YEUNG WAI KIT v. POON PAK HO

DCPI2258/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2258 OF 2015

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ASSESSMENT OF DAMAGES

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1.  On 1 Apr 2013, the plaintiff, aged 28, was riding his bicycle (the bicycle) along the left, and the correct, cycling lane of Science Park Road downslope towards Tai Po, when he suddenly found himself facing defendant riding his bicycle along the same lane towards him in the direction of Tai Wai. He immediately rang his bell and reduced his speed to avoid collision but failed (the accident). He sustained injuries, and the bicycle damaged, in the accident and the defendant was later convicted of careless cyclingin Aug 2013.

2.  On 16 Oct 2015, the plaintiff commenced these proceedings against the defendant.

3.  The defendant has not filed any acknowledgment of service nor appeared at any stage of these proceedings at all.

4.  On 11 Dec 2015, interlocutory judgment for damages to be assessed was entered against the defendant in default of notice of intention to defend.

5.  These proceedings came before me for assessment of damages. The defendant did not turn up either. I am satisfied on various affirmations of service that the notice of appointment, the hearing bundle, plaintiff’s opening submissions and list of authorities have all been duly served on the defendant. As Ms Sarah Young appearing for the plaintiff (Ms Young) requested, I decided to proceed with the assessment in the absence of the defendant.

6.  There are 4 main heads of claim the plaintiff made in the Revised Statement of Damages filed on 20 Jun 2016 (RSOD). They will be considered one by one below. No Answer was filed at all.

7.  The plaintiff was the only witness called and he adopted in chief his witness statement dated 18 Sept 2015 (the 2015 statement). Ms Young was given leave to examine him on the latest status of his health, treatments and employment.

8.  The plaintiff has earlier elected not to adduce expert medical evidence at this assessment. Reports of government hospitals as to his treatment and care are adduced as agreed evidence without calling the makers thereof.

Plaintiff’s injuries & treatments

9.  I accept that the plaintiff has suffered the following injuries, and has received the following treatments, as a result of the accident. They are derived from agreed government reports and documents produced before me.

10.  On the day of the accident, the Plaintiff was found to have:

1) bruise on forehead and below right eye;

2) deformed left hand and left ring finger and left little finger (X-ray of left hand showed fracture of proximal phalanx of left ring and left little fingers); and

3) left knee abrasion.

at Accident & Emergency Department of Prince of Wales Hospital (PWH) and he was admitted to neurosurgical ward of PWH.

11.  On the next day i.e. 2 Apr 2013, he consulted the Department of Ophthalmology & Visual Sciences (DO&VS) of PWH. He was diagnosed to suffer from right eye subconjunctival hemorrhage, right periorbital swelling and right infraorbital numbness. CT scan of orbit showed fractured right orbital floor, ethmoid anterior, medial and lateral walls of right maxillary sinuses and right zygoma. He was given oral antibiotics and eye drops.

12.  After suturing of his lip laceration on 2 Apr 2013, the Plaintiff was discharged from PWH on 3 Apr 2013.

13.  He was seen again at eye clinic of DO&VS of PWH on 9 Apr 2013. He had resolving right eye subconjunctival hemorrhage and similar right facial numbness.

14.  On 11th April 2013, he was admitted to the Department of Orthopedics & Traumatology (DO&T) of PWH for left finger fracture and operation and dental surgery. Open reduction and internal fixation of his left 2 finger fractures were done on 16 Apr 2013 after dental surgery (open reduction of maxillary fracture) on 11 Apr 2013. He was discharged on 22 Apr 2013 after a period of physiotherapy and occupational therapy splintage.

15.  The Plaintiff was referred to the Occupational Therapy Department of PWH for splintage for protecting fracture site after operation on 16 Apr 2013 and splints were provided during in-patient phase. All splints were advised to stop in Jun 2013. Throughout treatment from 3 May 2013 to 16 Aug 2013, swelling gradually subsided, scar was not hypersensitive or hypertrophic. Improvement was noted on active motion and only residual pain was reported during gripping by his left hand.

16.  He was also referred to the Department for Physiotherapy of PWH from 30 Apr 2013 to 9 Aug 2013. Physiotherapy in form of ice therapy, electrotherapy, mobilization and strengthening exercise was given to him. After such treatment, there was improvement of plaintiff’s left hand condition. Range of movement was nearly full and power was improved. 

17.  He had also regular follow-up at outpatient clinic of DO&T of PWH. At follow-up on 9 Aug 2013, the fractures healed well. There was mild residual finger stiffness and gripping weakness. Strengthening exercise was continued. Appointment on 1 Nov 2013 was arranged but plaintiff defaulted.

18.  He was seen again at eye clinic of DO&VS of PWH on 9 July 2013. Visual acuity was 20/13 OU with normal anterior and posterior segment examination. He had mild right infraorbital numbness. There was no diplopia with full extraocular mobility.

19.  On 18 Jun 2013, the Plaintiff was once referred to Li Ka Shing Psychiatric Outpatient Clinic for his post-traumatic stress reactions after the accident. He reported to the clinical psychologist of nightmares, poor sleep and avoidance behaviors etc. as a result of the accident but also improving trend on mood. Appointment was scheduled in Sept 2013. He defaulted and there was no follow-up.

20.  The Plaintiff was granted sick leave for about 6 months from 1 Apr 2013 to 4 Oct 2013.

Pain, suffering & loss of amenities (PSLA)

21.  The plaintiff seeks a PSLA award in the sum of $300,000 at para 13 of RSOD.

22.  As he said at para 20 of the 2015 statement, the plaintiff maintained in chief that he mainly suffers today from right facial numbness and residual stiffness and weakness of his left ring and little fingers. Bearing in mind matters in 2013 stated in para 13, 15 to 17 above, I accept such evidence of residual symptoms on the basis that they are mild, if not very mild, by now. Indeed, plaintiff described of gaps as small as 5mm when he bends his 2 injured fingers in full.

23.  Plaintiff also repeated in chief about scar on his upper left lip  said to be 1cm in length. But, having looked at plaintiff at close distance, I find it unnoticeable at all.

24.  As to 4cm and 3cm long scars left on the back of his left ring and little fingers referred to at para 20 of the 2015 statement, they are still noticeable today at close distance by this court as being lighter in color. However, their cosmetic disability, if any, to a middle-aged male like plaintiff is, I think, minimal as opposed to a young female victim. Indeed, plaintiff never saw fit to raise them himself in chief and that is telling how unimportant they are.

25.  The plaintiff further claimed in chief inability to lift heavy objects using his left injured fingers, finger pain felt after such lifting or even seizure at night affecting his sleep and requiring painkiller at times.Having regard to matters in para 16 & 17 above, I accept there is some mild reduction in power for plaintiff’s left injured fingers. But as he elaborated, he encounters such difficulty when he lifts heavy objects like bulky drinking water bottles.

26.  Plaintiff also confirms in chief he no longer attends any follow-up by now. I finds this likely the case since around Sept 2013 having regard to para 15 to 19 above and absence of reference to follow-up in the 2015 statement.

27.  For assessment of PSLA payable to plaintiff, Ms Young referred this court to the following 3 comparable cases, namely: -

1)Lam Ling Leong v Kwok Pang Che, unreported, DCPI 1845/ 2008, H H Judge Yung, 8 Feb 2010, $250,000 awarded;

2) Man King Sing v Fortune Printers Ltd & Others, unreported, DCPI 837/ 2011, H. H Judge Chow, 16 Jul 2012, $300,000 awarded; and

3) Cai Guoping v Yim Hok Wing & Others, unreported, HCPI 494/2013, Deputy Judge Nicholas Cooney S.C., 18 Feb 2015, $250,000 awarded.

28.  Comparing plaintiff’s injuries, impairment and treatments against those of the 3 comparable above, the orthopedic injuries in comparable 1) above is, I think, less minor than those of the plaintiff while the cosmetic disability is more serious, involving scars on body, limbs and face of a male[1] younger than plaintiff. Plaintiff’s injuries are, I think, overall speaking more serious.

29.  The fingers injuries and treatments in comparable 2) above are, I think, similar to those sustained and received by plaintiff. But the victim there[2] was much older than plaintiff and did not suffer from fracture of facial bones. Nonetheless, he was given 302 days (or about 10 months) of sick leave.

30.  In comparable 3) above, save except for finger injuries which feature much in plaintiff’s case, the victim there did suffer from similar facial bones fracture and similar broken teeth like plaintiff. He had also decreased visual acuity over right eye. On top of open reduction & internal fixation, removal of broken teeth and root canal treatment were carried out. He was discharged after 7 days. Both doctors agreed that he had no active orthopedic problems and sick leave was not required. The court found no significant residual symptoms.

31.  Having regard to the aforesaid 3 comparable, I make a PSLA award of $280,000 in plaintiff’s case.

Pre-trial loss of earnings

32.  Ms Young revised plaintiff’s claim on this head to $466,788.5 in her closing address. The calculations are the same to those at para 17 of RSOD save that, at para 17(ii) thereof, it was calculated for 27 months at a residual earnings of $8,000 per month.

33.  Evidenced by copy employment contract (EC) and copy employer’s return of remuneration and pensions to Inland Revenue Department for the year ended 31 Mar 2013 (IR56B) before me, the Plaintiff was, I accept, employed by Hi-Shots (Hong Kong) Limited (Hi-Shots) as a cameraman for the year before the accident and on the day of the accident.

34.  His main duties for Hi-Shots are, he explained and I accept, taking video using video recorder at construction sites as proof of progress though sometimes he also took photos using camera.

35.  The plaintiff claimed at para 26 of the 2015 statement that, if the accident had not happened, he would still be working at Hi-Shots and working as a freelance photographer with monthly salary of around $14,730 or more.

36.  Apart from working for Hi-Shots earning an average of $11,730 per month, the plaintiff claimed working at the same time as a part-time freelance photographer taking pictures for construction sites, weddings and magazines earning about $3,000 per month at para 5 to 7 of the 2015 statement.

37.  Plaintiff claimed he went unemployed as from 1 Sept 2013 until he found in Feb 2015 a job as a casual decorating assistant. At para 25 of the 2015 statement, he says he worked 8 to 10 days a month and managed to earn only $5,000 per month.

38.  In chief, he said he still works today as a casual decorating assistant. His duties are to deliver tools to decorating master and other light jobs assigned to him. He may work as many as 5 days per week or none at all. His daily wages are $600-$800 and his average earnings each month ranges from $8,000 to $10,000.

39.  Having carefully considered them in the round, I do not find plaintiff’s evidence of his post-accident earnings and employment satisfactory in the following respects.

40.  To start with, the EC only provides for a basic salary of $11,000, attendance bonus of $500, and employer’s MPF contribution at the mandatory level of 5% of employee’s salary. No salary receipt, salary statement, bank statement or passbook evidencing alleged level of salary payment from Hi-Shots was produced before me despite plaintiff said he was paid by way of bank transfer.

41.  Nevertheless, the IR56B signed by Hi-Shots reported an annual basic salary of $125,000 and a bonus of $15,750, making a total of $140,750 for the year ended 31 Mar 2013. Divided by 12, that produces an average of 11,730/month claimed for and I am prepared to act on such a monthly earnings figure.

42.  I am, however, not prepared to act on plaintiff’s alleged earnings as part-time freelance photographers. Save his bare assertion, there is no proof, be it document or other witness, of his practicing such part-time job. Even if he was paid in cash as alleged, he produces no receipt given to his customers, no record kept of his cash earnings, and makes no tax return of such earnings. His long working hours stipulated in the EC[3] also cause one to doubt if he could spare time to engage in such part-time job as he claimed, if necessary by applying sick leave from Hi-Shots as he claimed.

43.  The same lack of proof also applies, I think, to plaintiff’s alleged job of, and alleged earnings level from working as, casual decorating assistant between Feb 2015 and today. His average monthly earnings thereof, I note, varied greatly from only $5,000 in the 2015 statement to as much as $10,000 in chief today. Cash payment is again alleged and no salary receipt was produced. And there is no tax return of such cash earnings either. I am doubtful if the plaintiff earns today as little as he claimed from such alleged job and he certainly has an interest to understate the same.

44.  More importantly, there is, I note, no evidence that the plaintiff was physically unable, as a result of the accident, to resume his accident job of cameraman with Hi-Shots beyond his 6-month sick leave period.

45.  I say so because, first, there is no expert medical evidence called to that effect.

46.  Secondly, according to plaintiff in the box, Hi-Shots summarily[4] terminated his employment on 31 Aug 2013[5] not for his inability to resume work as a result of the accident but on account of his alleged “moonlighting”. There is simply no evidence that plaintiff had resumed work with Hi-Shots but failed to do so because of injuries he received in the accident.

47.  Thirdly, while plaintiff allegedly did not find any job, including full-time job of cameraman, from Sept 2013 and Jan 2015, I do not think it likely that it had anything to do with plaintiff’s injuries in the accident.

48.  While there is a claim for loss of earning capacity which is to be decided below, there is, I note, no suggestion by plaintiff that he cannot work at all due to his injuries in the accident. Indeed, the minor residual symptoms he suffers today in no way, one thinks, can cause him unable to work at all.

49.  As such, had plaintiff taken reasonable steps to mitigate his loss, including approaching Labour Department for job referral (but he didn’t), he should, I think, be able to find alternative job(s) during this long period of alleged unemployment.

50.  The plaintiff has, as he said in the box, worked as a garage repairing apprentice, warehouseman and construction site worker before joining Hi-Shots. In particular, he has worked as warehouseman for as long as 4 years from 2007 to 2011, with monthly pay exceeding $10,000. This court seriously wonders whether he had ever tried finding full time job(s) of warehouseman after leaving Hi-Shots as he claimed and, if he tried at all, why he failed to secure one such job for difficulty to raise heavy objects as he claimed.

51.  Among reasons the plaintiff gave for not finding jobs other than those as he did, one of them is the injuries he had in the accident. But, save for asserting that part-time photographing jobs he did previously stopped entirely after the accident as he missed booked appointments due to his injuries, he never elaborated or explained how his injuries affected his efforts to find jobs. He gave no example, say, of failed interview, failed work trial, or failed part-time photographing job, due to his injuries. I simply cannot believe in such un-particularized bare assertion of plaintiff.

52.  More likely than not, if the plaintiff ever went unemployed at all during such long period of time, it was, I think, due to his limited F.3 educational level and his lack of qualification or training in photography as he explained at para 22 of the 2015 statement, and also, as he admitted in the box, his focusing on finding similar job of full time photographer against such background.

53.  Again, more likely than not, I think plaintiff managed to join Hi-Shots in the first place in 2011[6] “upon his friend’s introduction” as he said at para 4 of the 2015 statement despite he was not trained or qualified for it. Therefore, such full time jobs of photographer he located after leaving Hi-Shots, as he said in chief, pay him only at minimum wage such that he did not find them acceptable (in much similar way he rejected searching for full time job of construction site workers during this period as he found such job too strenuous for him).

54.  Accordingly, plaintiff’s alleged unemployment for such alleged long period of time does not, I think, assist his claim for pre-trial loss of earnings.

55.  All in all, I think the plaintiff should only be compensated for such pre-trial loss of earnings he has suffered during the 6-month period of sick leave granted to him, giving credit for $61,210 sick leave pay he received from Hi-Shots i.e. $11,730 x 6 months x 1.05 - $61,210 = $12,689.

Loss of earning capacity

56.  A sum of $100,000 was claimed for this head at para 19 of RSOD. It is alleged that the plaintiff has suffered real disadvantage in the labour market from working as a photographer as a result of injuries and impairment he suffered in the accident.

57.  Due to his limited education, the plaintiff is likely, I think, to have limited choice of occupation confined to blue collar jobs. It is self-evident that he focused to work as photographer and will try to do so in future. Reduction in hand dexterity and power likely poses, I think, a real risk to his working prospects in such limited jobs.

58.  While the plaintiff is right-hand dominant, he explained in the box, and I accept, that he needs to use his left ring finger for focusing while using his right hand to hold steady the video recorder or camera. That occurs to me, and I find it, a real handicap to his working as a photographer due to his injuries in the accident. Had he found such a job, he may also be laid off more easily than an able-bodied.

59.  However, such risk does not occur to me substantial considering his working record, the mild residual symptoms he now suffers and the difficulty or inconvenience caused to him by one injured finger alone. All things considered, I think it proper to award 6 months of accident earnings to him by way of an award of loss of earning capacity i.e. $11,730 x 6 months = $70,380.

Special damages

60.  The particulars of this head of claim, totaling $21,625, are found at para 20 of RSOD.

61.  First, I would allow the total sum of $693 claimed for taxi fare. They were, I find, reasonably incurred as a result of the accident and properly supported by receipts before me.

62.  For medical expenses, I award $1,450 public ward fee at PWH and $2,248 medical expenses incurred at PWH as claimed. Both are fully supported by receipts before me.

63.  The plaintiff added in chief he broke one upper molar in the accident and was advised to seek restoration in private sector, which he did by consulting Dr Wong Hiu Ching of Healthy Smile in July 2013.  I accept such evidence and award the sum of $650 set out in the invoice produced.

64.  I also accept plaintiff’s evidence that he consulted Dr Tsang Yuen in July 2013 for treatment of eczema caused by prolonged splintage over his left fingers and I also award the sum of $230 claimed on the receipt before me.

65.  Moreover, I award $274 for pain relief products purchased by plaintiff at PWH evidenced by receipts before me.

66.  Not a single receipt of tonic food was produced to prove the sum of $10,000 claimed. Having regard to plaintiff’s evidence of their consumption which I accept, I am minded to award a nominal sum for this head and I award $2,000.

67.  I accept from plaintiff that the bicycle became a total loss as a result of the accident. I award $3,480 for its loss as shown by its purchase receipt before me. I do not see fit to grant another $1,200 for lighting system and speedometer allegedly installed on it. No documentary proof is put before me to prove such alleged installations or their alleged amounts.

68.  The plaintiff also gave evidence that he paid $1,400 to store the bicycle for 4 months (after collecting it from police) upon advice of Legal Aid Department. While it was a total loss, I see no reason for him to pay for such storage on the receipt before me except for legal advice he received (presumably, the bicycle was kept as real evidence in case liability was disputed) and the storage period of 4 months sounds reasonable to me in view of defendant’s conviction 4 months after the accident. I also allow this sum of $1,400 in full.

69.  The total amount of special damages I award therefore comes up to $12,425.

Summary

70.  Accordingly, the various awards I make in favour of plaintiff are as follows:-

1) PSLA in sum of $280,000;

2) loss of earning capacity in sum of $70,380;

3) pre-trial loss of earnings in sum of $12,689; and

4) special damages in sum of $12,425;

5) a total of $375,494.

Disposition

71.  Hence, I order final judgment in plaintiff’s favour against defendant in the sum of $375,494.

Interest

72.  I further order defendant to pay plaintiff interest on general damages totaling $350,380 (i.e. PSLA & loss of earning capacity) at 2% p.a. from the service of the writ to the date of this assessment, and also to pay interest on $25,114 (i.e. pre-trial loss of earnings and special damages) at 4% p.a. from the date of the accident to the date of this assessment as Ms Young sought.

Costs

73.  As to costs, I make an order nisi that the defendant shall pay plaintiff the costs of assessment of damages, including this assessment, to be taxed if not agreed and that plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations, such orders are to become absolute failing any application in writing to vary the same within 14 days from the date of this assessment.

74.  Finally, I thank Ms Youngfor her assistance at this assessment.