CHAN LUNG HING v. NG KAM MAN

HCPI 405/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 405 OF 2012

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J U D G M E N T

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BACKGROUND

1.  On 19 October 2009, plaintiff, whilst during his private vehicle was hit from behind by a tractor then driven by the defendant.  His private vehicle was pushed forward and collided with the back of a lorry.  He was injured and claims for loss and damages.

2.  On 6 June 2012, by consent order, interlocutory judgment on liability was entered against the defendant with damages to be assessed.

INJURIES AND TREATMENTS

3.  After the accident, the plaintiff was sent to Accident and Emergency Department of Tuen Mun Hospital where he stayed until discharge on 23 October 2010.  His chief complaint was neck and back pain.  There was no wound.  There was diffuse tenderness over posterior neck and back.  The range of movement of his neck was reduced to half.  His limb powers was slightly reduced.  His tendon reflexes and sensation were normal.  X-rays of cervical and lumbar spine showed no fracture and bone aligament was normal.  He was later transferred to the orthopaedic and traumatology ward and was treated with medications and physiotherapy.  MRI was taken which showed no abnormality.  Limbs powers returned to normal after 2 days.  On discharge, plaintiff was able to walk unaided.

4.  Plaintiff received a total of 27 physiotherapy treatment sessions since 30 December 2009.  On his discharge on 31 March 2010, plaintiff claimed he had overall 70% impairment subjectively.  Objective assessment showed however that save for range of movement in extension, left and right rotation of cervical spine and range of movement in extension of lumbar spine slightly reduced, the other range of movements of the cervical and lumbar spine was full.

5.  An OT Rehabilitation Outcome Report by Tuen Mun Hospital was prepared after assessing the plaintiff on 1 March 2010 ie 19 weeks after the accident and after the plaintiff had finished 14 sessions of occupational therapy.

6.  The report concluded that due to pain at neck and lower back during normal handling tasks, decreased lifting and carrying strength and tolerance and decrease walking tolerance, plaintiff cannot resume his previous job as a car mechanic.  It is suggested that he shall continue a course of rehabilitation to further improve the conditions.

7.  Plaintiff received a total of 22 sessions of occupational therapy treatments up to 30 March 2010.

8.  Plaintiff also said he had received private chiropractor treatments from 23 October 2009 to 16 December 2010 and consulted bonesetter on 16 November 2009.

JOINT MEDICAL REPORT

9.  Plaintiff was assessed by orthopaedic experts Dr Chun Siu Yeung and Dr Wong See Hoi on 20 December 2010 after which a joint medical report dated 10 February 2011 was prepared.

10.  According to the joint report, the experts were told that the plaintiff used to jog once a week for an hour, went swimming once a week in summer, played badminton with friends 1-2 times a week before the accident happened and that after the accident, he resumed swimming since August 2010.

11.  He said he was a garage owner for 14 years and although he did attempt resuming work, he could not handle heavy items and had to take rest until August 2010.  He said after the garage reopened in August 2010, till time for assessment, the garage was only able to provide simple car check ups and simple tasks like changing lubricants because he could not cope with other heavy works.

12.  According to this joint report, the experts were told that the plaintiff recovered 50% after treatments received and that after March 2010, he did not further receive treatment from Tuen Mun Hospital.  Instead he consulted Accident and Emergency Department of Tuen Mun Hospital when he had increased back pain.  He also consulted general practitioner for similar problem and was treated with drugs and physiotherapy treatment on private basis up to date of assessment at 1-2 times per week interval.

13.  He also told the experts he received acupuncture and herbal treatment in July/August 2010.  He said he did not seek treatment since September 2010.

14.  Sick leave certificate were issued up to 12 May 2010.

15.  At time of assessment, plaintiff complained of

(a)       Intermittent attacks of right side neck pain, occurred 1-2 times a week aggravated by prolonged walking or sitting for over 1 hour, heavy delivery at work over 100 lbs.

(b)       Intermittent attacks of pain and tiredness of lower neck especially on exertion, or jogging with repeated movement for over 15 minutes or climbing underneath the car for inspection.

16.  It was noted that plaintiff came to the assessment walking normally and unaided and he was able to perform a lot of tests including tip toe walking, heels walking, single leg standing and full squatting.

17.  The neck range of motion was full but plaintiff complained of pain on flexion and bilateral rotation.  There was no muscle wasting of bilateral upper limb to suggest any muscle disuse.  Apart from subjective complaint of about 30% decrease in sensation to touch of right whole upper limb, there was no objective sign of upper limb neurology.

18.  Dr Wong opines his neck pain was consistent with persistent soft tissue inflammation of the corresponding area after the accident.  There is no upper limb neurology.

19.  X-ray of cervical spine was unremarkable with no abnormality detected.

20.  Dr Chun is of the view that examination of the neck showed no significant abnormal findings but only subjective symptoms complained.  There was no evidence of inflammation of the neck.

21.  Examination of back showed tenderness over L1 to L3 and right paraspinal muscles.  His back range of movement was full but he complained of pain on flexion and left lateral flexion on extreme range.  There was no muscle wasting of bilateral lower limb to suggest any muscle disuse or any sign of lower limb neurological deficit.  Mr Chan was found positive on 2 of the 3 simulation tests performed.

22.  Dr Wong opines persistent back pain associated with tenderness over lumbar area correspond to persistent inflammation over the injured area.  There is no lower limb neurology.  The Waddell’s test suggests symptoms magnification during the examination.  X-ray of lumbar spine was unremarkable.  Dr Wong believes his complaint of back pain was genuine but likely less severe than demonstrated in the examination.

23.  Dr Chun is of the view that the diffused/widespread tenderness was not consistent with the initial injury.  His present symptoms and signs at the low back is more likely related to issue of compensation.

24.  Orthopaedically, Dr Wong opines Dr Chan has reached maximum medical improvement and is suitable for assessment.  The prognosis is fair to good.  However, he is expected to have residual neck and back pain on heavy lifting and carrying and working in a confined space with prolonged immobilization of neck and back.

25.  Dr Chun says the prognosis is good for both the neck and back.

26.  Both Mr Chan is independent in activities of daily living.  His sports activities was also unaffected.  However, he is expected to have reduced endurance chiefly on heavy lifting and carrying.

27.  Plaintiff told the experts that he run the garage single handed with no help.

28.  His everyday work required frequent lifting and carrying of heavy car components and spare-parts all by himself.  In addition, he had to climb underneath cars for inspection, fixture or maintenance, etc frequently.  With persistent neck and back pain, Dr Wong believes he is expected to have reduced efficiency and capacity on lifting and carrying heavy objects.  With pain over neck flexion, he will also have difficulty to work beneath a car for inspection and fixture.  His work nature changes after the accident and he may find the hiring of an assistant to relieve him of heavy manual work and beneath-car work a good alternative to resume his former scope of business.

29.  Dr Chun said he is able to return to work as garage mechanic and owner with mild discomfort.

REVISED STATEMENT OF DAMAGES

30.  In the Revised Statement of Damages dated 13 December 2012, nearly 38 months after the accident, the plaintiff maintains the complaints he made to the experts when he was assessed on 20 December 2010, ie 2 years back.

31.  Plaintiff says he needs to seek medical consultation or physiotherapy treatment once to twice per week.

32.  He claims: -

(a) medical and hospitalization expenses of about $42,000;

(b) travelling expenses of about $9,000;

(c) tonic food of $6,000, being Chinese herbal medicine and nutrition soups consumed by the plaintiff;

(d) pre-trial loss of income.

33.  Plaintiff says before the accident, he was the sole owner of a garage earning about $15,000 per month.  He used to repair and maintain heavy vehicles. He said however that after the accident, he could only do light duty job such as general check up and changing lubricant, oil filter and air filter replacement work and his earning dropped to about $8,000 per month.  He therefore suffered loss of income.

34.  For pre-trial loss of earnings, he claims

(a) $15,000 x 9.5 months (from 19 October 2009 till early August 2010) = $142,500;

(b) ($15,000 - $8,000) x 33.5 months (from early August 2010 to 25 May 2013) = $234,500.

Total pre-trial loss of earnings claimed = $142,500 + $234,500 = $377,000

35.  He said as he is only aged 36 at time of trial (notional date being 25 May 2013) and he would have retired at 65 in the normal course of event, he claimed post trial loss of earnings using a multiplier of 14.

36.  His claim under this head is $7,000 x 12 x 14 = $1,176,000.

37.  In the alternative, he is claiming the cost of employing an assistant as recommended by Dr Wong to do the heavy maintenance work.  He is claim for salary, inclusive of MPF contribution at $12,000 x 105% = $12,600 per month.  In such circumstances, he claims $12,600 x 12 x 14 = $2,116,800.

38.  He also claims $70,000 under this head, ie 14 x $5,000 (said to be his then current monthly earnings) to compensate his disadvantage and loss of edge in open labour market.

39.  He claims $225,000 under this head.

40.  He claims interest on general damages at 2% from date of writ to date of judgment and interest on special damages at half judgment rate from date of accident till date of judgment.

WITNESS STATEMENT OF THE PLAINTIFF

41.  Plaintiff had prepared a witness statement dated 29 November 2012 in the present case.  He reiterated his pre-accident income was about $15,000 per month and that he was working on his own as a garage owner.

42.  He said he had elected joint tax assessment with his wife who worked as a clerk, and as his income was low, he never filed any tax return for his garage business.

43.  He said after his discharge from Tuen Mun Hospital, although he can walk unaided, his four limbs were weak and slow, his neck and back were still painful and he could not sleep.

44.  He said the physiotherapy treatment and occupational therapy treatment from Pok Oi Hospital and Tuen Mun Hospital respectively up to March 2010, did not work, his back pain later increased and he did seek consultation from Tuen Mun Hospital.

45.  He said from March 2010 till date of witness statement ie 29 November 2012, he was still seeking treatment from private doctor each week 1-2 times for drug or physiotherapy treatment.

46.  He said in July/August 2010, he did receive acupuncture and treatment from Chinese medicine doctor, they brought short term relief but the problem resumed shortly thereafter and he had to take pain killer to relieve the pain.

47.  He said in course of doing repair work for heavy vehicles, he need to handle car parts weighing around 100 lbs and need to rotate and twist his body in various postures.  He said after expiry of sick leave given to him, his neck and back was still painful.  He said after driving for 30 minutes or working under the vehicle for over 15 minutes, the pain became more severe.  He said his limbs were not as powerful as before and he felt pain when he bent his body or rotate his neck.  His working ability was not as good as before and he could only do simple maintenance work such as simple car checks and changing lubricants.  His income dropped to monthly about $9,000.  He said the occupational therapist did suggest that he changed his job but he had no other skill and therefore he continued this trade.

48.  In this witness statement, he said before the accident, each week, he would walk slowly for 1 hour, played badminton 1-2 times, swimming once each week in summer.  He further said that although in summer 2010 he resumed swimming and slow walking, if he walked/sit more than 1 hour, his neck pain intermittently recur.

49.  In this witness statement, he claimed medical expenses $39,680, travelling expenses $7,977 and tonic food $6,000.

50.  In the answer to interrogatories, the plaintiff explained the reason for his registering his garage business “Tai Tung Motors Services” with the Business Registration Office of Inland Revenue Department was to comply with formalities.  He said Tai Tung provided repair maintenance services to tractors and ceased business in May 2009 because he had to vacate the garage premises at Hung Shui Kiu.  When asked why he cancelled the business registration of Tai Tung, the plaintiff replied that was because he stopped operating at Hung Shui Kiu.  He said he restarted his business in June 2009 in Lam Sang Wai.

ANALYSIS

51.  In this assessment hearing, plaintiff is the only person giving evidence.

52.  In court, he confirmed that contents of Revised Statement of Damages and his witness statement.

53.  On discharge from Tuen Mun Hospital, plaintiff was granted sick leave till 6 November 2009.  He subsequently attended Department of Orthopaedic and Traumatology of Tuen Mun Hospital on 6 November 2009, 7 December 2009, 28 December 2009, 25 January 2010, 2 March 2010 and 30 March 2009.  It is noted he only returned to the hospital as and when the sick leave expired.  One wonders why if he was so affected by this residual pain and discomfort that disables him from returning to work and in circumstances when he says the physiotherapy and occupational therapy does not help that he would not return to hospital for medical attention.

54.  On 3 May 2010, plaintiff attended the Accident and Emergency Department of Tuen Mun Hospital and obtained sick leave till 12 May 2010.

55.  This court is not told whether the plaintiff also did previously attend the Orthopaedic and Traumatology Department of Tuen Mun Hospital on the same day ie 3 May 2010 as he was supposed to have the follow up that day when the sick leave given to him expired.

56.  In fact on the same day, he also consulted a Dr Anthony Ng, a general practitioner and was issued sick leave up to 10 May 2010.

57.  Although it is said in the Joint Report as well as his witness statement that he had sports activities before he met the accident, in court, he denied the same when cross examined.  He explained he was just joking when he told the experts of these sports activities, that he did not really mean it.  It is difficult for the court to accept such explanation as he had also included this in his witness statement.  He had signed in the Statement of Truth in both cases and has confirmed contents of these documents in court.

58.  In the Revised Statement of Damages, he said his pre-accident monthly earnings is roughly $15,000 per month.

59.  In court, when cross examined, he said this is merely his estimate.  He said he first estimate the monthly turnover of the garage business and he made provision for the garage overheads and the policy of him chagrining client service charges at a certain percentage on top of the costs of car parts or materials replaced.  He admitted that he did not prepare the profit and loss accounts for his garage business.  He did not file tax return for his business.  He said he did not keep records of his business transactions.  At one time he said he had some documents but they were all in a mess.  These figures were his estimation based on his memory.  He did not produce a single document to support his evidence on pre-accident earnings.  He said even for clients who has not paid up for the services, he did not keep records of these accounts receivable and just rely on his memory.  Not a single document on income or expenditure of this garage business was disclosed.

60.  He was asked also in court why he had cancelled business registration for his garage business after he moved from Hung Shiu Kiu in May 2009.  He explained he wanted to take out business registration after the business at Lam San Wai went steady.  That was not his manner of doing things when he started his garage business Tai Tung at Hung Shiu Kiu.  This court does not find such explanation credible.  In fact he also fail to produce any document which supports his alleged garage business at Lam San Wai, not even a tenancy agreement.  He explained because the Lam San Wai premises is in fact agricultural land, in law, cannot be leased for garage purpose, he does not want to put his landlord friend in trouble by disclosing the tenancy document. What is there to explain why the plaintiff had failed also to produce documents such as utility charges receipt or receipt for purchasing car parts or monies to client to substantiate the existence of the garage business at time of accident.

61.  In any event, he had disclosed the address of Lam San Wai garage in his answer to interrogatories, the owner of the land is easily identifiable anyway.

62.  As for his post-accident monthly earnings, at time of Revised Statement of Damages, ie 13 December 2012, he said it was $8,000 per month.

63.  Two weeks before however, at time of his witness statement on 29 November 2012, he said it was roughly $9,000.

64.  In court, he was cross examined on this discrepancy and he could not really given an explanation.

65.  In answer to Interrogatories under affirmation dated 17 April 2013, the plaintiff had affirmed and said his then post-accident earnings was $7,000 per month.

66.  Plaintiff said he never filed any tax return as his income was low and there is no need to pay tax.  Suddenly, however, in year 2010/2011, plaintiff filed a tax return, stating that he earned a total sum of $56,000 from September 2010 to March 2011.  No break down was given. 

67.  Under cross examination, he admitted he did so as he wanted to have a record of earnings for the purpose of this litigation.  The correctness of figures in this tax return must be treated with caution.  There was again no documents supporting how the income figure therein was arrived at.

68.  In court, he said the period covered by the tax return should be 1 September 2010 to 31 March 2011 ie $56,000 income for 7 months giving a monthly income $8,000.  He did not explain why if he resumed work in early August 2010, as what he said in the Revised Statement of Damages, why he filed tax return commencing from 1 September 2010 and not early August 2010.  It does not make sense.

69.  In court when cross examined, the plaintiff changed his evidence again and said his income at time of assessment hearing is $13,000 to $14,000 per month.  This is far from what he said in his evidence in chief when he confirmed contents of the witness statements and the Revised Statement of Damages.

70.  I find plaintiff’s evidence or earnings unreliable.

71.  Plaintiff said that he suffered further loss during the period between the date of accident and early August 2010 ie time when he returned to work because he still needed to pay the rent, utilities for the garage at the new garage location in Lam San Wai, such as monthly rental of parking space for his van etc in the sum of around $6,000 a month, ie over $60,000 in total.  He failed to explain if that were so, why he failed to claim for such loss in this action?

72.  Although this court is shown the bank statements of allegedly the only three accounts of the plaintiff, each allegedly operated for specific purpose, eg CITIC account for garage clients to deposit their cheques, HSBC accounts for repayment of mortgage and rental payments and SCB accounts for rental income, when one study the table for total monthly deposits for these individual accounts and the aggregate monthly deposits for all three accounts, there only appear to be a drop in the total deposits as late as June 2010, ie 8 months after the accident.

73.  Accordingly to the plaintiff, his wife was a clerk earning $9,000 a month, they were receiving rent at $5,500 a month and after the accident, he also received TAVAS payment.  He explained these deposits are repayment of loan by family members, prepayment of clients for purchase of car parts, payment by client of outstanding car repair fee.  Again, he did not produce any document or tender documents to support this contention.

74.  What are these deposits?  Are they part of the plaintiff’s income?  I do not find this question answered.

75.  Further, why would he cancel the business registration when he could just amend the address of the garage from Hung Shiu Kiu to Lam San Wai if he was indeed operating the new garage immediately or shortly after he vacated from Hung Shui Kiu.  One possibility is that he had ceased operating the garage after he vacated from Hung Shiu Kiu and it remains so at time of accident.

76.  If this is true, this would also explain why plaintiff did not claim the alleged loss of Lam San Wai garage expenses during the period when it was closed during his sick leave.

77.  There is in my view, as suggested by the defence, a doubt as to whether the plaintiff operated a garage at time of accident.

78.  Coming to the extent and degree of pain and sufferings of the plaintiff, I find that the injuries suffered by the plaintiff was minor and that he exaggerated the extent and degree of his pain and sufferings.

79.  On what is before the court, the present complaints of the plaintiff is not supported by objective evidence but only his subjective complaints.

80.  In court, as observed by the defence, the plaintiff sat throughout the assessment hearing without exhibiting any discomfort or uneasiness.

81.  Plaintiff said in paragraph 6 of his witness statement that after the accident, he has sent to Pok Oi Hospital for physiotherapy as well as Tuen Mun Hospital for occupational therapy until March 2010.  He said those treatments were not helpful and his back pain later intensified.

82.  However if one reads the 12 May 2010 report by Pok Oi Hospital, it states “Upon discharge on 31 March 2010, he claimed that he had overall 70% improvement subjectively.”  In fact, the report also set out the detailed objective assessment of his neck and back which indicated only slight problem in rotation and extension of cervical spine and extension of lumbar spine.

CONCLUSION

PSLA

83.  Plaintiff claims the sum of $225,000 under this head in his Revised Statement of Damages and opening submissions, and now $150,000 in his final submission.  His counsel has cited numerous authorities.

84.  Both orthopaedic experts in the joint medical report opines that the injuries suffered by the plaintiff is soft tissue injury to neck and back and that the treatment he received was standard and appropriate, that he had reached maximal medical improvement at time of assessment.

85.  The gist of the joint medical report and the analysis and views of Dr Wong and Dr Chun has been set out earlier and I do not wish to repeat it here.

86.  In summary, despite the subjective complaints of the plaintiff as to pain in flexion and bilateral rotation, the same is not supported by any objective signs.

87.  The neck pain complained of, though said by Dr Wong to be consistent with persistent soft tissue inflammation of corresponding area, according to Dr Chun, there is no evidence of inflammation of the neck.  Dr Wong also agrees that is no upper limb neurology.  There is no muscle wasting of bilateral upper limb to suggest muscle disuse.

88.  Likewise, despite his complaint of pain on flexion and left lateral flexion of the back on extreme range, there was no muscle wasting of bilateral lower limb to suggest any muscle disuse or any sign of lower limb neurological deficit.  He back range of movement was also full.

89.  Even Dr Wong instructed by plaintiff’s solicitors stated that Waddell tests performed suggest symptom magnification and though the pain is genuine, according to Dr Wong, the same is exaggerated.

90.  The prognosis of the neck and back of the plaintiff is good.    It is said by the experts that he is expected to have reduced tolerance chiefly on heavy lifting and carrying.  I prefer the view by Mr Chun that the plaintiff can return to his pre-accident job as a car mechanic for heavy vehicles with mild discomfort.

91.  Having regard to the medical reports and notes, the joint medical report and after hearing the evidence of the plaintiff, I have no doubt that the conditions of the plaintiff is actually much better than what he said.

92.  In fact both parties agree that the plaintiff is totally independent in his activities of daily living including sports activities, which according to what the plaintiff said in court was absent before the accident.  In fact, he said he only took up these activities after the accident.

93.  Both parties had referred this court to numerous authorities including

(a) Ip Wan Fung v Cheung Wing Hong, DCPI 1671 of 2010, 6 June 2012, DC (Deputy Judge K H Hui) [2012] 4 HKLRD K5;

(b) Lee Yuk Lan v Royaltelle International Ltd, HCPI 187/1995 [1995] HKLRD J14;

(c) Tam Kwok Man v Kowloon Motor Bus Co (1933) Ltd (HCPI 755/2001, [2003] HKLRD (Yrbk) 417;

(d) Chan Chung Keung v Greenroll Ltd (unrep, HCPI 275/2005, [2005] HKCU 1812);

(e) Chan Ka Ming v Lee Wai Kong (unrep, DCPI 1478/2005, [2007] HKEC 62);

(f) Poon Yat Chiu v AES Scaffold Engineering Ltd (unrep, DCPI 223/2005, [2008] HKLRD B5);

(g) Cheng Liu Nei Su v Clare Environmental Services Ltd (unrep, DCPI 842/2008, [2009] HKEC 1681);

(h) Singh Satnam v Wong Chun Fung (HCPI 786/2009, 27 April 2011, CFI (Master Woolley) [2011] 1 HKLRD H5);

(i) Ng Lai Fan v Hong Kong Golf Club (unrep, HCPI 511/2005, [2007] HKEC 657);

(j) Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599;

(k) Chan Siu Youn v Ng Kam Man, HCPI 533/1999: $100,000;

(l) Wong Kin Hung v Chan Wai Ming, DCPI 1223/2006: $70,000;

(m) Yip Tung Fung and others v Pun Chi Leung, DCPI 2149/2006: P1 - $40,000; P2 - $40,000;

(n) Lai Ka Yin v Chan Yiu Kei, DCPI 453/2008: $50,000;

(o) Chan Kin Man v Cheuk Siu Tong, DCPI 1970/2008: $50,000.

94.  Having considered the authorities, and with the findings I made earlier, the appropriate award under this head is $120,000.

Loss of earnings

95.  In the final submission, plaintiff amended his claim for pre-trial loss of earnings.  Mr Chang counsel for the plaintiff submitted that the monthly earnings of the plaintiff in the initial days when he returned to work was between $7,000 and $9,000, the average of which is $8,000 and the current net monthly income was between $13,000 and $14,000, ie average $13,500 per month, the average monthly income for the plaintiff for the period preceding trial (after he resumed working) is therefore ($13,500 + $8,000)/2 = $10,250.

96.  His claim for pre-trial loss of earnings is therefore: -

(a) for period 19 October 2009 to early August 2010: - $15,000 x 9.5 months = $142,500;

(b) for period from early August 2010 till date of assessment hearing: - $10,250 x 41 months = $5,650 x 41 months = $231,650.

97.  This is an attempt by Mr Chang to deal with the many discrepancy in the evidence of the plaintiff as to post-accident earings.

98.  Mr Chang urges this court to accept the pre-accident earnings of the plaintiff at $15,000 per month despite the total lack of documentary evidence. He asked this court to consider the reasonable expenses for family of 3.  He said monthly earnings of wife of plaintiff is $9,000 and they had to pay mortgage of $3,200 per month, the total expenses of family of 3 will need an income from the plaintiff of around $15,000 per month.

99.  This court does not accept his submission.

100.  Whilst I find that he was a garage owner in May 2009 when he had a valid business registration.  Is that still the case at time of accident?  What is his monthly earnings at time of accident?

101.  This court is not assisted by the plaintiff.  He evidence is self contradictionary, shifting and unreliable.

102.  It is said that $15,000 per month is reasonable income comparable to labour occupation and taxi driver shown in Bundle B.

103.  But this is not his evidence or findings by the court that he is so working at time of accident.

104.  What was his post-accident monthly earnings?  So far, the plaintiff gave verions of $5,000 (reference to loss of earning capacity, $8,000 (Revised Statement of Damages), $7,000 (answer to interrogatories), $9,000 (witness statement), $13,000 to 14,000 (in cross examination).

105.  I am afraid despite utmost efforts by Mr Chang, these questions went unanswered, mainly due to the poor quality of plaintiff’s evidence, the lack of supporting documentary evidence.  Even the bank statements disclosed fail to support drop in income as a result of the accident.

106.  Assuming he was actually operating a garage at time of accident, there is nothing which satisfied this court as to how much he was earning after the accident.

107.  I am not satisfied that the plaintiff has proved any loss.  No award is made under this head.

Loss of earning capacity

108.  I agree with Mr Poon, counsel for the defendant that based on the evidence of the plaintiff that he had been self-employed for over 10 years prior to the accident, he is not entitled to any award under this head.

109.  In the cases of Moeliker v Reyrolle [1977] WLR 132, at 140A-C, it was said

“This head of damage generally only arises where a plaintiff, at the time of the trial, in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job.” (emphasis added)

110.  In another case,

“A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market.”

(Chan Wai-Tong & Anor v Li Ping-Sum [1985] HKLR 176 (PC))

Medical expenses

111.  The plaintiff here fails to show that there is any substantial or real risk that he will lose his employment and will suffer financial loss because of his disadvantage in the labour market.

112.  No award is made under this head.

113.  The claim of $5,090 for government hospital treatments expenses is not challenged.

114.  Plaintiff disputed the necessity of the chiropractor expenses and private doctors expenses in view that the experts say that the treatment received from government hospitals were standard and appropriate.

115.  This court takes the view in the absence of any evidence showing that the receipted medical expenses are unreasonably incurred or of unreasonable amount and are not related to the accident (save for the $280 consultation fee for upper respiratory tract infection) I will allow the additional receipted claim of $30,050.  I also agree with counsel for the plaintiff Mr Chang, that following the principle in Parry v Cleaver [1970] AC 1 per Lord Reid at p 14, the insurance reimbursement payment by medical insurance company to the plaintiff is not deductible in the present case.

116.  Mr Chang had also referred this court to paragraph 35-151 of McGregor on Damages, 18^th edition, where it is stated that

“where the claimant had taken out accident insurance, the moneys received by him under the insurance policy were not to be taken into account in assessing the damages for the injury in respect of which he had been paid the insurance moneys.”

117.  It is said that the argument in favour of non-deduction is that, even if in the result the plaintiff may be compensated beyond his loss, he has paid for the accident insurance with his own moneys, and the fruits of this thrift and foresight should in fairness enure to him and not to the defendant’s advantage.

Tonic food

118.  Plaintiff claims $6,000 under this head.  No document was produced in support of claim under this head when plaintiff has kept receipts for travelling and medical treatments.

119.  Sick leave granted is about 7 months.

120.  I will make an award of $2,000 here.

Travelling expenses

121.  Plaintiff claimed $7,876 under this head.  In the closing submission, he reduced his claim by 50%.  It is submitted that the taxi fare was all incurred before the expiry of the sick leave period and that with the pain that the plaintiff had, it would be reasonable, at least initially, for plaintiff to take taxi as opposed to other public transport.

122.  In cross-examination, plaintiff was asked why there was no taxi fare receipt for the first few months after the accident despite the number of treatments he had received during that period.  Plaintiff said he had a lot of friends and they drove him around for treatments.  When asked why would he suddenly take taxi from March 2010, he said his friends were all not available to drive him around.  This court finds this explanation difficult to accept.

123.  It is admitted by the plaintiff during cross examination that the 7 taxi trips taken all on 17 March 2010, were taken by the plaintiff, not for the purpose of seeking medical treatment, but possibly for visiting his friends who had helped him before.  In my view, if one is able to take 7 trips in a day for social purpose, one is not in such poor physical state as warranting total inability to work or taking of a taxi.  These travelling expenses should not be recoverable as damages here.

124.  Defendant says they are agreeable to reimburse $1,334.70, being taxi fees in connection with his government hospital medical treatments.

125.  It is, in my view, reasonable to allow the plaintiff reasonable expenses for travelling for purpose other than for medical treatment and taking into consideration the number of medical treatments he received and the length of sick leave, I allow $3,000 under this head.

Summary

PSLA	$120,000
Loss of income	Nil
Loss of earning capacity	Nil
Medical fees	$35,140
Tonic food	$2,000
Travelling expenses	$3,000
Total	$160,140

Interest

126.  The same is awarded at 2% per annum from date of writ till date of judgment and thereafter at judgment rate till payment for general damages and half judgment rate ie 4% per annum from date of accident till date of judgment and thereafter at judgment rate till date of payment for special damages.

Costs

127.  In view of the amount of damages assessed, I make an order nisi that the plaintiff shall pay the defendant costs of and incidental to the assessment of damages with certificate for counsel at District Court Scale, the same to be taxed if not agreed.