CHUM HOK CHING AND ANOTHER v. CHUNG LAI CHING

DCPI 887/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 887 OF 2011

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ASSESSMENT OF DAMAGES

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BACKGROUND

1.  At about 10:24 pm on 26 March 2010, the 1^st plaintiff was driving a motorcycle bearing registration number NA226 along the 5^th left lane of the westbound carriageway of Kwun Tong Road in the direction of Mong Kok near lamp post AB1283, and the 2^nd plaintiff was the passenger of the motorcycle.

2.  At that time, the defendant was driving a private vehicle bearing registration number KP6023 along the 4^th left lane of the westbound carriageway of Kwun Tong Road in the direction of Mong Kok.  However, the defendant swerved right into the 5^th left lane and moved into the path of the 1^st plaintiff causing her vehicle to collide with the 1^st plaintiff’s motorcycle.

3.  As a result of the accident, the 1^st and 2^nd plaintiffs sustained injuries and commenced the present action against the defendant to claim for damages, interest and costs.  The total amount of damages claimed by the 1^st and 2^nd plaintiffs exceeds $1 million, but they abandon the excess amount so as to make their claim fall within the jurisdiction of the District Court.

4.  The defendant did not dispute liability and hence interlocutory judgment on liability was entered against her on 10 October 2011 with damages to be assessed.  Thus, the hearing before me is for assessment of damages only.

DAMAGES FOR THE 1^ST PLAINTIFF

5.  The 1^st plaintiff’s claim for damages was summarised in his Revised Statement of Damages dated 28 November 2011 as follows: -

6.  However, in the opening and closing submissions prepared by the plaintiffs’ counsel, Mr Wong, there are some changes to the summary stated above.  The loss of pre-trial earnings becomes $8,400.00 and there is a separate item for loss of MPF in the sum of $420.00.  The amounts for special damages and tonic food become $21,533.00 and $5,000.00 respectively.  Thus, the total amount of the 1^st plaintiff’s claim becomes $601,353.00.

7.  In the Answer to Revised Statement of Damages of the 1^st plaintiff dated 23 December 2011, the defendant alleges that the 1^st plaintiff should only be entitled to damages as follows: -

8.  At the trial, the 1^st plaintiff and the defendant agree that the 1^st plaintiff is entitled to the following amounts of special damages:-

9.  The remaining item under special damages that is still in dispute is in relation to the claim for the 1^st plaintiff’s damaged motorcycle in the sum of $9,500.00.

Personal background

10.  The 1^st plaintiff was born in Mainland China on 20 February 1974.  At the time of the accident, the 1^st plaintiff was 36 years old.  He finished Form 3 education in Mainland China and did not continue his education after he came to Hong Kong in 1984.  He worked as an auto technician under a sole proprietorship at the time of the accident.

11.  There was a previous accident happened on 25 October 2009 in which the 1^st plaintiff suffered injuries at his right knee.  In the MRI scan report of the 1^st plaintiff’s right knee by Hong Kong Sanatorium & Hospital dated 27 October 2009, the 1^st plaintiff was found to have (1) soft tissue edema as well as large suprapatellar effusion, (2) bone bruises in the posterior medial and lateral tibial plateaus, (3) tear in the posterior horn of medial meniscus and intrasubstance tear lateral meniscus, (4) ACL tear, and (5) partial tears medial and lateral collateral ligaments.

12.  On 6 January 2010, when the 1^st plaintiff was examined by Dr Li Kin Wah of Hong Kong Sanatorium & Hospital, it was found that (1) the right knee joint showed normal alignment, (2) slight periarticular osteophyte formation was present, (3) the distal part of the right tibia, the proximal part of the right tibia and fibula showed normal bony texture, (4) no fracture was noted, and (5) no joint space narrowing was seen.

13.  Under cross-examination, the 1^st plaintiff admits that he had an operation to mend the tear in the ligament of his right knee in January 2010 and he was granted sick leave in relation to the previous accident from 25 October 2009 to April 2010.  Thus, at the time of the present accident, he was still on sick leave in respect of the previous accident and was not working.

Injuries and treatments

14.  In relation to the present accident, the 1^st plaintiff was admitted to the Department of Accident & Emergency of QEH immediately after the accident.  According to the Medical Report dated 7 June 2010 of the Department of Accident & Emergency of QEH, the 1^st plaintiff was examined by Dr Yip Sai Hang on 26 March 2010 at 23:16 hours, and he was found to have abrasion over the front of both knees, but x-ray showed no fracture.  The clinical diagnosis was knee contusion.  The 1^st plaintiff was treated and discharged, but he was granted sick leave for 14 days from 26 March 2010 to 8 April 2010.

15.  On 29 March 2010, the 1^st plaintiff attended ABHCGOPC.  It is not clear what treatment he received during this visit.

16.  On 10 April 2010, the 1^st plaintiff consulted Dr Au Wing Wah for his left ear hearing loss.  According to Dr Au’s medical report dated 7 May 2011, physical examination revealed no external injury around both ears, otological examination demonstrated a 3mm fresh tear in the tympanic membrane of the 1^st plaintiff’s left ear, and tuning fork hearing tests revealed minimal decrease in air conduction in his left ear.  The 1^st plaintiff was prescribed with Eurozyme 90mg t.i.d. and Vitamin C 100 mg t.i.d. for 5 days, but he did not return to Dr Au for follow up.

17.  As stated in his Revised Statement of Damages, the 1^st plaintiff claims that he is suffering from the following disabilities (including discomfort) as a result of the present accident: -

(1) Loss of left ear hearing.

(2) Minimal decrease in air conduction in the left ear.

(3) A 3mm fresh tear in the tympanic membrane of the left ear.

(4) Pain over the left and right knees.  The pain is aggravated by squatting for 5 to 10 minutes.

(5) 3 scars of 3 X 1.5 inches, 1 X 0.5 inches and 0.5 X 0.5 inches over the left knee.

(6) A scar of 2.5 X 0.5 inches over the left elbow.

PSLA

18.  The 1^st plaintiff relies on the injuries and treatments stated above to claim for a sum of $350,000.00 under the heading of PSLA.  However, in his closing submissions, Mr Wong for the 1^st plaintiff submits that the PSLA award should be about $180,000.00 to $250,000.00 for the knees, about $80,000.00 to $150,000.00 for the ear and about $80,000.00 to $100,000.00 for the elbow, but the total appropriate amount should be in the region of about $250,000.00 to $300,000.00.

19.  Mr Wong submits that the “Thin Skull Rule” applies in relation to the injuries over his right knee caused by the previous accident.  As stated in Dulieu v White & Sons [1901] 2 KB 669 at 679,

“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.”

20.  Mr Wong also refers to the well-known dictum of Scrutton LJ in The Arpad [1934] P 189 CA at 202 as follows: -

“You negligently run down a shabby-looking man in the street, and he turns out to be a millionaire engaged in a very profitable business which the accident disables him from carrying on; or you negligently and ignorantly injure the favourite for the Derby whereby he cannot run. You have to pay damages resulting from the circumstances of which you have no notice. You have to pay the actual loss to the man or his goods at the time of the tort…”

21.  As an example, Mr Wong cites the case of Love v Port of London Authority [1959] 2 Lloyd’s List Law Reports 541, where the defendants’ crane-driver negligently caused the plaintiff to sustain head injury.  From such injury the plaintiff developed neurosis, although this was aggravated by a pre-existing heart condition.  Edmund J at 545 stated that,

“one has to remember, of course, that the defendants must take the plaintiff as they find him, that is to say, with his already vulnerable personality…if what we may call the 70 per cent. heart neurosis would not have prevented the plaintiff from working; but the addition of the 30 per cent. accident neurosis produced total incapacity, the defendants have to recompense the plaintiff for all special damages arising from the 100 per cent. neurosis which developed from these two causes.”

22.  Mr Wong submits that the facts of Love v Port of London Authority are similar to the present case.  As the 1^st plaintiff’s pre-existing injury over his right knee was found to be aggravated by the defendant’s negligence, the defendant is also liable wholly for the subsequent aggravated injury. 

23.  Further, in Yip Mau Leung v University of Hong Kong [2000] 3 HKLRD 198, the plaintiff was an artisan working at the University of Hong Kong.  He had three accidents.  First, he sprained his dominant wrist while playing badminton (the first accident).  Then, he injured the same wrist in an accident at work (the second accident).  Subsequently, he injured the wrist again whilst making screws at work (the third accident).  The plaintiff successfully obtained judgment against the University in respect of the second accident.  At issue was whether the first and third accidents could be taken into account in assessing the degree of the plaintiff’s impairment for the purpose of assessing the damages.  The court held that the “egg-shell skull” principle applied and all the three accidents were relevant.  With his predisposition to injury following the first accident, the second accident consequently had a greater impact on his ability to perform his duties and on his enjoyment of amenities in general than would otherwise have been the case.  The second accident increased his vulnerability to further injury, a reasonably foreseeable consequence of the defendant’s negligence as the third accident illustrated.

24.  I accept Mr Wong’s submissions and the authorities as stated above.  I find that the “Thin Skull Rule” does apply in the present case.  It is clear to me that the 1^st plaintiff, with his pre-existing right knee injuries, has endured more pain and suffering than a person who has only sustained knee contusion caused by the present accident per se.  In fact, from the surveillance video produced at the trial, it shows that the 1^st plaintiff, while squatting, had to shift his weight from his left leg to his right leg and vice versa frequently.  He explains that he was doing that in order to relieve his pain.  I accept his evidence in this regard.  He may be able to squat longer if he only had a left leg injury as he can put his weight on his right leg, but with his pre-existing condition at the right knee, he cannot do that.  He has obviously suffered more pain and discomfort than someone without the pre-existing condition.

25.  From the surveillance video, it also shows that the 1^st plaintiff was walking with his right shoulder lower than the left one.  He explains that it was due to his leg pain.  He walked with his right shoulder lowered because he was “flinging” his left leg.  In fact, after the accident, there are several postures in which he experiences pain.  The postures are standing, squatting and when repairing cars.  He feels pain and needs to relieve the pain by sitting down.  He also stretches his leg in the posture he needs to be in to relieve the pain.  The surveillance video shows that he was walking and jumping after squatting.  He explains that he did that because he was feeling pain after squatting for about 5 minutes.

26.  I accept the 1^st plaintiff’s explanations.  Judging from his actions and movements in the surveillance video, it does not appear to me that he was lying about his pain or that he was acting to exaggerate his claim in this regard.  I think the surveillance video does support the 1^st plaintiff’s explanations and is consistent with the 1^st plaintiff’s evidence about his pain.  His pain may have been aggravated by his pre-existing condition at the right knee, but the defendant is still liable for such aggravated pain under the “Thin Skull Rule”.

27.  Mr Clough for the defendant submits that in terms of a medical condition the plaintiff as a layman cannot give medical evidence, but the plaintiff relies on no expert evidence.  He did not disclose and it is still unknown what permanent disabilities he suffers from the earlier accident.  Thus, the court cannot attribute any orthopaedic disability or orthopaedic permanent consequences from the present accident.  The surveillance video shows that any deficit is almost indiscernible but it would be impossible for the court to decide whether any deficit is attributable to this accident particularly when the prior accident was obviously so much more serious.  The court is entitled to and should draw the adverse inference that the reason why that medical evidence of the earlier accident and the prognosis after the operation was not put before the court was because it would not benefit the 1st plaintiff’s case and that the 1^st plaintiff should not be permitted to rely on any claim relating to the alleged deficit in his right knee.

28.  I do not accept Mr Clough’s submissions in this regard.  The 1^st plaintiff has frankly admitted in his evidence that the disabilities sustained as a result of the present accident are mainly in relation to his left knee, not his right knee. It is not a case that there is no medical evidence at all to support the 1^st plaintiff’s knee injuries.  Dr Yip’s medical report confirms that the 1^st plaintiff suffered abrasion over the front of both knees.  If the 1^st plaintiff wants to lie about his injuries, he could have given evidence that the pain at both his right and left knees was caused by the present accident, but he did not do that.  He admits frankly that he had an operation in January 2010 for his right knee due to the previous accident and also he had sick leave for that until April 2010.  It does not occur to me that he was lying or trying to hide these matters.  As his claim is mainly in relation to his left knee, not his right knee, it is understandable that he did not seek expert evidence on his right knee in relation to the previous accident.  As the “Thin Skull Rule” applies, it is not necessary to discern how much pain he suffers was caused by the previous accident and how much by the present accident.  The defendant is liable for 100% of the 1^st plaintiff’s present pain and discomfort even though it was aggravated by the previous accident.

29.  However, I agree that there is absolutely no medical or other evidence to support the 1^st plaintiff’s claim that he suffered injuries to his left ear and left elbow as a result of the present accident.  Dr Yip’s medical report does not state that the 1^st plaintiff made any complain about head injury, hearing loss or anything wrong with the ear.  If he had indeed made such complaints, I would expect Dr Yip to report such complaints as they could be serious matters.  The 1^st plaintiff was seen by Dr Au only on 10 April 2010, ie 2 weeks after the present accident, and there was no external injury found around both ears.  There is no expert evidence to explain how the 1^st plaintiff could have a 3mm fresh tear in his left tympanic membrane 2 weeks after the accident when there was no symptom at all at the time of the accident.  It is always possible that the 3mm tear was caused by another event not related to the accident.

30.  Likewise, if the 1^st plaintiff suffered abrasion, bruising, pain and reduction in the range of movement at his left elbow at the time of the accident, I would expect Dr Yip to record such complaints and findings, but none of these matters were mentioned in his medical report.  There was also no reason for the 1^st plaintiff not to mention such conditions to Dr Yip, if they were indeed present, as the 1^st plaintiff should be able to feel the pain and reduction of movement at that time.

31.  In his Revised Statement of Damages, the 1^st plaintiff states that he had pain over his lower back but it is not included in his list of disability (including discomfort).  It is not clear whether he still suffers from lower back pain. In any event, as in the case of left elbow injury, such injury at his lower back is not supported by any medical or other evidence.  I am not prepared to accept that the 1^st plaintiff suffered lower back pain on his mere allegation.

32.  Thus, I am not satisfied that the 1^st plaintiff has produced sufficient proof that the injuries at his left ear, left elbow and lower back were caused by the present accident.  No award would therefore be made in respect of such injuries.

33.  Insofar as the amount of PSLA for the injuries of the 1^st plaintiff’s knees is concerned, the following cases are relevant: -

(1)   In Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407, the plaintiff complained of persistent lower back pain and left knee pain, and required a stick to walk. There were also persistent headaches.  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.  The court of appeal agreed with the master in his award of $300,000.00 under PSLA.

(2)   In Man Ying Chu v Leung Kwok Wing & Others, HCPI 1062/2004, the plaintiff suffered rotational injuries to her knees.  CT scans showed that the ACL in the plaintiff’s left knee was chronically torn.  An MRI scan undertaken demonstrated a complete ACL tear, and that all of the residual ACL fibres had been reabsorbed into the body.  The MRI scan also demonstrated a complete loss of the lateral meniscus.  The court found that it was more likely than not that many years ago, in all probability in childhood, the plaintiff had suffered an injury that resulted in a substantial tear of the ACL in her left knee.  PSLA of HK$250,000.00 was granted.

(3)   In Ko Kam Wai v Sze Hak Fung & Another, HCPI 292/2005, the plaintiff suffered contusion injuries to his back and left knee in an accident.  There was no neurological deficit in his back and there was no fracture of bones.  An MRI scan showed left knee medial meniscal injury as well as a haemangioma over the lumbar region of his back which was not related to his injury.  The treating doctors advised the plaintiff to undergo operative intervention to treat his knee problem, but he declined and preferred to be treated conservatively with a brace.  It was held that he was suffering from some residual pain and disability in his knee, but likewise the court thought that he had exaggerated his gait.  PSLA of HK$200,000.00 was granted.

(4)   In Yip Leung Hoi v Tin Wo Engineering Co Ltd & Others, HCPI 1026/2004, in the 1^st accident, the plaintiff suffered from left knee swelling due to joint effusion.  There was no external wound or bruising.  The plaintiff could not flex his left knee completely because of the effusion.  Tapping of the effusion from the left knee was performed with about 20 to 30 cc of clear fluid yielded.  The plaintiff could flex his left knee better after the tapping.  In the 2^nd accident, the plaintiff suffered from tenderness and decrease in the range of movement of his left shoulder.  There were tenderness and swelling over both knees without loss of range of movement. His left shoulder and both knees showed no abnormality under X-rays.  MRI examination showed mild left knee effusion, a small medial meniscus tear and swollen anterior cruciate ligament in his left knee joint.  PSLA of HK$180,000.00 was granted.

34.  Having considered the above authorities, I am of the view that the present case is very similar to the case of Yip Leung Hoi.  The other 3 cases are relatively more serious than the present one.  I will therefore award a sum of $180,000.00 for the knee injuries, which is also the total award under PSLA.

35.  Mr Clough submits that the award under this head should be $15,000.00 because of the minor injury, but he produced no authority in support of this contention.  I am not prepared to accept Mr Clough’s submission in this regard as it is not in line with the authorities mentioned above.

Loss of pre-trial income

36.  The 1^st plaintiff’s case is that at the time of the accident, the 1^st plaintiff was working as an auto technician under a sole proprietorship, namely Track Wheel Car Services Company, and earned about $18,000.00 per month.  Track Wheel Car Services Company is owned by one Well Kit Limited and the 1^st plaintiff is a shareholder of Well Kit Limited.  As a result of his injuries and permanent disabilities resulting from the accident, the 1^st plaintiff was granted sick leave from 26 March 2010 to 8 April 2010 inclusively.  He was not paid for his sick leave under the previous accident and the present accident, but he received compensation from his personal insurance policy issued by Manulife.

37.  Mr Wong submits that, as a matter of principle, it is well settled that payments of a personal accident insurance policy is not deductible from the damages awarded against the tortfeasor. Justification for this rule was stated in terms of the contract of insurance having been out of a personal preference and voluntary decision of the plaintiff to invest his own money to provide compensation in the case of an accident (see Tort Law and Practice in Hong Kong, 2^nd ed, para 25.044 and Parry v Cleaver [1970] AC 1).  Thus, the compensation that the 1^st plaintiff derived under his personal insurance policy of Manulife should not be deducted from the total amount of the award.

38.  Mr Wong also refers to the case of Pearce v Lindfield [2003] EWCA Civ 647, where there were three separate road accidents over the course of eight months which caused separate whiplash injuries.  The cumulative effect was significant overall disability and an inability to work.  The court of appeal proceeded on the basis that since, on the evidence, it was impossible to attribute any resulting condition to one specific event, each tortfeasor must be taken to have made a material contribution to that overall condition.  It was then for the trial judge to determine the share of responsibility that should be borne by each defendant (see Kemp & Kemp The Quantum of Damages, vol 1, para 2-029)

39.  Relying on Pearce v Lindfield, Mr Wong submits that the court should take the defendant as contributed substantially to the injury of the 1^st plaintiff regardless of the first injury.  Alternatively, the court has discretion to apportion the sick leave period for a respective injury, and the sick leave certificates serve no more than an evidence in assisting the court in its apportionment (see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210). Accordingly, the overlapping of the two sick leave periods bears no real significances in determining the appropriate awards.  The court should only look at whether the left-leg injury suffered by the 1^st plaintiff in the accident justifies the period of sick leave as recommended in the certificate.

40.  In the premises, Mr Wong submits that the 1^st plaintiff is entitled to claim the loss of earnings as follows: -

Basic salary

$18,000.00 ÷ 30 X 14 days = $8,400.00

MPF

$18,000.00 ÷ 30 X 14 days X 5% = $420.00

41.  I do not accept Mr Wong’s submissions in this regard.  The 1^st plaintiff has clearly admitted that he was not working at the time of the accident and he was still under sick leave for his previous accident until April 2010.  There is no evidence as to exactly when he would return to work if the present accident did not happen.  The likelihood is that he would not be working during the period from 26 March 2010 to 8 April 2010 and he would not have received any salary for this period even if the present accident did not happen.  The principle of compensation, as stated by Lord Blackburn in Livingstone v Rawyards Coal Company [1880] 5 App Cas 25, is that “in settling the sum of money to be given for reparation of damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong”.  Thus, there is no reason for the defendant to compensate the 1^st plaintiff for something that he would not have received in any event.  The mere fact that he did not receive any sick leave pay from his previous accident is neither here nor there.  He should pursue his claim for his sick leave pay in relation to the previous accident in another arena instead of asking the defendant to contribute in this case.  Moreover, it is admitted by the 1^st plaintiff in his evidence that since he returned to work, his income is actually more than his pre-accident income.  It is clear that the 1^st plaintiff did not suffer any loss of income due to the present accident.

42.  I am therefore of the view that the 1^st plaintiff is not entitled to any claim for loss of pre-trial income including MPF.

Loss of Earning Capacity

43.  Mr Wong submits that the court may consider granting an award for the 1^st plaintiff's loss of earning capacity under the principles stated in Smith v Manchester [1974] KIR 1 and Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.  The purpose is to compensate for the 1^st plaintiff's added risk of suffering longer periods of unemployment between jobs owing to his handicap in the labour market (see also Lau Ho Ming v Wong Pak Ho, HCPI 254 of 2009).

44.  In his evidence, the 1^st plaintiff states thathe has to do car repairs, test run the cars, clean the cars and also make car delivery.  He has to squat down, crouch down and lift up objects when he is fixing cars.  He needs to squat for 3 to 4 hours on average per day. Because of the leg injury, he experiences pain after squatting down for some work, whereupon he needs to stand up and stretch his leg to relieve the pain. When he squats down, he has to shift his weight from left to right from time to time because of the pain.  He experiences pain after squatting for 5 minutes and he has to relieve the pain every 5 to 10 minutes. 

45.  The 1^st plaintiff also states that when conducting test runs, he experiences difficulties because the vehicle may have manual gears or automatic gears.  Sometimes when the clutch of the car is very heavy and when he steps on the clutch, he experiences pain.  He also needs to step on the gas pedal with his right foot, and if the action is prolonged, he experiences pain.  He has to drive motorcycles as well.  As motorcycles shake more than cars, he has to stretch his legs every 5 minutes.

46.  Furthermore, 1^st plaintiff states that after the accident, he is not able to do work that requires heavy manual labour.  He has shifted to work 24 hours on call for repairing and delivering vehicles.  He has to be on call even during holidays.  He has to be on duty for 24 hours which no other people would assume.  This is an additional duty because he is no longer able to work on some parts of his normal duties and he has to make up for the less work he takes on.  Thus, he does not have rest time as he works for 24 hours on call.  Even during sleeping hours and meal hours, he has to go to work.  His working hours have been extended.  Other people work for 5 hours and 8 hours, but he works for 24 hours. 

47.  Concerning the risk of him being thrown into the labour market, he states that if his fellow shareholder thinks that he has lost earning capacity, he may consider not hiring him and asking him to resign.  He has been in the automobile business his entire life and if he is not able to do such work, he would have to work as a driver.  If he is not able to work in the same business, he would have no choice but to change occupation because he has to earn a living.

48.  Hence, Mr Wong submits that due to the injuries sustained and the disabilities suffered by the 1^st plaintiff, there is a real risk that the 1^st plaintiff may be thrown into the labour market in future, and the 1^st plaintiff is entitled to damages under this head.  Mr Wong submits that the loss of earning capacity should be in the region of about $60,000.00 to $100,000.00 (about 3 to 5 months of his average monthly income).

49.  I am however unable to accept that the 1^st plaintiff is likely to be thrown into the labour market because of his injuries.  He is actually running his own business because he is one of the shareholders of Well Kit Limited which runs the sole proprietorship.  There is no evidence that the other shareholder has more say in the running of the business than he has.  The likelihood that he would be fired by the other shareholder is very slim.  Even if the other shareholder has the power to dismiss him, there is no reason for the other shareholder to do so, as his new role in working 24 hours on call seems to work well and he is earning more income.  In fact, as such a role is not welcome by the other workers, it is important to retain the 1^st plaintiff in the business.  Thus, I do not see any real risk or likelihood that the 1^st plaintiff would lose the present job and be thrown into the labour market because of his injuries.

50.  Moreover, there is no medical evidence that his present condition is permanent and the pain will last for the rest of his life.  If his condition is improved or recovered in the near future, the chances of him changing to another job are not real.

51.  In the circumstances, I do not agree that the 1^st plaintiff is entitled to claim for any loss of earning capacity.

Special Damages

52.  As aforesaid, the only outstanding item under special damages in dispute is in relation to the motorcycle damaged at the accident.  The 1^st plaintiff claims for a sum of $9,500.00, whereas the defendant contends that $3,000.00 should suffice as the damages were minor.

53.  The 1^st plaintiff produced the Survey Report dated 10 February 2011 by Auto Adjusters Bureau to support his claim.  According to the report, there were damages at the left front portion of the motorcycle, ie the meter case unit, front inner box and the exhaust pipe cover were deformed and the front panel, front flaring, front inner panel, left head lamp, left front flaring, left front mirror, left rear step, floor panel, rear box and the left rear fender were scratched.

54.  The report further states that the damages mentioned above could be consistent with and due to the same incident, and as the motorcycle was seriously damaged and beyond economical repairs, constructive total loss settlement is recommended.  It also states that the repair cost including the materials and labour cost to well repair the motorcycle would exceed its current market value, which is about $10,000.00/$11,000.00, and its scrap value is about $500.00.

55.  According to the 1^st plaintiff’s evidence, he did not scrap the motorcycle as recommended, but incurred $14,000.00 to repair the motorcycle, because he was unable to purchase the same motorcycle with the same brand and same model at that time.  The motorcycle was repaired in Tsuen Wan a few months after the accident.

56.  It is trite law that where the plaintiff’s property has been damaged, the cost of repairs is the normal measure of damages, but if the cost of such repairs will exceed the value of the property, the plaintiff must mitigate his loss by replacing the property.  If, however, he chooses to repair his property, he can only recover the cost of a replacement from the defendant.  This rule does not apply where the property concerned is irreplaceable.  (See Halsbury’s Laws England, vol 12(1), para 1043 and Darbishire v Warran [1963] 3 All ER 310.)

57.  Accordingly, although the 1^st plaintiff actually incurred the amount of $14,000.00 to repair the motorcycle, he only relies on the report to claim the loss by replacing the motorcycle, i.e. $9,500.00 ($10,000.00 being the lower sum of the market value less the scrap value of $500.00).

58.  The defendant produced no evidence to substantiate the repair cost being only $3,000.00.  In the absence of contrary evidence, I accept the 1^st plaintiff’s evidence in this regard.  I also accept his approach in assessing the damages.  Thus, the award for the damaged motorcycle is in the sum of $9,500.00.

59.  The total award for special damages including the amount agreed is therefore in the sum of $18,617.00.

Tonic food

60.  The 1^st plaintiff purchased tonic food in the amount of $8,000.000 and it is supported by a receipt issued by Tung Fung Medicine Co dated 13 May 2010.  However, he only claims the amount of $5,000.00 under the head of tonic food.  The defendant contends that it was unreasonable for the 1^st plaintiff to purchase tonic food and he should not be allowed any sum under this head.

61.  In Kings Light Industrial Ltd v Lo Wai Keung, CACV 80/1992, the court of appeal reduced the trial court’s award of $28,060.00 for nourishing and tonic food to $5,000.00.  It was held that this was a reasonable amount as the expense had not been incurred on the advice of an expert. 

62.  In To Wei Kei v Vickcore Engineering Ltd & Another [2003] 1 HKLRD 69, $30,000.00 was claimed under tonic food. No receipt was produced.  It was held that in the absence of evidence of the nature and need of such items, only nominal sums are allowed.  The court awarded $10,000.00. 

63.  Based on the above authorities and having regard to the nature of the 1^st plaintiff’s injury and its treatment, the 1^st plaintiff’s age, the period over which such food was consumed and the amount claimed, I agree with Mr Wong that even though the tonic or nourishing food has not been prescribed by an expert or on medical advice, it is still reasonable for the 1^st plaintiff to purchase and consume tonic food.  The 1^st plaintiff is not claiming the full amount of $8,000.00, but just a portion of this amount.  I am of the view that in the circumstances of the 1^st plaintiff, $5,000.00 under the head of tonic food is reasonable.

Interest

64.  As usual, the 1^st plaintiff is entitled to interest on general damages, at 2% per annum from the date of the writ, ie 30 April 2011, to the date of assessment.

65.  On special damages, interest will be at half of the prevailing judgment rate from the date of the accident, ie 26 March 2010, to the date of assessment.

Total award

66.  Thus, the 1^st plaintiff is entitled to the following amounts: -

DAMAGES FOR THE 2^ND PLAINTIFF

67.  The 2^nd plaintiff claims damages as per her Revised Statement of Damages dated 28 November 2011, namely: -

68.  However, the amount of $97,959.00 was wrongly stated in the Revised Statement of Damages.  Mr Wong in his submissions has corrected this figure to $96,293.00.

69.  In the Answer to Revised Statement of Damages of the 2^nd plaintiff dated 23 December 2011, the defendant contends that the 2^nd plaintiff’s entitlement should be as follows: -

70.  However, the 2^nd plaintiff and the defendant agree at the trial that the 2^nd plaintiff is entitled to the following amounts as special damages:-

71.  The outstanding item that has not been agreed under special damages is the 2^nd plaintiff’s claim for loss of her watch at the accident valued at $30,500.00.

72.  Apart from the pleaded claim of $13,000.00 for future medical expenses, which has been agreed by the defendant, the 2^nd plaintiff claims an additional sum of $15,000.00 as future medical expenses.  This sum is to be incurred by the 2^nd plaintiff for taking a tricyclic drug such as Amitriptyline to improve her sleep, relieve her headache and regulate her mood as recommended by both sides’ experts.  However, this sum is disputed by the defendant.  The defendant did not take any point that this item is not pleaded, but just disputes the amount.

73.  As to the tonic food, the defendant is now agreeable to allow $5,000.00 as claimed after hearing the 2^nd plaintiff’s evidence, even though the defendant maintains that tonic food should not become a conventional “add on” claim.  Thus, there is no dispute concerning this item now.

Personal background

74.  The 2^nd plaintiff was born in Hong Kong on 11 March 1978 and was educated up to Form 5 level.  At the time of the accident, she was 32 years old and worked as a merchandising clerk earning $13,500.00 per month.  The 1^st plaintiff was her boyfriend, but now her husband.  They married in early 2011 and since then they have a baby boy.  She did not have any previous injuries before the accident.  Before the accident, her pastimes were hiking, running, swimming, and driving motorcycles.  Now she resumes swimming but not the other activities.

Injuries and treatments

75.  Immediately after the accident on 26 March 2010, the 2^nd plaintiff was admitted to the Department of Accident & Emergency of QEH.  She was attended by Dr Lui Yee Chiu Victor at 23:55 hours on the same day.  According to Dr Lui’s medical report dated 4 June 2010, the 2^nd plaintiff’s major complaints were head and limb injuries, but the general condition was good.  Medical examination revealed minor head injury with multiple superficial limb abrasions.  The clinical diagnosis was head injury and limb soft tissue injury.  She was treated and discharged. Permanent disability, if any, is to be assessed by the Medical Assessment Board.

76.  The 2^nd plaintiff attended ABHCGOPC on 29 March 2010, 1 April 2010 and 7 April 2010 for dressing of the wound on her head.

77.  On 31 March 2010, the 2^nd plaintiff consulted Dr Clifford Loo.  She was further followed up by Dr Loo on 6 May 2010, 13 May 2010, 20 May 2010, 27 May 2010, 3 June 2010, 10 June 2010, 17 June 2010, 24 June 2010, 6 July 2010 and 10 July 2010.  From the sick leave certificates issued by Dr Loo, it seems that the 2^nd plaintiff consulted Dr Loo for head injury and head concussion.

78.  The 2^nd plaintiff attended the Accident & Emergency Department of UCH on 3 April 2010, 16 April 2010, 11 May 2010 and 19 May 2010.  As stated in the medical report dated 8 July 2010 prepared by Dr Wendy Cheng of UCH, the 2^nd plaintiff attended UCH on 3 April 2010 for persistent pain over the wound, face and bilateral upper limbs.  Physical examination on 3 April 2010 showed tenderness over her face and bilateral hand with abrasions. She was treated and discharged.

79.    On 9 April 2010, the 2^nd plaintiff consulted Dr Chau Yat Sang.  She was further followed up by Dr Chau on 17 April 2010, 21 April 2010, 24 April 2010 and 30 April 2010.  She was diagnosed by Dr Chau as suffering from head injury and multiple abrasions.

80.  On 16 April 2010, the 2^nd plaintiff attended Good Health Medical Practices Limited, and she was diagnosed by Dr Chan Nim Tak Douglas as having post-traumatic stress disorder.

81.  On 20 April 2010, the 2^nd plaintiff consulted Dr Or Chi Kong.  She was diagnosed with multiple injuries at face, scalp and both hands.

82.  On 12 July 2010, the 2^nd plaintiff attended PathLab Medical Laboratories Ltd, where x-ray of her cervical spine was taken.

83.  The 2^nd plaintiff attended the Department of Neurosurgery of QEH on 22 July 2010, 13 January 2011, 14 April 2011, 24 November 2011, 24 May 2012 and 19 July 2012.  Dr Tsang Chi Sum of QEH states in his medical reports dated 13 October 2011 and 25 May 2012 that the 2^nd plaintiff had loss of consciousness after the accident. She complained of persistent headache and dizziness afterwards.  In the report dated 13 October 2011, Dr Tsang states that when the 2^nd plaintiff was seen on 22 July 2010, her GCS was 15/15.  The left side parietal wound healed well.  There was no neurological deficit.  She was treated symptomatically and her symptoms were improving.  However, in his report dated 25 May 2012, Dr Tsang states further that CT brain was performed on 28 December 2010 and showed no abnormality.  She was treated symptomatically and her symptoms remained and fluctuated in severity.  Memory assessment was arranged for her for the poor memory and MRI brain for progress.

84.  On 7 May 2012, the 2^nd plaintiff consulted a specialist in neurosurgery, Dr Fung Ching Fai, and she was diagnosed with post-concussion syndrome.

85.  The 2^nd plaintiff was examined by the Department of Radiology & Imaging of QEH on 3 July 2012.  According to its report dated 9 July 2012, the clinical diagnosis was post-concussion syndrome but no abnormality was noted.

86.  The 2^nd plaintiff was referred to the Department of Occupational Therapy of QEH, and in the Rivermead Post Concussion Symptoms (PCS) Questionnaire dated 30 May 2012, it shows that the score of the 2^nd plaintiff was 61 out of 64. Also, in the Montreal Cognitive Assessment (MOCA) Hong Kong Version dated 30 May 2012, the 2^nd plaintiff scored 26 out of 30.

87.  In the joint medical report dated 19 September 2011 by Dr Otto Au and Dr Ian Nicolson, both specialists in plastic surgery, both experts confirm that the 2^nd plaintiff had (1) a bald spot measured at 20 X 15mm, smooth flat and void of hair at the left posterior scalp; (2) several abrasion scars over the dorsum and proximal wrist of the left hand, namely, a linear irregular scar at the radial surface of the proximal wrist measured 20 X 3mm, but it was soft, smooth and barely visible, and two round spots over the mid and ring fingers of the knuckle area measured 10 X 10mm and 7 X 7mm respectively which is slightly raised and firm; and (3) at the right hand dorsum, a round scar measured 8 X 10mm over the wrist, which was soft, smooth and slightly visible, and a round scar over the knuckle area of the ring finger measured 10mm in diameter, which was soft and smooth.  However, the hands and the wrists are freely mobile.

88.  Both experts agree that the 2^nd plaintiff’s current medical condition and her complaints were all attributable to the accident and she is able to resume her pre-injury occupation.  They both assess the 2^nd plaintiff’s cosmetic disability at 0.25% of a whole person and the percentage of permanent impairment is also 0.25% of the whole person.  They also advice that the scar on her scalp does not need treatment and the scars on her hands can be improved by plastic surgery in the form of excision revision, the costs of which are (1) surgeon's fee in the amount of $10,000.00 and (2) followed up charges in the amount of $3,000.00.

89.  In the medical report dated 3 November 2012 by Dr Brian Choa, a  specialist in neurology instructed by the 2^nd plaintiff, it is stated that the 2^nd plaintiff had the following symptoms: -

“ 1. Headache: This is a continuous pain felt over the back of the left side of her head. It waxes and wanes. It is worse when she exerts herself and when she is tense. It has a throbbing quality and often disturbs or even prevents sleep. Early on, her head pains were more superficial, related to the scalp wound. The present head pains are felt to be deeper and are not getting any better with time. After she was referred to the neurosurgeons, an MRI scan of her head was taken (in December 2010) showed no structural damage to her skull or brain.

2. Dizziness: This is in the form of momentary bouts of light headedness occurring about once a week. These attacks are enough to cause her to lose her balance briefly, so that she might have to hold on to something to prevent falling. She has not actually had a fall. She takes no medication for them.

3. Psychologically: For the first year after the accident, she had frequent nightmares about the accident or with other anxiety-provoking content. These have now gone, but she remains nervous in traffic. She has had to give up motorcycle rides altogether. Her husband takes her to work in a private car. Also, she notices a personality change in herself: She is more easily irritated, gets depressed for no obvious reason, but not to the extent of losing interest in life.

4. Cognition: She finds that she is less confident in her ability to remember things because she often loses her trend of thought. Her work involves dealing with her employer’s investments and she often has to check and re-check her work for fear of making mistakes.

5. Neck discomfort: Since the accident, she has become more prone to a cricked neck. When this happens there is pain and limitation of rotation of her head to the right.

6. Low Back discomfort: This is noticed only from time to time when she twists her back, such as in bending down to retrieve an object from the floor. Both her neck pains and back pains have shown improvement since 2010.

  7.       Scars: Her face has not been scarred.  There are small scars on her left hand and these have been dealt with in detail in the plastic surgeons’ joint report.”

90.  Dr Choa opines that the 2^nd plaintiff sustained mild traumatic brain injury.  Brain injury did occur because she lost consciousness and had a post-traumatic amnesia of some hours but less than one day.  No structural damage to her skull or brain was found on repeated radiological investigations.  Her residual symptoms or throbbing headache, dizziness, mood and personality changes (mild) and impaired concentration and balance are all consistent with post-concussion syndrome.  However, Dr Choa does not think that her symptons warrant a separate diagnosis of post-traumatic stress disorder as her symptoms have abated since 2010 and her anxiety in traffic does not fulfil the criteria for post-traumatic stress disorder.

91.  Dr Choa believes that the treatment of her post-concussion syndrome can be improved.  She is a good candidate for the use of medication such as s tricyclic drug like amitriptyline, which would have the combined effect of improving sleep, relieving her headaches and regulating her mood.  Such treatment, if supervised by a neurologist or psychiatrist in private practice, would cost an estimated $15,000.00 over about a six-month period.  Given the 2^nd plaintiff’s good general health and youth, the prognosis is favourable.  This treatment should be arranged without delay as she is hoping for another baby. Ideally, she should be off medication by the time she gets pregnant again.

92.  The defendant’s neurology expert, Dr Yu Yuk Ling, gives similar opinions as those of Dr Choa.  In his medical report dated 19 December 2012, Dr Yu opines that the 2^nd plaintiff has post-concussion syndrome as evidenced by the symptoms of headache, dizziness, impaired concentration, subjective impairment of cognition and memory, irritability and interrupted sleep.  In the initial phase, she had nightmares about the accident, but not now.  Currently she has apprehension about traffic, but this single feature is not sufficient to meet the diagnostic criteria of post-traumatic stress disorder.  In the accident, there was also mild injury of the neck and low back.  This would give rise to soft tissue injury resulting in pain, but there is no evidence for damage of the cervical spinal cord or root on clinical examination.

93.  Dr Yu agrees with Dr Choa's recommendation that the use of a tricyclic drug such as Amitriptyline would improve her sleep, relieve her headache and regulate her mood.  The expenses for such treatment by a neurologist or a psychiatrist would be about $15,000.00 over a 6 month period.  However, Dr Yu opines that if the treatment is by her family physician for a similar period, the expenses would be just about $7,000.00.

94.  Dr Yu assesses the percentage of permanent impairment of the whole person for the 2^nd plaintiff’s post-concussion syndrome, neck pain and low back pain to be at 4%, but she should be able to resume her pre-accident employment as a clerical officer, with mildly compromised work capacity.  The percentage of loss of earning capacity is also estimated to be 4%.  Dr Yu also opines that the 3 month sick leave she took was appropriate.

95.  In his closing submissions, Mr Wong for the 2^nd plaintiff submits that the 2^nd plaintiff is suffering from the following disabilities (but they are not quite the same as those pleaded in the 2^nd plaintiff’s Revised Statement of Damages): -

(1) Post-concussion syndrome including headache, dizziness, mood and personality changes (mild), and impaired concentration and balance.

(2) A bald spot at the left posterior scalp measured 20 X 15mm and the hair is void.

(3) Several abrasion scars over the dorsum and proximal wrist of the left hand.

(4) A linear irregular scar at the radial surface of the proximal wrist of her left hand measured 20 X 3mm.

(5) 2 round spots over the mid and ring fingers of the knuckle area of her left hand measured 10 X 10mm and 7 X 7mm respectively which is slightly raised and firm.

(6) Pain, numbness and weakness over her left hand.

(7) A round scar over the wrist of the right hand measured 8 X 10mm.

(8) A round scar over the knuckle area of the right finger of her right hand measured 10mm in diameter.

(9) Pain and numbness over her right hand.

(10) Loss of the fingernail of the left middle finger.

(11) Pain and numbness over the neck.  The numbness over her neck radiates to her left and right hands.  Reduction in the range of movement of her neck.

(12) Pain over her lower back.  The pain is aggravated by standing for 5 to 10 minutes and she has to sit or walk around in order to ease the pain.

96.  In view of Mr Wong’s submissions, I take it that the 2^nd plaintiff is no longer relying on all the disabilities (including discomfort) mentioned in her Revised Statement of Damages save for those mentioned in Mr Wong’s closing submissions.

PSLA

97.  The 2^nd plaintiff relies on the injuries and treatments stated above, in particular, the injuries over her head, wrist and lower back, and the facts and opinion contained in the medical reports, as well as the matters discussed below to claim for a sum of about $400,000.00 to $450,000.00 under the head of PSLA, which is in fact lower than the pleaded amount of $500,000.00.  The defendant maintains that the 2^nd plaintiff should only be entitled to $80,000.00 under this head.

98.  The injuries and treatments mentioned above, as well as the revised disabilities mentioned in Mr Wong’s closing submissions are all supported by medical evidence.  Thus, I find that the 2^nd plaintiff did suffer the injuries and disabilities as mentioned.  I note that the list of injuries contained in the 2^nd plaintiff’s Revised Statement of Damages includes some other injuries not mentioned above and they are not supported by medical evidence, but as the 2^nd plaintiff is now relying on the injuries and treatments just mentioned above, it is not necessary for me to deal with the other injuries.

99.  In her evidence, the 2^nd plaintiff states that she was pregnant after the accident.  She felt pain over her and but she was not able to take painkiller because of her pregnancy.  She felt pain over her lower back but she cannot take physiotherapy during pregnancy.  She also could not take painkiller after she gave birth of the baby as she was breast feeding.  I accept her evidence in this regard.  Thus, the pain and suffering sustained by the 2^nd plaintiff as a result of the accident is more than other people who sustained the same injuries and disabilities but could take painkiller to relieve the pain.

100.  From the photograph of the 2^nd plaintiff taken over her face after the accident, it shows that there were abrasions over her face as a result of the accident.  She states that after the collision when she looked at her face and found that it was in that condition she was very scared.  She considered that her face was destroyed.  Although her face was in that condition, she still needed to leave home to clean the wound of her hand.  When she went out, people look at her with special look and she felt uncomfortable and unhappy.  At that time, she was worried that her face would have scars.  As she was preparing to get married, it was difficult to describe how worried she was and how much impact of the injuries was on her.  Her family members were also worried about her which made her feel even more worried.

101.  She further states that after those red patches came off from her face, it took 3 to 4 months for the scars to recover butthere were still redness at those areas of her face.  She had to see plastic surgeon and consult cosmetic consultant to see what can be done.  She also kept consuming tonic food.  It took 9 months for the redness to disappear from her face.

102.  In relation to the scar over her left head, the 2^ndplaintiff states that she received 10 stitches and there was no hair growth at that area. She feels pain even up to now.  She does not know why that part of the scar protrudes out, but whenever she touches it, she feels pain.  She feels pain when she sleeps and turns to the left side.  Apart from that, she also feels pain from headache and that causes her difficulty in sleeping.  Furthermore, she cannot cut her hair too short, otherwise the scar will be revealed and other person could see the scar.

103.  I accept her evidence as aforesaid.  In the premises, although the 2^ndplaintiff was not suffering from permanent cosmetic disability for the abrasions over her face, there were pain and suffering sustained by her as a result of the abrasions over her face.

104.  The 2^nd plaintiff also gives evidence that after the accident, the first time she opened her eyes was when she was lying on the road.  After she first opened her eyes, she saw blackness and felt extreme pain because half of her fingernail came off.  She then lost consciousness and did not open her eyes until she arrived at hospital.  The 1^st plaintiff also gives evidence that after the accident, the 2^nd plaintiff fainted and he carried her in his arms until an ambulance arrived.  The ambulance attendants patted the 2^nd plaintiff who then shouted that she was in great pain.  After that, the 2^nd plaintiff fainted again.  She was carried into the ambulance and was in coma when she arrived at the hospital. 

105.   The Indication for Trauma Team Activation issued at 23:13 on 26 March 2010 by the Department of Accident & Emergency of QEH, which was the contemporaneous medical record of the 2^nd plaintiff’s admission to the hospital, indicates that her Glasgow Coma Scale was lower than 14.

106.  However, the defendant gives evidence that the 2^nd plaintiff was conscious and had a conversation with one alleged doctor at the scene of the accident.  The 2^nd defendant was cross-examined by Mr Wong on this issue at great length, in particular, the distance between her and the 2^nd plaintiff.  Even though I accept that the defendant may not have any intention to lie about this matter, her evidence in this regard is not satisfactory and I do not find myself able to rely on her evidence in this regard.  I believe that she might have made an honest mistake about seeing her talking to one alleged doctor.

107.  First of all, the defendant’s evidence is that she was 100m away from the 2^nd plaintiff when she first got out of her car, and she walked up 50m to a male who claimed to be an off-duty police officer who shouted "Don't walk, stand still".  She stopped for a while and then walked 8 to 10 steps to stand beside the 2^nd plaintiff 4 feet away from her.  It is impossible for anyone to walk 50m in 8 to 10 steps.  Even relying on her illustration in court, it took about 40 steps to walk the distance illustrated in court.  Thus, I have great doubt about her estimation of the distance between her and the 2^nd plaintiff.

108.  Furthermore, even relying on the defendant’s own evidence, the 2^nd plaintiff was facing the alleged doctor.  If that was the case, it is possible that her view would be blocked by the alleged doctor and she was not able to observe the 2^nd plaintiff’s facial expression.  Also, as the defendant was not in the ambulance, she could not tell whether the 2^nd plaintiff was unconscious or not when the 2^nd plaintiff was admitted to the hospital.

109.  In the circumstances, I am unable to accept the defendant’s testimony that the 2^nd plaintiff was conscious at the material time.  I accept the 1^st and 2^nd plaintiffs’ evidence in this regard as they are consistent and also supported by the contemporaneous record in the Indication for Trauma Team Activation mentioned above.  Nevertheless, I think the unconsciousness would not be too long.  The estimate of about 10 minutes is reasonable.

110.  As to the amount of PSLA, the following cases are relevant: -

Head

(1)   In Chan Sau Wai v Lam Kin Sum,HCPI 1168/2005, as a result of an accident which occurred in a granite mine, the plaintiff was admitted and hospitalized for one week.  She was diagnosed by doctors at that hospital as suffering from concussion from the head injury.  Her head wound was sutured with three stitches under local anaesthesia.  She complained of persistent headaches, vertigo, dizziness and nausea.  She also lost her temper easily with her family members.  It was found that the plaintiff was a genuine case of psychiatric impairment brought about by her post-concussional syndrome which also affected her memory and it was not accepted by the court that she still had some residual psychiatric symptoms.  PSLA of $500,000.00 was granted.

(2)   In Wong Leung Chi v Luen Fat Civil Engineering Ltd & Another,HCPI 975/2002, a falling plywood sheet struck the plaintiff on the head and left shoulder.  He was rendered immediately unconscious but was revived shortly thereafter.  He was taken to hospital in a taxi by a co-worker where a skull laceration was sutured.  He was discharged later that night after observation.  The plaintiff suffered and continued to suffer neck pain, left upper limb numbness and persistent dizziness.  He suffered paraesthesia over his left upper limb.  An x-ray of his cervical spine showed spondylosis features.  He was diagnosed to be suffering from cervical spondylosis with cervical radiculopathy.  It was concluded that he was suffering from post-concussional syndrome.  PSLA of $400,000.00 was granted.

(3)   In Lau Hing Kwan v Lai Chi Kwan & Another, HCPI 986/2003, the plaintiff sustained personal injuries in a traffic accident and suffered a brief period of loss of consciousness.  There was scarring over the forehead measuring 20 by 60 millimetres.  The scarring was also accompanied by three areas of traumatic tattoos over his nose.  The plaintiff also suffered from post-concussional syndrome with symptoms of headache, dizziness, impaired concentration, subjective impairment of cognition and memory, and irritability. PSLA of $280,000.00 was granted.

(4)   In Ng Ka Ho v Yeung Kwok Leung, DCPI 28/2004, the plaintiff sustained a head injury without loss of consciousness.  He also had right knee pain and a laceration near the right eyebrow.  There was no fracture.  The laceration was sutured.  He was treated with analgesics and discharged on the same day.  The following day, he developed dizziness and vomiting.  He was admitted again to the Neurosurgery unit.  The symptoms subsided spontaneously and the plaintiff was discharged.  It was assessed that the plaintiff had overall 1% impairment of the whole person.  The plaintiff resumed schooling about ten days after the accident.  The plaintiff complained of loss of memory but there was no clinical evidence of any brain damage or cognitive dysfunction.  Expert evidence showed that the plaintiff suffered from mild symptoms of Post Traumatic Distress Symptoms.  PSLA of $250,000.00 was granted.

Whiplash injury

(5)   In Anderson v Wui Yip Co Ltd & Ors [2002] 1 HKLRD 125, the plaintiff was injured in a traffic accident and sustained spine and whiplash injuries.  The plaintiff suffered from neck pain and stiffness, arm pain, headaches, dizziness, anxiety, irritability, depression and insomnia.  She was awarded $500,000.00 for PSLA.

(6)   In Ken John Geissler & Another v Chan Kim-chung & Another, HCPI 1/2000, the plaintiff suffered from pain and stiffness of the neck, and headaches.  The plaintiff was assessed to have 5% whole person impairment.  PSLA of $450,000.00 was granted.

(7)   In Tsoi Wing Tak Michelle v Lau Sze Ni,HCPI 926/2005, the plaintiff suffered from a whiplash injury to the neck.  Furthermore, there were contusion injuries to the chest wall and the plaintiff recovered with no residual disability.  PSLA of $180,000.00 was granted.  The case was appealed to the court of appeal and the application was dismissed.

(8)   In Fung Yuet Hing v Mok Sun & Another, DCPI 1706/2005, the plaintiff suffered from a mild whiplash injury to the neck, soft tissue sprain of the neck, contusion of forehead and face, and possible contusion of the anterior left shin.  PSLA of $160,000.00 was granted.

(9)   In Tai Yuk Wong v Chong Kwok Fung & Another, DCPI 1405/2005, the plaintiff suffered a whiplash injury to his muscle and soft tissue.  He had residual mild neck and shoulder pain.  PSLA of $150,000.00 was granted.  The case was appealed to the court of appeal and the application was dismissed.

Cosmetic disability

(10)   In X v Y, DCPI 229/2002, corrosive acid was thrown on the plaintiff and she was attacked with a knife.  The plaintiff sustained minor chemical burns to the face and a stab wound of about 3 cm.  The scars left on the plaintiff's face were small and only noticeable from a short distance.  The plaintiff suffered from posttraumatic stress disorder.  PSLA of $180,000.00 was granted.

(11) In Yip Kwan Cheung & Another v Chim Hong Wing,DCPI 475/2006, the 1^st plaintiff was cut on the forehead by broken glass, the 3 cm wound was sutured with 5 stitches and left a scar, and the 1^st plaintiff was also struck on the leg by debris and suffered bruising.  The 1^st plaintiff developed post-traumatic stress disorder that was manifested in the form of nightmares, flashbacks, fear of road traffic, irritability, social anxiety, poor sleep, absent-mindedness and withdrawal.  PSLA of $250,000.00 was granted.

Wrist

(12) In 雲淑莉 v 力根有限公司, HCPI 1142/1996, the plaintiff sustained a right wrist injury while unloading a basket of plates and also TFCC tears.  She suffered from persistent pain (psychosomatic in nature) and could not resume her pre-accident job. The PSLA award was $150,000.00.

111.  Having considered the above authorities and all the matters aforesaid, I am of the view that the PSLA award should be in the sum of $320,000.00.  In particular, I think the case of Lau Hing Kwan, supra, is similar to the present case, but the 2^nd plaintiff’s condition is slightly more serious than the plaintiff in that case, especially when the 2^nd plaintiff could not take painkiller.

112.  The defendant’s suggestion of $80,000.00 is far too low and unsupported by any authority.  I do not accept Mr Clough’s submission that the 2^nd plaintiff did not have orthopaedic problems because of what was shown in the surveillance video.  Although the video shows that the 2^nd plaintiff was talking over the phone for a long time, it does not mean that she had no pain at that time.  She explains that she was talking for so long because her elder brother and sister-in-law had marriage problems.  In fact the video does show that she walked slowly up and down the stairs and experienced pain.  She had to grab the handrail to walk up and down the stairs.  Although she was also pregnant at that time, one just cannot say that the pain she experienced must be due to her pregnancy and not the injuries she suffered.

113.  Thus, a sum of $320,000.00 is awarded under PSLA.

Loss of Earning Capacity

114.  Mr Wong submits that the court may consider granting an award for the 2^nd plaintiff's loss of earning capacity under the principles stated in Smith v Manchester [1974] KIR 1 and Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132.  The purpose is to compensate for the 2^nd plaintiff's added risk of suffering longer periods of unemployment between jobs owing to his handicap in the labour market (see also Lau Ho Ming v Wong Pak Ho, HCPI 254 of 2009).

115.  At the time of the accident, the 2^nd plaintiff was employed as a merchandising clerk and earned about $13,500.00 per month. The 2^nd plaintiff’s duties included, inter alia, composing and sending electronic mails, making telephone calls and handling various cargo manually.  The 2^nd plaintiff gives evidence thatshe worked alone in the office, so she was the only one to do the work in the office.  She would move the goods within the office and receive regular phone calls and type out emails in the office.  After she had her wrist twisted, whenever she types out emails and move her wrist, she feels pain.  Whenever she moves the goods, she feels great pain.  She is not able to move the goods.  Usually she types out email very fast, but after the accident she was not able to do such action and she types out email very slowly.

116.  The 2^ndplaintiff further states that she thinks slowly, her memory is not as good as before.  She cannot concentrate and her thinking is disorganized. She cannot organize her thoughts very well and this affects her work progress a lot because she handles all the works by herself. 

117.  The 2^ndplaintiff also states that her boss had given her a phone call and scolded her for her poor working performance in the recent 2 to 3 years.  The boss said that she worked very slowly and always forgot making bookings for him.  In fact, after the accident, the 2^ndplaintiff had taken 3 months' sick leave plus all the follow-up treatments and other treatments.  Before that, she had worked for the same company for 15 years and never took sick leave for more than 2 days each year. Thus, her boss was not satisfied with her because she had taken so many days of sick leave.  Apart from that, she may also need to attend physiotherapy treatment in the future and she does not dare to receive occupational therapy for more than one day each week.  As she is the only person working in the office, if she continues to take leave like that, there is a possibility that her boss would fire her.  She worries that she will lose this job, because she has worked in this office for 15 years and her work ability has decreased.  If she loses this job and as her academic qualifications are low, she is worried that she might not be able to get a job in the future.

118.  In respect of the reduction in her working ability, she states that as her discomfort has not fully resolved, her headaches affect her thinking and organization abilities which in turn affects her work.  Things can be chaotic and she gets very annoyed which directly affect her work performance.  Her evidence in this respect is supported by Dr Yu’s assessed on her.  Dr Yu assesses the permanent impairment and loss of earning capacity that the 2^nd plaintiff suffers as a result of the accident at 4% of the whole person, and as far as post-concussion syndrome, neck pain and lower back pain are concerned, she should be able to resume her pre-accident employment as a clerical officer, with mildly compromised work capacity. 

119.  I accept the 2^nd plaintiff’s evidence as aforesaid.  I find that due to the injuries sustained and the disabilities suffered by the 2^nd plaintiff as stated above, there is a real risk that the 2^nd plaintiff may be thrown into the labour market in future because of her disabilities.  The 2^nd plaintiff is therefore entitled to damages under this head.

120.  Mr Clough for the defendant submits that there is no evidence that the 2^nd plaintiff may be thrown into the labour market, and the objective evidence is that she has worked for the same employer for 15 years, she was fully paid during the sick leave period and the employer even found her a new position when the merchandising job disappeared.  Thus, the 2^nd plaintiff should not be awarded with any loss of earning capacity.  I disagree with Mr Clough on this.  I think the 2^nd plaintiff’s evidence and the medical evidence aforesaid do support her claim for loss of earning capacity.

121.  As to the quantum of her loss of earning capacity, I think an award of $54,000.00 (being 4 months of her monthly income) is reasonable in view of her mild condition, and hence this sum will be awarded to her.

Future loss of earnings

122.  The 2^nd plaintiff claims a sum of $1,417.50 as her future loss of earnings, as she might need to take 3 days off to undergo plastic surgery as suggested by Dr Au.  There is, however, no evidence to suggest that she will not receive any pay during the time when she is undergoing the operation.  In fact, her boss gave her full pay during her 3 month sick leave period.  It is also possible for her to schedule the operation during weekend.  Thus, I am not satisfied that the 2^nd plaintiff is entitled to this claim.

Special Damages

123.  As aforesaid, a sum of $50,397.50 has already been agreed.  The remaining dispute is concerning the 2^nd plaintiff’s loss of her watch.

124.  The 2^nd plaintiff claims the loss of her watch in the amount of $30,500.00.  She states that the model of her watch is Rolex Explorer II and produced a receipt showing the amount for its purchase was $30,500.00.  The 2^nd plaintiff wore the watch in her right hand on the date of the Accident.  After the accident, the 2^nd plaintiff lost both the watch and her helmet (the cost of the helmet was not disputed by the defendant).  After the accident, there was abrasion on the right wrist of the 2^nd plaintiff and the watch disappeared.  The 2^nd plaintiff bought a new watch, a Rolex Daytona, in the amount of $88,000.00 after the Accident.  The 2^nd plaintiff states that she mentioned the lost of the watch when she gave her statement to the police. 

125.  Mr Wong submits that as there were abrasions on the 2^nd plaintiff’s right wrist, it is more probable than not that the watch having been dragged off from her wrist during the collision thereby causing the abrasions, and it is against common sense that the watch was taken off after the accident, since it would protect the skin of the right hand and the 2^nd plaintiff would at most sustain bruise but not abrasions.  In the premises, given the context of a traffic accident and the injuries, one further and most probable conclusion is that the watch was dragged off as it went into contact with the road surface.

126.  Mr Wong further submits that alternatively, it is not necessary for the 2^nd plaintiff to establish that the accident was the sole cause of the lost or damage of the watch, it needs only be established that the traffic accident materially contributed to the damage and the loss of the watch.  In McGhee v National Coal Board [1973] 1 WLR 1, the plaintiff suffered from dermatitis caused by brickdust.  The plaintiff claimed that the factory failed to supply washing facilities, and he could only wash the dust off when he got home.  There was no direct evidence that the plaintiff would not have suffered dermatitis but for his inability to wash his body immediately after work.  It was held that the failure to provide facilities ‘materially contributed’ to the dermatitis. In the premises, the accident did materially contribute to the loss of the watch at the time of the accident.

127.  Although the 2^nd plaintiff was unable to locate the watch or report to the police immediately after the accident as she had lost her consciousness, she mentioned the loss of the watch when she gave her statement to the police.  

128.  Thus, Mr Wong submits that it matters not whether the watch was destroyed or lost, but whether the 2^nd plaintiff was wrongfully deprived of her enjoyment of the property by reason of the accident. The 2^nd plaintiff suffered a complete loss of enjoyment of the watch whether it was destroyed or lost and on this basis the 2^nd plaintiff is laying her claim. The principle is trite that the 2^nd plaintiff ought to be placed into the position he would have been in had he not been deprived of that property.

129.  I do not accept Mr Wong’s submissions in this regard.  His submissions are based on the assumption that the watch was dragged off from the 2^nd plaintiff’s wrist because there were abrasions at her wrist.  However, the abrasions could equally be caused by her contact with the road surface and the watch was removed subsequently after the accident. From the photos, it seems that the area where she had abrasions at her right hand does not correspond with the area where one would normally wear a watch. So it is still possible that she had her watch on during the impact.  There is no expert evidence or any proof that the assumption made by Mr Wong is the only explanation for the loss of the watch.  There is also no evidence that the watch was indeed damaged during the accident.  It is still possible that the watch was removed by someone after the accident or perhaps after admission to the hospital and could not be traced thereafter.  I am not satisfied that the 2^nd plaintiff has adduced enough evidence to substantiate her claim that the accident has caused or materially contributed to the loss of her watch.

130.  No award will therefore be made in respect of the 2^nd plaintiff’s watch.

Future Medical Expenses

131.  Both Dr Au and Dr Nicolson opine that the scars on the 2^nd plaintiff’s hands require further treatments.  In this regard, the 2^nd plaintiff and the defendant agree to the amount as follows: -

132.  However, the defendant disputes with the 2^nd plaintiff on her additional claim of $15,000.00.  Dr Choa and Dr Yu recommend that the use of a tricyclic drug such as Amitriptyline would improve her sleep, relieve her headache and regulate her mood.  Thus, the 2^nd plaintiff claims such future medical expenses in the amount suggested by Dr Choa, ie treatment by a neurologist or a psychiatrist at $15,000.00 over 6 months’ period.  The defendant, on the other hand, suggests that a sum of $9,375 should be adopted after taking into account of Dr Yu’s opinion that a family physician could also do the same job and cost less.

133.  Mr Wong submits that where claims are made for the cost of future medical treatment, the award can be based on the cost of private or first-class treatment, notwithstanding the fact that all treatment up to the date of trial has been in a public hospital (see Choi Sun Hong v China Harbour Enterprise Construction Ltd & Others,HCPI 1048 of 2007).  In the present case, the 2^nd plaintiff has consulted neurologists both in private and public sector during her treatment, it is reasonable for her to continue to receive future medical treatment by a neurologist in private sector.

134.  I agree with Mr Wong’s submission.  I am of the view that $15,000.00 is reasonable and should be awarded.

Tonic food

135.  As aforesaid, the amount of $5,000.00 for tonic food is now agreed by the defendant.

Interest

136.  As in the case of the 1^st plaintiff, the 2^nd plaintiff is entitled to interest on general damages at 2% per annum from the date of the writ, ie 30 April 2011 to the date of assessment.

137.  Likewise, interest on special damages will be at half of the prevailing judgment rate from the date of the accident, ie 26 March 2010 to the date of assessment.

Total award

138.  Thus, the 2^nd plaintiff is entitled to the following amounts: -

CONCLUSION

139.  The damages for the 1^st and 2^nd plaintiffs including interest are therefore assessed accordingly as aforesaid.

140.  Although the plaintiffs are not successful on some of their claims, they are awarded most of their claims.  I do not agree with Mr Clough’s submission that the plaintiffs are exaggerating their claims or that some of the claims are fraudulent.  Some of the claims fail simply because the plaintiffs have failed to adduce sufficient proof or I disagree with Mr Wong’ submissions, but I do not find the plaintiffs dishonest.  Thus, I do not see any reason to strike out all of their claims as submitted by Mr Clough.

141.  Mr Clough’s criticisms on the plaintiffs’ litigation conduct and CJR case management are also unwarranted.  I think the plaintiffs have proceeded with the case just like any reasonable plaintiff would do in the circumstances and they did not intentionally hide any documents to conceal any matters.  The omission or delay in producing some documents does not seem to me to be deliberate so as to prevent the defendant to have a fair trial.  On the other hand, the defendant could have asked for specific discovery if it is necessary to obtain some documents from the plaintiff. Thus, I see no prejudice being done to the defendant.

COSTS

142.  The plaintiffs are entitled to costs against the defendant as they have succeeded on most of the claims.  I therefore grant a costs order nisi that the defendant do pay the plaintiffs’ costs of the assessment of damages with certificate for counsel to be taxed if not agreed.