lee.

100.  As for the expected sick leave after the proposed hip replacement surgery, the experts recommended 12 months and 4 months respectively.  Both experts, as Mr Chung submitted, did not elaborate on why there was such difference.

QUANTUM

PSLA

101.  The plaintiff claims the sum of $500,000 under this head.

102.  Both Mr Jackson Poon, counsel for the plaintiff and Mr Gary Chung, counsel for the defendant have cited to this court numerous authorities.

103.  In the closing submission of the plaintiff, he referred this court to the case of Yu Shui Chun v Club Chisen Ltd HCPI 134/1994, Ho Ah Look v Nam Kin Scaffolding Limitedi HCPI 156/1996, [1999] HKLRD (Yrbk) 382, Li Wan Choi v Choi Wan Hing and Another HCPI 1200/1998, Ho Ka Yin v Express Security Ltd HCPI 344/2008, Waan Chuen Ming v Lo Kin Nam trading as Kar Kin Engineering & Supplier Co and Another HCPI 588 and 591/2003, Li Hung Ying v Yiu Kai Lun HCPI 896/2006, Lee Kwan Tong v Liu Yee Lim and Others HCPI 1383/1996, Sun Jianqiang v Chan Tai Kau and Another HCPI 1375/2000, Kot Yik Kam v Kwok Kam Hung HCPI 292/2004, A Cheung J, 1 February 2005, where the sum of $430,000 to $650,000 was awarded under this head.

104.  Mr Chung for the defendant invited this court to attach no weight to these cases as they are not good comparables.

105.  It is said that in the case of Yu Shui Chun, apart from the femoral fracture and AVN, the plaintiff also suffered from psychological problems which led to reduction of plaintiff’s activities.  He also suffered from depression and had feelings of isolation.  Further, anti-inflammatory medications has caused the plaintiff epigastric pain or ulcer syndrome.  The plaintiff there was hospitalized for 88 days.  Sick leave of 26 months was granted.

106.  Further, he said that in the case of Ho Ah Look, the plaintiff fell from height and sustained fractures at both femur and pelvis.  5 operations altogether were performed.  He was hospitalized for more than 3 months.

107.  As for the case of Li Wan Choi, the plaintiff suffered multiple fractures at pelvis, left femur, left tibia, L5 vertebrae and left ankle (medial malleolus).  He was discharged after 4 months of hospitalization.

108.  Mr Chung submitted further that in the case of Ho Ka Yin, in the first accident, the plaintiff received 2 fractures in his left and right femur.  She needs assistance with ADL.  She also suffered from psychological post-accident anxiety.  In the second accident, plaintiff sustained fractures at right femur and left tibia.  As a result, she could not take public transport, not even taxi.  ADL and ambulatory capacity was greatly affected. There were a total of 2 accidents and she was hospitalized for 7 months.

109.  As for the case of Waan Chuen Ming, Mr Chung pointed out that in that case the plaintiff had his both legs pinned and crushed in an industrial accident.  Amongst other injuries, there were multiple injuries involving left femur, open fractures of 3 fingers, fracture clavicle and fracture left radius.  The fracture at radius were subsequently found to have displaced.  He was hospitalized for 9 months.  He suffered from serious impairments on all 4 limbs.

110.  He added that in the case of Li Hing Ying, the plaintiff sustained fractures to femur, C1 vertebrae, right little finger, left rib, public ramus and right orbital wall.  He also had multiple teeth loosening.  He was initially hospitalized in the Intensive Care Unit.  Multiple operations were performed on both of his lower limbs.  He was hospitalized for a total of 3 months.

111.  Mr Chung said further that in the case of Lee Kwan Tong, there were multiple fractures at right femur and right tibia and that 3 operations were performed for internal plating, skin grafting and bone grafting.  There was shortening of tibia, resulting in pelvic tilt.  Muscle wasting was also found.  The plaintiff could not take up outdoor activities.  Injuries were considered to be at lowest end of serious injury.

112.  Coming to the case of Sun Jianqiang, Mr Chung submitted that the plaintiff there sustained open fracture to this left femur.  His 3^rd to 10^th ribs were also cracked.  Chest drain was performed.  Altogether, he received 4 operations with another probable in the future.  There was also high degree of muscle wasting.  The plaintiff also encountered cramp and swelling at his lower limb.

113.  In the case of Kot Yik Kam, it was said that the plaintiff there sustained fractures of closed fracture shaft of right ulna bone, closed fracture left distal radius, open fracture at the shaft of right tibia and fibula, closed fracture right medial malleolus and skull fracture.  4 operations were performed.  Subsequently, the plaintiff found memory impaired. There was also unilateral muscular atrophy of the right thigh and calf.

114.  Mr Chung emphasized to this court that the injuries of the plaintiff in these cases were much more severe than the plaintiff in the present case.

115.  He said therefore that the award under PSLA for the above cases should be higher than that in the present case.

116.  On examination of the above cases, I agree with the observations of Mr Chung.

117.  Mr Chung invited this court instead to consider the case of Tam Mei Lin v Fung King Kong, unreported, HCPI 425/2006, DHCJ Gill, 12 July 2007, where the plaintiff was injured amongst other injuries, a fracture of the neck of her femur or hip.  She received first surgical operation by closed reduction and internal fixation with screws, and was discharged 2 weeks after admission. Subsequently, she was found to have suffered from AVN of the femoral head.  13 months of sick leave was granted.  Hip replacement surgery was subsequently performed.  However, she still could not squat, and suffered some pain when she walked or sat for some time.  There was limited movement and residual stiffness and a limp.  She required physiotherapy from time to time.  Due to the injuries, she could only settle for less strenuous jobs, eg cleaner or receptionist.  PSLA was awarded at $350,000.

118.  He referred also to the case of Cheung Kwok Leung v Yip Man HIng Building Materials Co Ltd, unreported, DCPI 2738/2009, DDJ Kent Yee, 3 January 2012, where the plaintiff fell and suffered a Garden type IV comminuted fracture.  He received an operation the next day for closed reduction and screw fixation (“the 1^st operation”).  However, after the 1^st operation, displacement of fracture was noted.  He therefore received a second operation for close reduction and internal fixation (“2^nd operation”).  Subsequently, the plaintiff was diagnosed to have suffered from AVN.  There was articular collapse and early ostoarthropathy.  The plaintiff therefore received a third operation for removal of screws and hip arthroscopy was performed.  Altogether, the plaintiff received a total of 24 sessions of physiotherapy and 24 acupuncture treatments.  A bit more than 11 months of sick leave was granted.  PSLA was awarded at $400,000.

119.  Mr Chung submitted that the subject injuries in Tam Mei Lin and Cheung Kwok Leung are very similar to the present one.  However, plaintiff in Cheung Kwok Leung received altogether 3 operations.  On the other hand, Tam Mei Lin almost fall within all fours of the present scenario.  He submitted that an award of $350,000 under this head will be appropriate.  Despite plaintiff’s subjective complaint of muscle wasting at his hip and left lower limb, it is not substantiated by any medical evidence.  In fact, objective examination by the Joint Experts revealed “No Muscle Wasting”.

120.  Mr Poon for the plaintiff tried to distinguish the Tam Mei Lin case and submitted that the age of the plaintiff in our case is older and therefore he needed longer time to heal and therefore more suffering.  He further said as the plaintiff here had not yet received the hip replacement operation, he had suffered for 4 years and 2 months whereas the plaintiff in the Tam case only suffered 2 years 5 months.  He said therefore the $350,000 award in Tam case should be adjusted to $500,000 in our present case.

121.  I have reservation to accept such argument.  I do not agree that because the plaintiff is older, his award under this head should be larger.  There is no evidence before this court that because the plaintiff is older his recovery would be more prolonged.  In fact, Mr Chung has invited this court to consider that as the plaintiff is younger, his life expectancy is longer and therefore his sufferings arising from residual pain and disability would be more prolonged and should really be entitled to a larger award.  I am not persuaded that the age of the plaintiff on its own should give rise to a different award for PSLA.

122.  Mr Poon asked this court to note that in the case of Lai Kwan Ming v Lee Yin Hang trading as King Yip Company and another HCPI 765/2000, the plaintiff was 50 years old, younger as compared to the plaintiff here who was 67 years and that he did not suffer from AVN nor did he have leg discrepancy as the plaintiff here.  He said therefore the award of $276,000 for PSLA in that case was inadequate in the present case.

123.  Whilst I disagree that old age is a relevant factor to raise the award, I agree that the injuries of the plaintiff here is more serious.

124.  He also asked this court to consider that the plaintiff in the case of Cheung Kwok Keung v Yip Man Hing Building Materials Co Ltd and others DCPI 2738/2009 relied on by the defendant, there the plaintiff did not have leg discrepancy and he could return to his driver job, unlike the plaintiff here and therefore Mr Poon submitted, the award of $400,000 for PSLA should be adjusted upwards in the present case.  He also said the plaintiff there was younger.

125.  Apart from the leg discrepancy point, I find the case a good comparable.

126.  Having considered the authorities referred to me, I find the sum of $430,000 a reasonable award for PSLA in the present case.

PRE-TRIAL LOFF OS EARNINGS

127.  It is agreed that the monthly pre-accident earnings of the plaintiff is $6,400.

128.  Total sick leave granted by the treating doctors and approved by this court totaled 421 days (ie 7 July 2008 to 5 May 2009, 16 June 2009 to 25 August 2009 and 3 November 2009 to 29 December 2009).

129.  Loss of income and MPF for these periods up to 29 December 2009: - $6,400 x 421/30 x 1.05 is $94,303.99.

130.  As explained above, I prefer the view of Dr Lee.  I conclude that the plaintiff can take up work of sedentary nature.  His injuries will not disable him from taking up such job.

131.  In any event, by 29 December 2009 ie expiry of approved sick leave, plaintiff was already aged 64 years and 3 odd months.  As said, under the employment contract between the plaintiff and his former employer, the employment contract automatically determine on 3 September 2010 anyway.

132.  Taking judicial notice of the implementation of minimum wages, I do not anticipate the income from sedentary job working the same hours as the plaintiff did before the accident would give him a lower salary than $6,400 per month.  In fact, no evidence was adduced to show there would be a loss of income if plaintiff chose to change job to one sedentary in nature.  After all, his pre-accident earnings indicated the job was one with very modest pay.

133.  I would however find it reasonable that on expiry of the sick leave, the plaintiff should be given 4 months for him to locate the new sedentary job.

134.  Loss of income and MPF from 30 December 2009 to 29 April 2010 is therefore $6,400 x 4 x 1.05 = $26,880.

135.  The plaintiff did not give this court any concrete evidence or details regarding any unsuccessful attempt to locate a job after the accident.  He just said his friends were reluctant to assist him finding a job.  I am not satisfied that the plaintiff did make efforts to locate a job which, according to Dr Lee, was a job he could manage.  This is evident from the cross examination of the plaintiff.

136.  Plaintiff should not be entitled to any further loss of income as from 30 April 2010 save for the sick leave attributable to recovery following the anticipated hip replacement surgery, which I will come to later.

137.  Total award here is $94,303.99 + $26,880 = $121,183.99.

POST TRIAL LOSS OF INCOME

138.  According to Dr Chung, the sick leave period for the recovery following the hip replacement is 12 months and according to Dr Lee, the same is 4 months.  No assistance has been given to the court to explain for the discrepancy, I find it appropriate to have sick leave set at 6 months.

139.  I am willing to award for loss of income incidental to the recovery period although I have doubt whether, because of his age, he will be employed then.

140.  Award for post trial loss of income would therefore be $6,400 x 6 x 1.05 = $40,320.

LOSS OF EARNING CAPACITY

141.  I agree that because of the residual disability of the plaintiff, he would be disadvantaged in the labour market.

142.  Considering his advanced age and the awards above for loss of earnings and MPF however, the appropriate award under this head would be $20,000.

SPECIAL DAMAGES

i) Medical expenses

143.  Plaintiff in the Revised Statement of Damages claimed $1,956 for inpatient expenses and $1,100 for outpatient expenses, totalling $3,056.  I find the same proved and I so award.

144.  Although Mr Poon in his submission also claimed $4,840, being medical fees for Dr Johnson Lam, the fees charged by Dr Lam was not consultation fee for the plaintiff but rather fee for expert report of which the leave application to adduce the same was refused earlier.  The plaintiff had chosen to prepare the report at his own risk as to costs, without prior leave of the court.  This sum is therefore not allowed.  In any event, the sum has not been pleaded in the Revised Statement of Damages.

ii) Travelling expenses

145.  Plaintiff claimed $8,000 under this head.  In support, he produced taxi fee receipts totalling $1,087.20, the first of such receipts dated 29 August 2008.  There were altogether 8 taxi fee receipts only.  Considering the number of trips made by the plaintiff for medical treatments as disclosed from the medical records, $5,000 is allowed under this head.

iii) Tonic food

146.  In court, plaintiff clarified that he had consumed Chinese herbs and beef and pork as a result of the accident as he was told these food are good for his recovery.  He claimed $10,000 under this head.

147.  In support of this claims, plaintiff only produce receipts totalling $1,585 of which only $520 are receipts issued by dispensary, the rest are receipts issued by meat company.

148.  I really do not find these receipts particularly useful in establishing expenses for tonic food incurred as a result of the accident.

149.  I make an award $2,000 under this head.

iv) Medical appliances, crutch and medication

150.  Plaintiff claimed $2,000 under this head.  Medical fees and medication fee supported by receipts produced totalled $3,166 of which $3,056 have been awarded under the heading medical expenses already.  Accordingly the sum of $110 is awarded under this head.

151.  There is no receipt produced in support of medical appliance or crutches.  No other award is made under this head.

v) Broken personal effects

152.  Plaintiff claimed $500 here.  In view of the nature of injuries, the personal effects would be damaged during the accident.  The meagre sum of $500 claimed is allowed.

153.  Total award for special damages is therefore: -

(i)	Medical fees	$3,056
(ii)	Travelling expenses	$5,000
(iii)	Tonic food	$2,000
(iv)	Medical appliances, crutch and medication	$110
(v)	broken personal effects	$500
	Total	$10,666

FUTURE MEDICAL EXPENSES

154.  Both experts in their joint report after the examination on the plaintiff on 10 December 2010 opined that the plaintiff needed hip replacement surgery.  In the joint report, they took the view that the plaintiff could not walk unaccompanied and that he needed walking stick for support in ambulation, that his walking tolerance was limited to 10 to 15 minutes.  This was in contradiction with what one could see from the surveillance tape played in court.

155.  Parties however fail to instruct the experts for their view after viewing the surveillance tape in form of supplementary report.  Accordingly, though I doubt whether hip replacement is still necessary in view of the improvement of the condition of the plaintiff, especially when the government doctor in June 2011, ie 6 months after the joint report stated that the plaintiff “may” require such surgery, I am not prepared not to follow the view of the experts.

156.  On the other hand, however, there is no doubt that the plaintiff is suffering from AVN and that it is likely that the condition of the plaintiff will deteriorate over time.

157.  Although I doubt whether the plaintiff is really at this stage determined to proceed to hip replacement surgery or whether there is any urgency for such operation in view of the condition of the plaintiff as shown in the tape and in court, it would only be fair that he be paid the expenses necessary for such hip replacement operation in future.

158.  Further, although I agree that the plaintiff has all along been attending public hospital for treatment, I am willing to follow the approach taken by Judge H C Wong in the case of Wong Ching Ha v Man Bright Co Ltd (unrep DCPI 886/2007, 31 March 2008) referred to me by Mr Poon that since it is well known that there will be a long queue for operations at public hospitals, we should not expect tax payers to bear the financial burden for such surgery.  I am willing to make an award for plaintiff to receive such operation in private hospital.

159.  Dr Wong estimated the related expenses for the surgery is $300,000 whereas Dr Lee said the same was between $130,000 and $150,000.  There is another undated estimate for the surgery from a Dr Tse Yun Tim from Congruence Orthopaedics and Rehabilitation Centre which says $170,000 to $175,000.  I consider $150,000 as an appropriate fee for the operation and its related expenses and I so award.

SUMMARY

160.  A summary of awards is set out as below: -

(a)	PSLA	$430,000.00
(b)	Pre-trial loss of earnings and MPF	$121,183.99
(c)	Post trial loss of earnings and MPF	$40,320
(d)	Loss of earning capacity	$20,000
(e)	Specil damages	$10,666
(f)	Future medical expenses	$150,000
	Subtotal	$772,169.99
	Less: Employees compensation and medical fees already received	$95,732.67
	Total	$676,437.32

CONCLUSION

161.  I therefore give judgment in favour of the plaintiff in sum of $676,437.32.

INTEREST

162.  There be interests for PSLA from date of writ ie 28 April 2010 to date of judgment at 2% per annum and interests for special damages including pre-trial loss of earnings at half judgment rate from date of accident to date of judgment.

COSTS

163.  I also make an order nisi that costs of the action be to the plaintiff, save that all costs of and incidental to the transfer to High Court be to the defendant, the same to be taxed if not agreed, with certificate for counsel at District Court scale.

164.  Plaintiff’s own costs be taxed in accordance with legal aid regulations.