OR CHUN KWONG v. FU SAU LUN, JASON AND OTHERS

HCPI 384/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 384 OF 2005

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ASSESSMENT OF DAMAGES

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Background

1. The Plaintiff was a self-employed night shift driver of public light bus.  On 9 June 2002, at about 3:05 a.m., when the Plaintiff drove a public light bus (the “PLB”) along Castle Peak Road near Lido Beach, the PLB was hit by a vehicle (the “Volvo”) driven by the 1st Defendant.  Worse still, the 2nd Defendant riding on another vehicle (the “BMW”) further rammed into the Volvo which then caused a second collision upon the PLB.

2. After the collisions, the Plaintiff was sent to Yan Chai Hospital.  The medical report dated 25 November 2003 states that:

“The abovenamed patient [The Plaintiff] was admitted to the Department of Orthopaedics & Traumatology on 9/6/2002.

The diagnosis was right shoulder acromio-clavicular joint subluxation.

Physiotherapy was given.

The patient was discharged on 12/6/2002.

……”

3. The Plaintiff thereafter went to St. Paul’s Hospital until the end of July 2002, during which he underwent 3 operations to re-align his dislocated right shoulder acromio-clavicular joint.

4. The 1st Defendant was convicted of careless driving on 17 December 2002 and fined $2,000. The 2nd Defendant was acquitted.  Proceedings herein were commenced on 19 April 2005 and by a consent order dated 6 May 2005, judgment on liability was entered for the Plaintiff against both Defendants for damages to be assessed.  Costs of the action was reserved.

5. The assessment of damages came before me on 13 and 14 November 2006.  Mr. Albert Yau of Counsel acted for the Plaintiff and Mr. Kumar Ramanathan of Counsel represented the 1st and 2nd Defendants.  Having heard from both learned Counsel, I reserved my decision to be handed down.  I now do so.

The disputes

6. As a matter of evidence, the parties disputed on two questions.  Mr. Yau identified them as:

(1) Has the Plaintiff acted reasonably in mitigating his loss after the accident?

(2) How much did the Plaintiff earn at the time of the accident?

7. After consideration, on balance of probabilities, although that the surveillance reports and videotapes produced by the 1st and 2nd Defendants do not damage the Plaintiff’s case, Mr. Yau still fails me on the first question.  My reasons appear below.

(a) The medical evidence before this Court can hardly support the Plaintiff’s case that he could not resume his pre-injury job.

(i) The Plaintiff’s expert Dr. Chiang in his medical report of 9 June 2005 concluded that:

“……

He should be able to work in the pre-injury job as a public light bus driver.  There might be a mild reduction in his capacity with possibly the presence of mild discomfort in the right shoulder after unduly prolonged driving activities, which, because of the likely mild nature, are not expected to be present frequently.

……”

(ii) The Defendant’s expert Dr. Cheng said that:

“On a practical consideration, these minor physical impairments are unlikely to affect or in any significant way.  He is fully capable to resume his work as a driver.  He is equally capable to change job if he so wishes.  There is no need for job restriction or need for change of job on medical ground.  In fact, he has resumed work.”

(paragraph 8 of Dr. Cheng’s report dated 3 June 2005)

(iii)     Both doctors in their supplementary joint medical report of 24 February 2006 agreed that:

“7)      …… Mr. Or should have a satisfactory capacity in returning to the pre-injury job as a public light bus driver……”

(b) The Plaintiff did resume his pre-injury job, albeit, part-time only.  For more than 2 years, from 15 December 2002 to March 2005, he worked as a part-time relief PLB driver for 3 days a week on average.  Thereafter, the Plaintiff changed to work as a cross-border driver.

(c) Explanation was offered.  Mr. Yau summarized them as:

“4. ……Second, the Plaintiff has explained that he would suffer from shoulder pain if his right shoulder was strapped by the seatbelt for prolonged period and he has demonstrated in court that he had to lean forward to reach for the coin box so as to give change to the passengers from time to time.  The tension which the seatbelt may exert on the shoulder when he leaned forward would increase in those instances.  (One would recall that the work hours stared from 1pm to 3am in the following morning – 14 hours.)  Third, the Plaintiff said that he was under psychological pressure when driving PLB again after the accident in which he had a head-on collision.  He was “adverse to driving along Tsuen Wan to Tuen Mun of Castle Peak Road or two-way road with single way on each carriageway” – a fact which was mentioned as early as when the action was commenced in April 2005 …… He further explained in his evidence yesterday that he was concerned with the safety of the passengers on board and he considered that the body of a PLB was a bit too fragile (太單薄).  Fourth, by acting as a relief PLB driver he could on one hand take days off in between work days apparently for relief of discomfort and work stress and on the other hand he would not be under intense economic need to earn sufficiently to pay the rental PLB in the days when he was not well enough to drive.  (Before the accident he was under the primary obligation to the PLB owner to pay the rental even though in the days he was not working.)  Fifth, his subsequent employment as a cross-border driver demands shorter period of driving and during most of that period of driving he can choose not to wear the seatbelt.  Further, that job does not subject him to the kind of psychological pressure he would have been subject to if he were a full-time PLB driver.  He is only required to carry cargo rather than human passengers and chances are that if there were head-on collision the sturdy body of his 16-tonne lorry would give him better protection.”

(Mr. Yau’s Closing Submissions Part one)

(d) Nonetheless, with respect, I do not accept the Plaintiff’s explanation.  As pointed out by Mr. Ramanathan,

“ 21. In his evidence the Plaintiff attempted to project two reasons for not working to full capacity as PLB driver – pain in the shoulder and “psychological pressure”.  On the pain issue, the medical evidence clearly suggests that any “mild discomfort would not be expected to be present frequently”. {Dr. Chiang 98 para 10}.  Common sense dictates that wearing the soft material of the seat belt that usually goes loosely over the shoulders can hardly be said to constitute an obstacle for a person to return to driving a PLB.

22. As regards the so-called psychological reason, this again finds no reflection in nay of the medical reports.  The Plaintiff has only raised it for the first time in the course of his evidence.  It is submitted that this reason simply does not stand up to close scrutiny as reflected by the very actions of the Plaintiff in apparently working part-time as a PLB driver for a period of 27 months between December 2002 – March 2005.  If he genuinely had psychological problems in driving a PLB, this is not something that he would have continued doing for that period of time.

23. It is a little difficult to understand why the Plaintiff claims he drove only part-time when he resumed working as a PLB driver.  He does not offer any convincing explanation for this in his statement {70 para 18}.  His assertion that wearing the seat belt and having to stretch his arm caused him discomfort is one that Court may find a little difficult to accept in the light of the clear medical evidence.

24. ……

25. In this regard, it is submitted that the following answers of the Plaintiff in cross-examination are revealing:

Q: I suggest that you were able if you so chose, to earn as much as you could have before the accident, if you chose to work full-time as a PLB driver?

A: Agree, but if I have the choice I would choose another job.

Q: Even if it means less income?

A: Yes, at least do not suffer further pain or psychological pressure.

Q: I suggest to you on medical evidence, neither of those two grounds should have affected you in your choice of jobs?

A: Agree”

(Closing Submission of Mr. Ramanathan)

9. On the other hand, as to the second question, on balance, I agree to accept the Plaintiff’s case that his monthly income was $22,100 at the time of the accident.

(a)  The Plaintiff deposed that he earned on average $850 a day.  On a 26-days-per-month basis, his monthly salary was about $22,100.

(b) Mr. Ramanathan attempted to attack it by 2 means: lack of documentation and inconsistency with the figure suggested by the trade union.

(c) I must agree that lack of documents has to be disadvantageous but not necessarily fatal.  The crux really boils down to a matter of evidence to be weighed by the Court.

(d) The Defendant wrote to the trade union who replied that the average income was about $14,820 at the material times.  However, it must be viewed with caution:

(i) No one appeared for the trade union so that the calculations could be elaborated and/or tested.

(ii)        The calculations of the trade union did not take into account of the income received by passengers refilled during the trips while it is the Plaintiff’s case that, 60% of the time, seats could be refilled during each journey.

(iii)       The trade union talked about “average” driver, but I accept that the Plaintiff did earn more than that.  By the time when he was injured, he had been in the field for 8 years.  Nonetheless, he was still 28 then.  Evidence further showed that he was a bit hardworking: he cleaned the PLB himself in order to earn $150 more a month.

10. With these rulings in mind, I now move to the assessment.

PSLA

11. For damages under PSLA, Mr. Yau asked for an award in the region of $280,000 while Mr. Ramanathan suggested $150,000.  Both learned Counsel have submitted a number of authorities to assist me in arriving at the proper figure.  To cut short the argument, I agree with Mr. Yau that Liu Jianhui v Mayho Graham HCPI 350/1999, 24 January 1996 (unreported) and Tse Kwok Keung v Swedish Motors Limited and another HCPI 759/1999, 26 July 2000 (unreported) are the best comparables although the victims in both cases suffered more serious injury than the Plaintiff herein.  Having taken into account of the factor of inflation, I am of the view that $200,000 is appropriate in the circumstances.

Loss of earning

12. Both Dr. Chiang and Dr. Cheng agreed that it was reasonable for the Plaintiff to take sick leave for 6 months.  Hence, given my above ruling that the Plaintiff earned $22,100 per month at the material times and he could have resumed the pre-injury job, the Plaintiff therefore suffer a loss of earning for $132,600, but no more.

Loss of earning capacity

13. In my view, “Smith v Manchester awards” or loss of earning capacity is the appropriate remedy for the Plaintiff to compensate his disadvantage in the labour market in relation to the 3 to 4% permanent impairment of the whole person estimated by both doctors.  In this respect, I agree with the observation of Mr. Ramanathan that a period of 3.5 months should be sufficient.  By applying my ruling of monthly salary, it gives a sum of $77,350.

Special damages

14. Save that the fee for medical report is to be recovered by way of costs, the sum of $204 charges of Yan Chai Hospital is allowed.

15. There is no dispute about the 3 operations done in St. Paul’s Hospital and both doctors agreed that the Plaintiff should have stayed in it for 4 weeks (from 12 June 2002 to 10 July 2002).  On that basis, the following hospital expenses are allowed:

		$	$
(a)	Invoice 000114531 (12/6/02-18/6/02)		16,627
(b)	Invoice 000115189 (18/6/02-24/6/02)		3,457
(c)	Invoice 000116073 (24/6/02-2/7/02)		6,464
(d)	Invoice 000116725 (2/7/02-8/7/02)		3,488
(e)	Invoice 000117526 (8/7/02-10/7/02 only)		1,566
(f)	Invoice 000117658 Anaest. fee	4,000
	Dr. W.L. Cheung	21,000
	Dr. C.L. Cheng	18,000	43,000
(g)	Invoice 000119374 Anaest. fee	2,000
	Dr. C.L. Cheng	8,500
	Dr. W.L. Cheung	8,400	18,900
			93,502

16. The fee of Dr. Cheung Wai Lam is agreed at $1,200.

17. The parties disputed to the compensation paid to the PLB owner in the sum of $15,000.  Upon consideration, I consider that the Plaintiff has failed to come up with his case on balance.

(a) It is the Plaintiff’s pleaded case that the compensation was “paid”.  However, no receipt or other documentary evidence has been produced.

(b) The Plaintiff deposed that, under cross-examination, he had no idea if payment was made.

(c) I agree that clause 9 of the subject Car Rental Agreement states that:

“During the rental period, any event such as traffic accident or otherwise, causing the submission of a traffic incident report to the insurer, Party B [the Plaintiff] shall pay a compensation in the sum of HK$15,000.00 being the deductible to Party A [Agent for Car Owner].  Also, in the event that the insurer shall ask for third party compensation due to the traffic accident or otherwise, Parties A and B agree to pay one-half of the same each and the maximum for Party B shall not be more than HK$10,000.00.”

However, there is simply no or insufficient evidence to satisfy that the matter was reported to the insurance company.  Hence, even if I will allow the Plaintiff’s case to be amended to compensation “payable” to PLB owner, it does not advance Mr. Yau’s case.

Conclusion

18. In conclusion, I award the following damages to be Plaintiff:

		$
(a)	PSLA	200,000
(b)	Loss of earnings	132,600
(c)	Loss of earning capacity	77,350
(d)	Special damages $(204 + 93,502 + 1,200)	94,906
		504,856

19. For general damages, interest will be calculated at the rate of 2% p.a. from the date of writ herein to the date hereof.  As to special damages, there will be interest at half of the judgment rate from the date of the accident to the date hereof.

Costs

20. I do not have the benefit of hearing argument from both learned Counsel on the question of costs.  Nonetheless, there appears to be no reason why costs should not follow the event.  Further, having awarded damages to the Plaintiff within the jurisdiction of the District Court, I believe that the costs incurred should only assessed at the corresponding scale.  In the circumstances, there will be an order nisi that the Defendants shall pay costs of the Plaintiff in this action as well as the assessment, including all costs reserved and certificate for counsel on 13/14 November 2006, on the District Court scale, on party-and-party basis, to be taxed if not agreed.