CHAN YIU TUNG v. CHAN WAI HO

HCPI 337/2017

[2019] HKCFI 497

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 337 OF 2017

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J U D G M E N T

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1.  The Plaintiff was injured as a result of an accident on 11 December 2014.  He and the Defendant were cycling and the Defendant knocked him down, causing multiple injuries to the Plaintiff. 

2.  Interlocutory Judgment was entered against the Defendant on 14 July 2017. 

3.  The Plaintiff, born on 27 October 1993, is now 25 years of age. 

Injuries and Treatment

4.  After the accident the Plaintiff was sent to the A&E Department of Alice Ho Mui Ling Nethersole Hospital. He was conscious and in satisfactory general condition.  Physical examination showed abrasion and swelling on the forehead and upper lip, multiple upper and lower front teeth avulsion and fractures and abrasions on both hands.  CT scan and X-ray examinations were unremarkable.  He was then transferred to Prince of Wales Hospital for further management. 

5.  Upon transfer, the Plaintiff was seen at the A&E Department of Prince of Wales Hospital.  The diagnosis was head injury with transient loss of consciousness.  He was then admitted to the Department of Neurosurgery. 

6.  At the Department of Neurosurgery, the Plaintiff claimed that he had loss of consciousness for around 3 minutes after he fell and landed on this face.  His facial abrasions were dressed.  The Dental Team that assessed the Plaintiff found that there was degloving over the lower anterior region, 5 teeth missing, 1 intruded, 1 extruded and 2 avulsed.  Various procedures to deal with the same were performed.  The Plaintiff was discharged on 16 December 2014. 

7.  The Plaintiff was later admitted to the Department of Medicine & Geriatrics of Pok Oi Hospital on 25 December 2014. Physical examination showed reduced neck range of movement due to pain and blood test showed modest elevation of alanine aminotransferase level.  Clinical diagnoses were non-specific dizziness and non-specific elevation of alanine aminotransferase level.  He was discharged on 28 December 2014 as his symptoms gradually subsided.  He was last seen there on 24 March 2015 and was in generally satisfactory condition. 

8.  On 8 January 2015 the Plaintiff attended the Department of Family Medicine & Primary Health Care of Yuen Long Jockey Club Health Centre.  He complained of headache, dizziness, gum pain and right sided neck pain.  Physical examination showed swelling at upper and lower gum incisor region, local tenderness at right trapezius muscle and reduced rotation movement at the neck.  He was given analgesic and 5 days of sick leave. 

9.  On his subsequent 3 re-attendance there for persistent neck pain, the Plaintiff was given 5 days of sick leave on each occasion. 

10.  On 19 January 2015 the Plaintiff attended the Department of Family Medicine & Primary Health Care of West Kowloon GOPC.  He complained of headache, dizziness, right sided neck pain and also gum pain.  He was diagnosed to have suffered post-concussion syndrome and neck pain.  He was referred to physiotherapy for this neck pain and given 4 days of sick leave. 

11.  The Plaintiff attended the Department of Family Medicine & Primary Health Care of Madam Yung Fung Shee Health Centre on 27 January 2015.  He complained of right sided mechanical neck pain; physical examination showed tenderness at right trapezius muscle and there was reduced rotation at neck and right shoulder.  He was given analgesics and 14 days of sick leave. 

Expert Assessment

12.  The Plaintiff was examined by Dr K. L. Yip, a specialist in oral and maxillofacial surgery, a few years after the accident. In Dr Yip’s report dated 11 April 2018, Dr Yip gave the following opinions: -

a.  Diagnosis

     Dental

     Loss of 9 teeth and alveolar bone both in his upper and lower jaws due to the accident;

     Inadequate subsequent dental repair causing current complaint of insufficient chewing power;

     The front teeth do not touch;

     Temporomandibular Joints (JMT)

     Internal derangement of the right JMT with displacement and recapture of the meniscus, which the Plaintiff said only developed after the accident.

b.  Future Treatment

     Dental

     Five teeth implants, two implants for the upper part, three implants for the lower part; grafting will be necessary due to significant amount of bone loss;

     Total estimated cost: $305,000

     TMJ

     Repositioning splint together with therapy;

     Total estimated costs: $14,000

c.  Prognosis

     Dental

     After full rehabilitation of his dental lost, complete restoration of normal and efficient chewing can be expected;

     TMJ

     Normal TMJ function can be expected after splint therapy; however further relapse is unpredictable.

PSLA

13.  The Plaintiff claims a sum of $600,000 in the Revised Statement of Damages and cited Sin Kin Man v Hsin Cheong Construction Co. Ltd. (HCPI 740/2004, 30.11.2005) and Kwok Chi Kuei v Lee Chung Lick (HCPI 1058/2005, 16.12.2009) in support. 

14.  Sin Kin Man involved a rather different type of injury, it involved serious head injury and spinal injury, with psychological consequences as well.  There was no dental injury at all.  I find this case not a suitable comparison to the present case. 

15.  Kwok Chi Kuei is more comparable to the present case on the dental aspect, although caused not by impact but by maltreatment.  There the plaintiff suffered maltreatment to almost 30 of her teeth in various ways and to various extent. 

16.  In Fang Guo Quan & Anr v Choi Ming Sang & Anr (DCPI 1468/2008, 23.12.2010), the husband and wife plaintiffs met with a traffic accident.  The husband lost 5 teeth instantly and later had to lose another 10, as well as skin laceration and knee soft tissue contusion.  The Court allowed the $200,000 PSLA claim in full. 

17.  The Plaintiff’s injuries seem to fall somewhere between Kwok Chi Kuei and Fang Guo Quan.  Taking into account the Plaintiff’s other injuries and the painful dental procedures he had and will have to endure, I assess a sum of $400,000 under this head. 

Pre-trial Loss of Earnings

18.  The Plaintiff claims full loss of his pre-accident monthly earnings of $4,000 for 11 months.  He was given a total of 64 days of sick leave between 12 December 2014 to 14 February 2015.  The basis for claiming 11 months of loss is that he did not resume working until November 2015, as a security guard. 

19.  The reason why the Plaintiff was unable to return to gainful employment after 14 February 2015 does not appear in either the Plaintiff’s witness statement or in the medical treatment history above.  There was apparently no continued treatment sought after February 2015. 

20.  The claim for full loss of 11 months is not established on evidence, which only establishes an inability to return to work up to expiry of sick leaves in February 2015.  At most the Plaintiff should be given just a few more weeks to look for a new job. 

21.  I therefore assess this head of loss at $4,000 x 3 months = $12,000. 

Loss of Earning Capacity

22.  To establish this head of claim, a claimant has to show that there is a real risk of him/her losing his/her current job and that he/she will face a disadvantage in the open labour market due to his/her disabilities. 

23.  The Plaintiff has given no evidence in support of a real risk of losing his current job as a chef.  In fact, there is a distinct lack of description of how well or badly the Plaintiff is handling his chef job in his witness statement, which stated inabilities to handle the previous job only. 

24.  This head of claim is not made out on evidence. 

Special Damages

25.  A sum of $22,000 is claimed for medical expenses, $8,000 for traveling expenses and $6,000 for tonic food and miscellaneous expenses. 

26.  For medical expenses, private consultations cost a total of $20,000 and there are various receipts in support of expenses in the public sector.  I find nothing unreasonable with this part of the claim and will allow it in full. 

27.  As for traveling expenses, there is only 1 taxi receipt adduced hence I have to rely on common sense in assessing this claim.  Based on a rough count of the number of medical attendances and a rough estimate of traveling expenses for each attendance, I will assess a lump sum of $4,000. 

28.  As for tonic food and miscellaneous expenses, there is not a single receipt adduced.  Relying on experience and common sense, I assess a lump sum of $3,000. 

29.  In total I assess $29,000 under this head. 

Damage to the Bicycle

30.  The Plaintiff claims a total loss of the bicycle, which is said to worth $33,800. 

31.  The documentary evidence shows that the bicycle frame cost $13,800 and the handwritten notes on that receipt states that other components were separately purchased and without receipt.  What is to note is that there is this line “damaged bicycle $20,000” to the left of the Plaintiff’s signature with the date of 23 June 2015. 

32.  Therefore it is not clear what the evidential basis is for the Plaintiff to assert in his witness statement that the cost of the bicycle and its repair come to $33,800.  The other obvious problem with this assertion is that it mentions both cost of the bicycle and repair, but these two cannot be awarded at the same time as either one claims the value of property totally lost or for cost of repairing it. 

33.  On such evidence I am only prepared to allow $20,000 under this head. 

Future Medical Expenses

34.  The Plaintiff claims for the cost for further dental and TMJ treatment recommended by Dr Yip, based also on Dr Yip’s estimates of costs. 

35.  I accept Dr Yip’s opinion as to the need for such treatments and also his cost estimates.  I will allow this head of claim in full, ie $319,000. 

Summary

36.  In conclusion, I assess damages in this case as follows: -

PSLA		$400,000
Pre-trial loss of Earnings		$12,000
Loss of Earning Capacity		Nil
Special Damages		$29,000
Damage to the Bicycle		$20,000
Future Medical Expenses		$319,000
	Total	$780,000

Interest

37.  The Plaintiff is entitled to interest at 2% per annum from the date of the Writ herein to the date hereof on general damages. 

38.  Interest on pre-trial loss of earnings and other special damages should accrue from the date of the accident to the date hereof at half the judgment rate. 

Costs

39.  I make an order nisi that the Defendant shall pay the costs of this assessment, to be taxed if not agreed.  This order shall become absolute unless an application to vary the same is made within 14 days from the date of handing down of this decision. 

40.  The Plaintiff's own costs be taxed in accordance with the Legal Aid Regulation.