YEUNG SHUI MING v. GONG KONG SANG AND ANOTHER

HCPI 290/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 290 OF 2005

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J U D G M E N T

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Introduction

1.  This is an assessment of damages arising out of the plaintiff’s injuries caused by a traffic accident which took place in March 2002.

2.  The total amount claimed is about $4 million.  The defence considers that a grossly inflated claim and contends that the plaintiff has exaggerated his injuries.

The Accident

3.  The accident took place at about 4 pm on 26 March 2002 at a road junction inside the Kwai Chung container depot.  Both the plaintiff and the 1^st defendant (“D1”) were driving their own container trucks at the time.  Visibility was good and the road surface was dry.  According to the plaintiff’s police statement, his truck was travelling at about 30 kph.  According to D1’s police statement, his truck was travelling at 10 kph.

4.  The plaintiff’s truck was hit on the right-hand-side by the truck driven by D1.

5.  Because the parties disagree as to the seriousness of the collision, a few words need to be spent on what damage has been caused to the plaintiff’s truck.

6.  The photographs produced for the assessment hearing show the extent of the damage to the plaintiff’s truck.  The right door (that is, the driver’s door) was located slightly to the front of, and above, the right front wheel.  No noticeable damage has been caused to the right front wheel.  The only observable damage to the exterior of the truck compartment was the dent located at:-

(a) the portion of the right door just above the exterior door handle;

(b) the portion of the exterior body panel just behind the right door and above the front wheel.

Purely for the purpose of giving a clearer description, the area of the dent is estimated to measure about 40 cm wide by 60 cm high by 15 cm deep.

The Pre-litigation Medical Records

7.  The record from the Accident and Emergency Department of Princess Margaret Hospital (which treated the plaintiff on the date of the accident) states:-

“… injuries to head, right shoulder, neck abrasions over forehead and left maxilla; hematoma over left occiput; tenderness over right shoulder.

…

He was treated and discharged.

He was granted 6 day’s sick leave. …

Permanent disability is unlikely to be expected …”.

A few days later (31 March 2002), the plaintiff’s “chief complaint” (using the wording of the medical report) to the doctor was pain and tenderness of the right shoulder and neck and right lower rib cage.  No permanent disability was expected by the doctor.

8.  About 2 weeks later (on 12 April 2002), doctor of the Jockey Club Health Centre reported:-

“The patient still suffers from right sided neck and shoulder pain and …

The range of movement of neck is decreased, … due to pain …”.

9.  Complaints of dizziness (in addition to neck and right shoulder pain) appeared from around mid-April 2002 (about 3 weeks post-accident) and of insomnia since the end of May 2002.  The complaint of dizziness continued despite normal physical findings by doctors of the Jockey Club Health Centre.

10.  Those doctors suspected post-concussion syndrome and, in June 2002, referred the plaintiff to the Neurosurgery Department of Tuen Mun Hospital for assessment (see reports of the Jockey Club Health Clinic written in July and August 2005).

11.  The report from Tuen Mun Hospital in October 2004 recorded that the plaintiff started to complain of unstable mood and suicidal idea in July 2002.

12.  An examination of the consultation notes of the Neurosurgery Department of Tuen Mun Hospital from July 2002 to November 2003 shows that the plaintiff constantly complained of dizziness or heavy-headedness; but he reported no headache except on one or two occasions.  Most of the consultation notes referred to post-concussion syndrome.

13.  The consultation notes from January, April, July and October 2004 and January, April and July 2005 show basically the same pattern.

14.  The plaintiff also started to consult the Psychiatry Department of Tuen Mun Hospital from July 2002.  According to the reports in the hearing bundles, he was last seen there in October 2004.  5 reports were written by the doctors there.  They concluded that the plaintiff was suffering from adjustment disorder with mixed anxiety and depressive symptoms.  But they could not confirm if it might or might not be related to the accident due to the limited assessment of the plaintiff as an out-patient and his reluctance to be assessed during the brief period when hospitalized.

15.  It should be noted the above conclusion of the Psychiatric Department appears to differ from that of the Neurosurgery Department in that some doctors of the latter apparently recorded the plaintiff’s case as one of post-concussion syndrome.

Post-litigation Medical Opinions

16.  Leave to adduce medical expert evidence has been given, and pursuant to that leave, expert reports were adduced by the parties.  Those reports were compiled by the parties’ respective:-

(1) orthopaedics and traumatology specialist;

(2) psychiatrist;

(3) neurology specialist.

17.  It is only natural to expect the opinions of the two camps of expert to differ, and they do.  The plaintiff’s camp opined that the plaintiff suffers from post-concussion syndrome while the defence camp opined that he has largely recovered leaving little or no permanent disability.

18.  Despite the difference in opinion, the experts agree in effect no physiological defect or anomaly could be detected.

19.  The plaintiff’s neurology specialist recommended the plaintiff should undergo magnetic resonance imaging (MRI) scan of his brain and magnetic resonance angiography (MRA) scan of his cervical blood vessels.  Those have in fact been undergone but the results were normal.

The Surveillance Video

20.  The defence has engaged private detectives to place the plaintiff under surveillance.  The surveillance video played during the hearing concerned some of the plaintiff’s daily activities on 5 July 2005, 12 August 2005, 24 September 2005, 4 November 2005 and 7 November 2005.

21.  In order to facilitate discussion between the court and counsel during final submissions, parts of the video have been captured as still photographs (exhibits “P1” to “P5c”).

22.  “P1” was captured from the video taken in the afternoon of 5 July 2005 (around 4:15 pm).  This shows the plaintiff walking side by side with a lady (the lady was on his right side).  Some of the pictures show him holding hands with the lady (the plaintiff’s right hand was holding her left).  Other pictures in this series show his right arm wrapping around the lady’s waist while her left arm wrapped around the plaintiff’s shoulder.

23.  “P2” was captured from the video taken in the morning of 12 August 2005.  The plaintiff was wondering in an open space or garden.  Some of the pictures show his right arm placed on his right waist whereas in other pictures he held up his right arm as if brushing his hair or touching his right shoulder or back.

24.  “P3” was captured from the video taken in the afternoon of 24 September 2005.  In some pictures, the plaintiff was squatting at the entrance of a building.  He turned his head around to the right from time to time.  In other pictures, he was standing at the said entrance.  His right arm reached the left side of his head across his chin (as if he was holding a mobile phone).  Finally, the last series of pictures shows him standing at the said entrance but, using his right arm as a means of support (reached out horizontally), he was leaning against the wall of the building.

25.  “P5a” and “P5b” were captured from the video taken in the morning of 7 November 2005.  This series shows the plaintiff having morning tea outside a food stall with a male and female.  He was reading a newspaper and chatting with his companions.  At various stages, he was either gesturing with his right hand (such as pointing at the newspaper), or holding an object with it (such as a small piece of stick, or his eyeglasses).

26.  In a picture belonging to the “P5c” series, the plaintiff was holding the cigarette with his right hand.

The Plaintiff’s Testimony

27.  The plaintiff was the only witness who testified during the hearing.  The defence case being essentially that he is not a truthful and/or reliable witness, reliance is placed by the defence on cross-examination and the contents of the said surveillance video in an attempt to demonstrate the plaintiff’s claim is feigned or exaggerated.

Conclusion on the Plaintiff’s Condition

28.  I find that the plaintiff is not a truthful or reliable witness:-

(a) he often changed his testimony;

(b)    parts of his testimony are contradicted by the records;

(c) parts of his testimony are inherently implausible.

Examples for the above will be given later.  It is also relevant to consider the plaintiff’s general appearance in the surveillance video compared to how he appeared to the medical experts and when he testified.

29.  When the plaintiff was seen by his own experts, he was described as:-

“[He] used to be right handed … and he alleged that he mainly use left hand after the subject accident. …” (plaintiff’s orthopaedics and traumatology specialist);

“… He has become socially isolated.  He avoids seeing his family members and his friends. …

Usually he wakes up late in the morning …  He does not read the newspaper because he has poor memory. …

He was dull and showed little spontaneity.  He had minimal eye contact.  When he was asked a question, he gave a perfunctory and vague answer. …

His mood was on the low side. …” (plaintiff’s psychiatrist);

“He used to read the newspaper regularly but does not do it any more because he is unable to register anything. …

He has become depressed since the accident. …

He noticed that sometimes when he turned his head suddenly, he would experience a sudden ‘electric’ sensation going up to the brain …

[He] was unable to name the day of the week.  He knew he was in Hong Kong and in a hospital but did not know which floor he was on …” (plaintiff’s neurology specialist).

30.  When the plaintiff testified, he said he still suffers from pain and numbness of the neck and right shoulder.  He also has nightmares and insomnia at night and persistent headache and dizziness during the day.  He even vomited because of travel-sickness.  Finally, his sex life is also adversely affected.

31.  The plaintiff’s appearance during the court hearing is largely similar to that quoted above.  He appeared sad and depressed, and avoided using his right hand.  In fact, his right arm was resting on the desk most of time when he sat in the witness box.  He handled the trial bundles almost exclusively with his left hand.

32.  The video taken on 7 November 2007 was taken around 7:40 am.  The plaintiff was reading the newspaper intently as normal people do.  He was doing a lot (if not most) of the talking to his male and female companions at the food stall.  He was also able to use the contents of the newspaper as a conversation topic on that occasion.  A portion of the video shows him pointing at the newspaper while talking to his male companion.  The plaintiff accepted in cross-examination going to the food stall to read newspaper and chat with his friend is his daily habit.

33.  In none of the videos did he look sad or depressed.  Also, in parts of the videos, he used his right hand (or his right arm adopted such positions) in such ways as being inconsistent with someone who effectively has become left-handed because of pain at the neck and right shoulder.

34.  The plaintiff tries to explain away his right arm movements in the surveillance video by claiming he was in fact resting his right arm in those parts of the video summarized in paras. 21 to 26 and 33 above.  I conclude that his claim is untrue.

35.  The defendants’ psychiatrist and neurology specialist also concluded that the plaintiff’s behaviour in the surveillance video appeared different from when he was medically assessed.

36.  The plaintiff’s assertion that he felt dizzy and has difficulty travelling is contradicted by his movement records between Hong Kong and the Mainland shortly after the accident.  While it is understandable he might want to go home to see his wife and child in the Mainland at the time, his repeated trips back to Hong Kong (on average about every other day for a few months) is hard to explain.  Various reasons were given by him during cross-examination but I do not find them convincing.

37.  Despite the plaintiff’s claim he was eager to return to work, he refused the services of the occupational therapy department on the ground of travelling difficulties and financial problem.  He also defaulted his classes at the Tuen Mun Vocational Training Council.

38.  The plaintiff asserted in his testimony, as he did when examined by his medical experts, that he lost consciousness immediately after the accident.  This, however, never appeared in any of the initial medical records.  In fact, the complaint of dizziness did not surface until about 3 weeks after the accident.  The complaint of insomnia appeared even later (since the end of May 2002); unstable mood and suicidal idea first appeared in July 2002.

39.  In this connection, I accept the following statements in the report of the defendants’ psychiatrist to be valid:-

“The symptoms of postconcussional disorder like headache, dizziness, bad memory, difficulty in attention are usually at its worst just after head trauma” (para. 29.2 thereof);

“He was first assessed by psychiatrist on 18/7/2002, around 4 months after the accident. … Inconsistent findings were noted by the attending psychiatrist. … It is inconsistent that he did not have symptoms of postconcussional disorder initially and then developed the symptoms some time later” (para. 29.6 thereof).

In accepting the above, I have already taken into account the plaintiff’s criticism of the error made by the defendants’ psychiatrist in relation to when the plaintiff first raised the complaint of dizziness (the psychiatrist stated it to be mid-May 2002 when the medical records show it to be mid-April 2002 (see para. 9 above)).

40.  The opinion of the plaintiff’s medical experts was based almost entirely on the accuracy of the symptoms given by the plaintiff.  Once the plaintiff’s credibility and/or reliability is in doubt, the expert opinion is also in doubt.

41.  Only the plaintiff’s neurology specialist has said in his report he had watched the surveillance.  He observed:-

“It basically showed that [the plaintiff] had good mobility and was able to walk around the city on his own.  His gait looked quite normal and there was no indication that his walking was unsteady …”.

Then he asserted:-

“The material in the surveillance [video] … [is] in no way contradictory to any of the complaints or symptoms which were recorded in my initial report …”.

There is a clear contradiction as regards the ability to read newspaper, the use of the right hand and the plaintiff’s depressive mood.  Those are not mentioned.  I do not accept the assertion of no contradiction.

42.  By reason of the above, I agree with the defence that the plaintiff has exaggerated his injuries.

(a) Neck and Right Shoulder Pain

43.  I accept there must have been some pain at the head, neck and right shoulder regions immediately after the accident.  But I cannot be satisfied that the pain sustained for any period long afterwards (see also para. 49 below).

(b) Dizziness, Insomnia and The Like

44.  I am not satisfied that the plaintiff suffers from any of these ailments (at the very least, not long after the accident (see also para. 49 below)).

(c) Post-concussion Syndrome

45.  I agree with the conclusion of the defence medical experts (especially the psychiatrist) that post-concussion syndrome has not been established.

46.  Although the defendants’ neurology specialist mentioned post-concussion syndrome in his report, he was skeptical of the same taking into account the plaintiff’s behaviour shown by the surveillance video, stating it:-

“… raised the suspicion that his deficits were either feigned or exaggerated.  They cast doubt on the genuineness and integrity of his complaints”.

Pain and Suffering and Loss of Amenities

47.  By reason of the matters set out above, I consider the awards referred to by the defence, namely:-

(1) Yip Tung Fung and Others v. Pun Chi Leung, DCPI 2149/2006 (23 November 2007);

(2) Chan Chun Wa v. Wong Chiu Yuen Andrew, DCPI 235/2007 (22 November 2007);

(3) Ma Chung Lung v. Yao Poon Tong, HCPI 719/2006 (16 November 2007);

(4) Wong Yuk Foon v. Nice Property Management Ltd., DCPI 1025/2006 (8 November 2007);

(5) Lai Wai Tan Peter v. Secretary for Justice acting for Hong Kong Police, DCPI 1469/2006 (9 October 2007);

(6) Tang Wai Tak v. Chiu Hing Construction & Transportation Co. Ltd. and Another, HCPI 188/2006 (23 August 2007);

(7) Chan Ha v. Lee Hon Ming and Another, HCPI 414/2001 (7 July 2007),

to be the more appropriate “comparables” than those referred to by the plaintiff.

48.  In short, I find that the proper award under this head should be $100,000.

Pre-Hearing Loss of Earnings

49.  I accept the conclusion of the defendants’ orthopaedics and traumatology specialist that the proper sick leave period is about 6 months and that further medical treatment is unnecessary.  The expert also assessed the total orthopaedic permanent impairment to be 2% of the whole person.

50.  The loss of earnings is therefore $119,736 ($19,956 x 6).

Loss of Mandatory Provident Fund

51.  The loss of mandatory provident fund should thus be $5,986.80 ($119,736 x 5%).

Loss of Earning Capacity

52.  Because the injuries should not have any effect on the plaintiff’s future employment, no award is given under this head.

Special Damages

(a) Treatment in Hong Kong

53.  The plaintiff’s claim (consisting of medical expenses, travelling expenses and tonic food) totals $14,863.  Of that sum, $10,201 is accepted by the defendants.

54.  The difference comes from (a) the amount of medical expenses (difference of $2,662) and (b) tonic food (difference of $2,000).

55.  The primary documents in support of the medical expenses claim have been included in the trial bundles.  They are however not easily comprehensible.  My examination shows a total of $5,271 being supported by these documents.

56.  I agree with the defendants regarding the amount to be awarded for tonic food.

57.  Hence, the total amount awarded under this head is $11,991 ($5,271 + 3,720 + 3,000).

(b) Treatment in the Mainland

58.  A total claim of RMB269,634 has been put forth.

59.  The plaintiff’s testimony regarding this aspect appears contrived and is unsatisfactory.  For instance, he testified all payments were taken care of by his sister in the Mainland.  But he cannot tell the source of her payment (contending he never asked her), or the precise reason for some of the treatments stated in the receipts.  Generally, his account of the treatment is lacking in details.  The records produced in support are not satisfactory either.  They also lack details, are overly brief in narratives and not even purportedly signed.

60.  For these reasons, I am not satisfied the plaintiff has established this part of his claim.  Likewise, the plaintiff’s claim for travelling expenses in the Mainland for this purpose is also not established.

(c) Future Treatment

61.  On the ground that I am not satisfied the plaintiff still requires medical treatment, this part of the claim is rejected.

(d) Employees’ Compensation Payments

62.  The plaintiff is willing to give credit for $433,715.62 being the amount of employees’ compensation he received earlier.

Summary of Award

63.  In summary, the awards are:-

(a)	PSLA	$100,000
(b)	pre-trial loss of earnings	$119,736
(c)	loss of MPF	$5,986.80
(d)	special damages	$11,991
Total		$237,713.80

64.  $433,715.62 should be deduced from the above award.

Interest

65.  The parties agree interest is payable as follows:-

(1) on general damages at 2% per annum from the date of writ to the date of assessment;

(2) on pre-trial loss of earnings and special damages at half judgment rate from the date of accident to the date of assessment.

Other Matters

66.  The parties were specifically invited to address on the evidential status of the pre-litigation medical records (that is, those in the paragraphs under the heading “The Pre-litigation Medical Records”).

67.  They agree those records can be admitted for establishing the treatment undergone by the plaintiff, and for showing the plaintiff’s complaints or symptoms.

68.  But they disagree as to whether the opinions express by the government doctors can be taken into consideration when assessing the expert opinions given by the medical experts for the purpose of this assessment.  The plaintiff contends they can be while the defence contends otherwise.

69.  In the absence of detailed analysis being provided by the parties, I can only conclude at present that, at least when those records have been included in the agreed bundles, there appears no valid reason why they cannot be taken into consideration.

70.  For the avoidance of doubt, I have in fact taken them into account when determining this assessment.

Costs Order

71.  It is possible the parties may wish to argue the proper costs order for the assessment.  Accordingly, no costs order will be made at present.