TONG SIU WAI v. POON WING FU

CACV 264/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2011

(ON APPEAL FROM HCPI NO 44 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Lam JA (giving the Reasons for Judgment of the Court):

1.  After hearing submissions, we dismissed the appeal with costs (with certificate for two counsel) for reasons to be given later. Here are our reasons.

2.  On 1 October 2008, the Plaintiff was injured in a traffic accident. Since this appeal only concerns two narrow issues on quantum, it is not necessary to go into the details of how the accident occurred. In short, the Defendant reversed his car at low speed and hit the Plaintiff. The Plaintiff fell and hit his head against the boot of his own car which was parked behind the Defendant’s car.  The Plaintiff suffered injuries at his lower back, left knee and head.

3.  Fortunately, the injuries were not serious and there was no fracture. The Plaintiff was hospitalized for 8 days. After his discharge, he received follow-up physiotherapy treatments over a period of 6 months. He was granted sick leave up to 8 April 2009.

4.  According to the medical report of 29 June 2009 prepared on behalf of the Prince of Wales Hospital, the condition of the Plaintiff when he was last seen at the out-patient clinic on 7 January 2009 was as follows,

“He complained of persistent low back pain and left knee pain and required a stick to walk. There was also persistent headache. … On examination, the range of movement of his back was remarkably limited by pain. There was diffuse tenderness over his lower back particularly the paraspinal region. There was generalized weakness over his left lower limb mainly due to back and knee pain. Power over his right side was full. Sensation and reflexes were normal.”

5.  A joint medical report dated 3 November 2009 was prepared by Dr Bong (instructed by the Plaintiff) and Dr Lam (instructed by the Defendant). The injuries of the Plaintiff was described by Dr Lam as follows (and there was no disagreement on the part of Dr Bong),

(a)  Soft tissue contusion injury to low back;

(b)  Contusion injury to left knee; and

(c)  Head injury.

6.  Examination by the doctors on 7 October 2009 (corroborated by X–ray of lumbar lordosis) showed paraspinal muscle spasm. The doctors accepted that there was genuine residual back pain and stiffness at the time of the examination. Dr Lam was of the view that the Plaintiff’s complaint on back stiffness was not consistent with the examination findings and symptom magnification was a possibility.

7.  Both doctors found mild left knee weakness. But range of motion was full and there was no ligament laxity.

8.  For the residual back pain and left knee pain, Dr Lam assessed 4% impairment of the whole person whilst Dr Bong assessed 5%.

9.  For head injuries, Dr Woo (as the single joint expert engaged by the parties) gave a report on 25 September 2010. Dr Woo examined the Plaintiff on 21 September 2010. Dr Woo’s comments were as follows,

(a)  The Plaintiff had at most a mild head injury in the accident. He had a momentary loss of consciousness. The duration of post-traumatic amnesia was negligible and there was no radiological evidence of any skull fracture or parenchymal brain damage;

(b)  The Plaintiff had residual headache and nonspecific dizziness, consistent with the diagnosis of a mild post-concussional syndrome. There was no cognitive, vestibular or physical deficit. The post-concussional syndrome account for at most a 1% impairment of the whole person.

10.  All the experts were of the view that the Plaintiff could return to his pre-accident occupation as an interior decoration worker.

11.  The assessment of damage was heard by Master Roy Yu in September 2011. In a judgment of 9 November 2011, the master gave judgment in the sum of $470,799 with a breakdown as follows,

(a)  PSLA	$300,000
(b)  Pre-trial loss of earning	$103,950
(c)  Post-trial loss of earning	nil
(d)  Loss of earning capacity	$50,000
(e)  Tonic food	$3,000
(f)  Car repair	$5,849
(g)  Medical and travelling	$8,000

12.  The master basically accepted the evidence of the experts in respect of the conditions of the Plaintiff. He rejected the Plaintiff’s evidence that he could not return to his pre-accident occupation and he could only work 3 or 4 days a month due to his pain. The master found that the Plaintiff was not a reliable witness.

13.  The Defendant appealed against the assessment in two respects,

(a) It is contented that the award of PSLA was too high. Mr Leung submitted that it should only be $150,000;

(b) It is contended that the award of $8,000 was unsupported by evidence and the award should only be $2,710.60 (which were supported by receipts).

14.  Before we examine the specific complaints of the Defendant, we would reiterate the approach adopted by this court in an appeal of this nature. The relevant principles are set out in the judgment of Yeung JA (as he then was) in Cheung Kai Chi v Chun Wo Contractors Ltd [2008] 1 HKLRD 102 at paras 69 to 73. For present purposes, it suffices to reiterate what His Lordship said at para 70,

“The Court of appeal would only interfere with the assessment of damages if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was so high or so small as to make it, in the judgment of the appellate court, an entirely erroneous estimate.”

15.  To the same effect, albeit in another context, is the recent judgment of the Court of Final Appeal in Blakeney-Williams v Cathay Pacific Airways FACV 13 of 2011, 26 September 2012, para 82, where Lord Neuberger NPJ said,

“…The second, and broader, question which the appellate court must address is whether the figure awarded by the trial judge was too high or too low. This does not involve the appellate court deciding what figure it would have awarded: it must limit itself to considering whether, in the light of all the facts and circumstances of the particular case, the trial judge went outside the generous range of general damages open to him. …”

16.  The main thrust of the submission of Mr Leung is that the master’s award is out of line with some previous authorities. Counsel complained that the master only referred to the authorities cited on behalf of the Plaintiff and did not refer to the authorities cited in support of a lower award. The cases he relied upon are,

(a) Ng Yu Fu v Wong Shek Ming HCPI 252 of 2004;

(b) Chan Kwok Chu v Morning Spring DCPI 355 of 2007;

(c) Ahmed Masood v Chung Kau Engineering DCPI 517 of 2003;

(d) Ko Kam Wai v Sze Hak Fung HCPI 292 of 2005.

(e) Ho Man Fong v Sime Darby Motor Services HCPI 1096 of 2003.

At the hearing, he also invited us to have regard to Gurung Durga Bahadur v Kam Tai Construction HCPI 304 of 2004 in which Master Levy awarded $340,000 for PSLA to a plaintiff who suffered injuries more serious than the Plaintiff here.

17.  On the other hand, Mr Lam (who appeared on behalf of the Plaintiff together with Ms Lee) referred us to two recent cases (which were not before the master as his award was made earlier) to support his contention that the award of the master for PSLA was not out-with the reasonable range,

(a) Zahid Anwar v Graceful Sound Limited HCPI 410 of 2008, 31 August 2012, Bharwaney J;

(b) Cheung Oi Yan Ruby v Wong Hoi Sum [2012] 4 HKLRD 334.

18.  In these two cases, the courts awarded $300,000 under PSLA to plaintiffs whose injuries were slightly more serious than the Plaintiff in our case.  Cheung Oi Yan Ruby was a decision of this court of 17 July 2012. The plaintiff in that case was injured in a traffic accident. The main complaint of her was low back pain and the issue in the appeal was whether the low back condition was caused by the accident.  The master found not but his decision was overturned on appeal. Thus the Court of Appeal had to make a fresh award for PSLA. The plaintiff was a car sales executive and 27 at the time of accident. MRI scan showed that there was moderate disc degeneration at L4/5 with a large central posterior annular tear. There was a small central to left para-central disc protrusion. The opinion of the expert was that the back injury carried 5% whole person impairment.

19.  In Zahid Anwar, Bharwaney J awarded $300,000 PSLA to a plaintiff (29 years old at the time of accident) who fell from a height of 9 feet in the course of his work as a container slinger. That plaintiff sustained injury to neck, left shoulder, back, right wrist and left hip. There was no fracture. He suffered from symptoms of post-concussion syndrome but he was no longer troubled by those by the time of trial. The only residual disabilities suffered by him, as found by the judge, was pain in the back. It was not chronic but it would occur upon excessive exertions and movements. Such disabilities prevented him from carrying out heavy manual work. The experts held different views on impairment between 3% and 5%.

20.  Amongst the cases cited by Mr Leung, apart from Ko Kam Wai and Ho Man Fong, the injuries suffered in the other cases were less serious than those suffered by the Plaintiff in the present case. In Ko Kam Wai, A Cheung J awarded $200,000 to a plaintiff (39 years old at the time of accident) who suffered injuries at work when a pile of plasterboards toppled over him. He had contusion at his back and left knee. There was no fracture. MRI revealed left knee medial meniscal injury. The judge found that the condition of the plaintiff was less serious than what he would have the court to believe. That was a judgment in 2006.

21.  In Ho Man Fong, Suffiad J awarded $250,000 in 2005 to a plaintiff who suffered injuries more serious than the Plaintiff in our case. He had a frozen shoulder and was diagnosed to have depression. The injuries caused by the accident had aggravated the pre-condition of the plaintiff’s ankylosing spondylitis. He was granted 36 months sick leave.

22.  On the whole, bearing in mind the role of this court in an appeal of this nature, we are of the view that even though the award of the master is a generous one, it does not go beyond the scope of reasonable range. We are dealing with a plaintiff who was relatively young at the time of the accident (24 years old at the time of accident). Though the condition of the Plaintiff is less serious than Ho Man Fong (a decision in 2005) and the two recent cases referred above, the downward adjustment would not be so substantial that we could say the award is entirely erroneous.

23.  Turning to the challenge to the award on travelling expenses, Mr Leung’s submission is that the award should be confined to those supported by receipts. In this connection, we agree with the submission of Mr Lam that there is evidence before the master to support his finding that not all receipts could be produced. It was open to the master to award travelling expenses as he did.

24.  For these reasons, the appeal was dismissed.