TANG CHI KEUNG v. MUNG KA WAI

HCPI 697/2012

[2018] HKCFI 1685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 697 OF 2012

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ASSESSMENT OF DAMAGES

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Case Summary

1.  This is a personal injury claim arising out of a traffic incident occurred on 18 August 2011 (the “Incident”), when the plaintiff was travelling as a backseat passenger in a private car.  In the Incident, the car carrying the plaintiff was knocked by a jeep driven by the defendant at the material time.  As a result of the Incident, the plaintiff suffered personal injuries.

2.  The plaintiff commenced these proceedings on 11 September 2012 against the defendant.

3.  By a consent order dated 4 October 2012 interlocutory judgment on liability was entered against the defendant in favour of the plaintiff with damages to be assessed.

4.  On 5 March 2013, the Court gave expert directions for the parties’ expert, (Dr Lam Chi Keung, Johnson (“Dr Lam”) for the plaintiff and Dr Arthur Chiang (“Dr Chiang”) for the defendant) to prepare joint medical report.  Dr Lam and Dr Chiang prepared a joint report dated 18 May 2013 (the “Joint Report”). 

5.  On 4 August 2015, the Court granted leave for the parties to obtain a supplemental joint report from the aforesaid experts. The experts prepared a joint supplemental report dated 28 September 2016 (the “Supplemental Report”).

6.  By orders dated 5 March 2013 and 20 December 2016, the Court granted leave for the parties to adduce the Joint Report and the Supplemental Report respectively as evidence at the assessment of damages hearing without calling the makers to give oral evidence.

7.  Only the plaintiff testified at the assessment hearing.  The defendant elected not to call any factual witness.

The parties’ case

8.  In the amended revised statement of damages filed herein on 21 December 2016, the plaintiff claimed the following amounts under various heads of damages against the defendant:

1)   general damages for pain, suffering and loss of amenities (“PSLA”) in the sum of $800,000.00;

2)   loss of pre-trial earnings and MPF in the sum of $1,736,829.60;

3)   loss of future earnings and MPF in the sum of $804,528.27;

4)   loss of earning capacity in the sum of $144,000.00;

5)   costs of future medical expenses in the sum of $480,000.00; and

6)   special damages in the sum of $70,000.00.

9.  In the amended answer to the amended revised statement of damages (leave to amend the answer was granted on the first day of this assessment hearing), the defendant contended that the plaintiff was only entitled to the following amounts for his damages claimed:

1)   PSLA in the sum of $150,000.00;

2)   loss of pre-trial earnings and MPF (denied but if allowed) in the sum of $404,196.65 or at most $555,816.60;

3)   loss of future earnings and MPF (denied but if allowed) in the sum of $50,725.44;

4)   loss of earning capacity (denied but if allowed) in the sum of $16,000.00;

5)   costs of future medical expenses in the sum of $5,000.00; and

6)   special damages in the sum of $45,000.00.

10.  At the assessment hearing, the parties agreed that the amount of special damages to be awarded to the plaintiff be in the sum of $46,000.00.  As such, I only have to adjudicate on the plaintiff’s other items of claim.

The plaintiff’s medical treatment

11.  After the Incident, the plaintiff was sent to the Accident and Emergency Unit (the “A&E”) of United Christian Hospital (“UCH”) for treatment.  According to the report prepared by the A&E of UCH on the plaintiff’s attendance on the date of Incident (ie 18 August 2011) (p 215 of Hearing Bundle I), the plaintiff complained of right shoulder, right neck, back and left abdominal pain and left forearm numbness. 

12.  Medical examination revealed tenderness over right neck, upper back, left side of abdomen and numbness over left medial hand and forearm.  X-ray of neck and thoracic spine showed no fracture.

13.  The plaintiff was hospitalized for 5 days.  Upon admission to the Department of Orthopaedics & Traumatology (the “O&T”) of UCH, the plaintiff also complained of neck and back pain and paraethesia over left hand.  The powers of both of his upper and lower limbs were found in full (p 230 of Hearing Bundle I).

14.  During his stay in UCH, the plaintiff was observed walking unaided in ward.  He was treated by analgesics and physiotherapy and discharged on 23 August 2011.

15.  After discharge from UCH, the plaintiff sought further treatment from St Paul Hospital (“SPH”) on 24 August 2011.  Clinical examination revealed tenderness over C6/7 spinous processes and over left trapezius muscle.  There was decreased sensation over left C8 dermatome and especially the ulnar 1½ digits of the left hand.  The range of motion of his neck was quite satisfactory.  There was no decrease for the motor power and no myelopathy hand signs.  The jerks of the upper limb and lower limb were essentially quite normal.  There was very mild tenderness over L4/5 spinous processes.  Straight leg raising of the left and right side were full and there was no lower limb neurological deficit.

16.  The plaintiff was given physiotherapy and anti-inflammatory drug treatment at SPH.  His neck and back pain subsided with physiotherapy.  He was discharged from SPH on 27 August 2011.

17.  Subsequently, the plaintiff underwent three operations, namely (1) anterior spinal fusion at C6/7 on 12 October 2012 (the “C6/7 Operation”); (2) right hip arthroscopy on 17 January 2014 (the “Hip Operation”); and (3) anterior spinal fusion at L5/S1 on 8 September 2015 (the “L5/S1 Operation”). 

18.  He attended follow-ups at UCH and received further physiotherapy treatment at Tseung Kwan O Hospital (“TKOH”).

19.  The plaintiff claimed that he sustained injuries to his right shoulder, neck, low back and right hip in the Incident.  He also claimed that the L5/S1 Operation had caused his urological problems. 

20.  MRI scan of the plaintiff’s cervical spine taken on 24 August 2011 revealed moderate multi-level degeneration of the cervical spine with small marginal osteophytes, mild desiccation of all cervical discs, slight exaggeration of cervical lordosis, mild narrowing of C4/5, C5/6 and C6/7 disc spaces.  Small posterior osteophyte with mild impression of the thecal sac was noted at all levels except C6/7 where marked impression of thecal sac was noted with small posterior osteophyte.  Marked spinal stenosis was also noted at C6/7.

21.  X-ray of the plaintiff’s cervical spine taken on 24 August 2011 revealed spondylotic change, slight C4/5, C5/6 and C6/7 retrolisthesis, degenerative change in the facet joints and no prevertebral soft tissue swelling.

22.  X-ray of the plaintiff’s lumbar spine on 25 August 2011 revealed degenerative change in the lower lumbar spine with marginal osteophytes seen at multiple lower lumbar levels.

23.  MRI scan of lumbar spine on 26 August 2011 revealed mild multi-degeneration of lumbar spine with small marginal osteophytes, mild desiccation of L3/4, L4/5 and L5/S1 discs, moderate narrowing of L5/S1 disc space, mild facet degeneration, slightly irregular inferior end-plate of L5.  At L5/S1, there was medium size disc bulge touching both S1 nerve root sheaths.  L5/S1 neural foramina were moderately compromised bilaterally by the bulge and ligamentum flavum hypertrophy.

24.  CT scan of the plaintiff’s cervical spine taken on 28 September 2011 revealed cervical spondylosis affecting mid and lower cervical spine.  Minimal posterior displacement of C4 on C5, posterior disc protrusion of calcification of C6/7, and ossification of left C7/T1 ligamentum flavum were suspected.  Right C6/7 intervertebral foramen appeared narrowed.

25.  On 12 October 2012, the C6/7 Operation using cage and demineralized bone matrix was performed on the plaintiff.  He was put on neck collar after the operation.

26.  At the follow-up on 29 October 2012, objective examination revealed decreased in neck pain, left hand numbness subsided, improvement of power and clumsiness subjectively.  No report of back pain was recorded. (p 138 of Medical Records Bundle 1)

27.  Prior to the follow-up on 10 December 2012, the plaintiff’s complaints at the follow-ups were persistent numbness of left upper limb, neck pain and back pain.

28.  At the follow-up on 10 December 2012, the plaintiff complained of right side buttock pain which affected his sleep. Medical examination showed no lower limb weakness or numbness. (p 139 of Medical Records Bundle 1)

29.  At the follow-up on 21 January 2013, the plaintiff mainly complained of back pain with right buttock and thigh radiation pain. (p 140 of Medical Records Bundle 1)

30.  MRI scan of the plaintiff’s lumbar spine done on 15 March 2013 showed L5/S1 spondylosis without neural tissue compression.  There was facet joint degeneration at L5/S1.

31.  At the follow-up on 27 March 2013, the plaintiff complained of mainly back pain with right buttock pain and also right hip pain. (p 141 of Medical Records Bundle 1)

32.  At the follow-up on 19 June 2013, the plaintiff reported on and off left hand residual numbness and right side back pain. There was minimal neck pain.  The plaintiff also complained of right hip pain on movement.  There was no lower limb weakness and numbness.  Physical examination revealed non-tenderness on neck. (p 142 of Medical Records Bundle 1)

33.  The plaintiff received treatment at the arthroplasty clinic for his right hip pain.  X-rays, CT scan and MRI with arthrogram were performed in June, October and November 2013.  The MRI scan taken on 27 November 2013 showed osseous bump at head-neck junction, mild subchondral sclerosis and osteophyte at the superior aspect of acetabulum, and mild femoroacetabular impingement with no hip effusion.

34.  On 17 January 2014, the plaintiff underwent the Hip Operation.  The right hip arthroscopy revealed cartilage damage and labral injury of the right hip.  Removal of the bump at the femoral head neck junction, rim trimming and labral repair was performed.

35.  At the follow-up on 11 February 2014, it was observed that the plaintiff walked with a stick.  He complained of mild hip pain and numbness over the distribution of the pudebdal nerve after the Hip Operation. (p 149 of Medical Records Bundle 1)

36.  The plaintiff kept complaining about back pain at the follow-ups.  Further MRI of the lumbar spine done on 14 July 2014 showed loss of disc height at L5/S1, degenerative spondylosis and osteophytosis at L4 and L5.  It also showed dessicated disc and diffuse bulging disc at all levels between L3 and S1.  Ligamentum flavum facet joint hypertrophy were present.  Reduced lumbar lordosis was observed.

37.  On 8 September 2015, the plaintiff underwent the L5/S1 Operation.  After the operation, he was requested to wear a corset and was discharged on 14 September 2015. 

38.  When the plaintiff attended follow-ups at UCH and physiotherapy treatment at TKOH, he was observed to be able to walk unaided except at the follow-up on 11 February 2014 when he attended the follow-up with a stick.   

39.  At the first physiotherapy session at TKOH on 31 October 2011, the plaintiff complained of right side neck pain with left upper limb numbness and back pain.  Tenderness at C6/C7 level, L4/L5 level and right buttock region was noted on palpation. Objective examination revealed limitations in neck and trunk motion except right side flexion and right rotation of trunk which were in full range.  Left rotation of trunk was also in full range but with mild pain.  The sensation was 50% decrease in left upper limb.  Straight leg raising was full on left side and 60 degrees with pain on right side.  The powers in four limbs were full. (pp 223-225 of Hearing Bundle I)

40.  On 19 August 2011 and 23 July 2012, the Physiotherapy Department of UCH assessed and found the plaintiff’s right hip with normal power in the muscle chart (p 431 of Medical Records Bundle 2 and p 345 of Medical Records Bundle 1). 

41.  From 31 October 2011 to 10 January 2014, the plaintiff attended 80 physiotherapy sessions.  At the physiotherapy session on 25 March 2013, the plaintiff complained of back pain with right hip radiating pain (p 32 of Medical Records Bundle 1). 

42.  From 6 February to 13 October 2014, the plaintiff attended 36 physiotherapy sessions for rehabilitation of right hip, neck pain and low back.  At physiotherapy session on 29 September 2014, it was recorded that the plaintiff walked unaided with no limping.  He could squat full range without upper limb support.  (pp 586-588 of Medical Records Bundle 2) 

43.  From 14 October 2015 to 1 March 2016, the plaintiff attended 14 physiotherapy sessions for rehabilitation of L5/S1 disc. 

44.  Sick leave was granted to the plaintiff from 18 August 2011 to 22 November 2016 intermittently for 1,857 days.

2010 Accident

45.  In the course of this litigation, it was found that the plaintiff had encountered a prior traffic accident in September 2010 (the “2010 Accident”).  There was uncertainty as to whether the 2010 Accident occurred on 11 or 18 of September but this uncertainty has no bearing on this assessment exercise. 

46.  The plaintiff attended the A&E of UCH on 14 January 2011 for treatment (p 233 of Hearing Bundle I) when he complained of neck pain, left upper limb numbness and low back pain.  Physical examination showed tenderness over his neck and low back muscle.  He was prescribed with painkillers and granted sick leave for 2 days.  He was further referred to the O&T of UCH for further management. 

47.  No evidence had been adduced on further medical treatment received by the plaintiff after 14 January 2011.  I take it that the plaintiff had not sought further medical treatment in respect the 2010 Accident.  

Evidence of Medical Experts

48.  The plaintiff was assessed by the parties’ medical experts on 21 March 2013 (the “2013 Assessment”) and 7 April 2016 (the “2016 Assessment”), ie about 1.5 years and 4.5 years after the Incident.  The experts issued the Joint Report and the Supplemental Report.  The defendant had taken a surveillance video on the plaintiff in August 2013 and the video was made available to the experts before they prepared the Supplemental Report. The experts had also been informed of the 2010 Accident before the 2016 Assessment.

49.  At the 2013 Assessment, the plaintiff complained about pain over right low back and gluteal region, mild neck pain, occasional headache, occasional and mild right shoulder pain and mild left upper limb numbness involving only the left little finger and base of left little finger. His main complaint was low back pain which awakened him about three to four nights every week.

50.  At the 2016 Assessment, the plaintiff complained to the experts that he still had right low back pain, right hip pain and neck pain all the times.  The right low back pain would get worse at night and with poor posture.  Walking for 15 minutes and lying on the right side for a long time would induce right hip pain.  He had to take analgesics.  The plaintiff also reported numbness over the ulnar two fingers and ulnar half of left hand and occasionally the ulnar border of forearm up to elbow.  The numbness would get worse when the neck pain got worse.  He also had urinary incontinence and problem of urine stream deviation after the L5/S1 Operation in September 2015.

51.  The experts agreed that the plaintiff suffered soft tissue injury to the neck, the low back and the right shoulder.  Both experts agreed that mild to moderate degenerative changes noted at the cervical spine and the lumbar spine of the plaintiff were likely to be pre-existing. 

52.  Dr Lam opined in the Joint Report that based on evidence available, the plaintiff was rather asymptomatic in the neck/back before the Incident.

53.  Dr Chiang accepted in the Joint Report that the plaintiff’s neck condition was asymptomatic before the Incident on the basis that there were no documented recordings of treatment history for neck symptoms and that the plaintiff described that there were no symptoms before the injury. 

54.  The experts expressed the above views without knowing that the plaintiff had in fact received treatment to his neck and back pain in January 2011 due to the 2010 Accident.  The plaintiff did not disclose his neck/back’s previous injuries and treatment to the experts at the 2013 Assessment.

55.  In the Joint Report, both experts agreed that at the time of the 2013 Assessment, the plaintiff’s neck/back injury had reached maximal medical improvement and further surgery was not required for the plaintiff’s injuries sustained in the Incident. 

56.  The experts expressed their views on the injuries claimed by the plaintiff on different parts of his body, namely, the right shoulder, the neck, the low back and the right hip.  I shall discuss their views in more details in the later part of this decision. 

57.  Dr Lam opined in both the Joint Report and the Supplemental Report that the duration of sick leave granted by the treating doctors to the plaintiff was appropriate.  He was of the view that the plaintiff might be able to return to his previous jobs as a factory owner or some kind of administrator but he would probably find travelling by long haul bus more tiring and uncomfortable for his neck and back.

58.  In the Joint Report, Dr Chiang opined that the sick leave should end by the end of December 2012.  In the Supplemental Report, Dr Chiang opined that if the Hip Operation was accepted as part of the injuries sustained in the Incident, the plaintiff’s sick leave could end by about July to September 2014.  Dr Chiang considered that subsequent sick leave in 2014 granted to the plaintiff in respect of his back symptoms were not related to the injuries sustained by the plaintiff from the Incident.

59.  Dr Lam opined in the Joint report that the neck condition of the plaintiff should carry 15% whole person impairment while his back condition should carry 5%.  Pre-existing condition should account for 15% for his neck and back condition.  The right shoulder injury should carry 0.5% impairment of whole person.  In the Supplemental Report, he revised his assessment in respect of the back injury to 13% whole person impairment and opined that the right hip condition should also carry 2%.  He maintained his view on apportionment of pre-existing condition which should only apply to the plaintiff’s neck and back condition.

60.  Dr Chiang estimated in the Joint Report that the total permanent impairment of whole person in respect of neck and low back should be 15% and 2% respectively and half of the percentage of the total impairment of the whole person was contributed by pre-existing degeneration.  In the Supplement Report, Dr Chiang kept his previous assessment in respect of neck and low back but assessed that the plaintiff’s right hip condition should also carry 3% of the total impairment.  Dr Chiang took into account the 2010 Accident and the pre-existing degeneration to conclude that the total impairment of the whole person in respect of neck, low back and right hip should be revised to 6%, 1% to 2% and 2% respectively with the overall being 9% to 10%.

61.  At the time of the 2016 Assessment, Dr Lam opined that the plaintiff’s neck/back/right hip injury had reached maximal medical improvement and further treatment for the plaintiff was not required.

62.  Both experts agreed that the plaintiff should be independent in activities of daily living.  In the Joint Report, Dr Lam opined that the plaintiff should be able to return to sports like cycling.  In the Supplemental Report, Dr Lam opined that the plaintiff should be able to return to sports like cycling or swimming.

Evidence of the plaintiff

63.  The plaintiff testified at the assessment hearing and called no other factual witness.

64.  The Plaintiff adopted his witness statement dated 30 May 2015 (the “Witness Statement”) and his supplemental witness statement dated 21 July 2017 (the “Supplemental Statement”) as part of his evidence-in-chief.

65.  The plaintiff was born on 19 April 1955.  He was aged 56 at the time of Incident and aged 62 at the time of the assessment hearing.  Before the Incident, he was a businessman engaged in plastic trading and needed to travel to the Mainland for his business.  In the statement of damages, the revised statement of damages and the amended revised statement of damages as well as the Witness Statement, the plaintiff all along stated that he traded garments.  Only at the assessment hearing, Mr Lin for the plaintiff told this court that the plaintiff’s trade was in fact plastic.  The plaintiff also confirmed this in the Supplemental Statement.

66.  In the Witness Statement, the plaintiff said that after the Incident he immediately felt dizzy, headache, neck pain, waist pain and numbness over the whole body.  Later, he felt very painful at his right buttock, low back and neck.  He was sent to UCH for treatment.  At the hearing he said that he had reported pain at his neck, right hip, right low back and spine to the treating doctors at UCH.  He was hospitalized for 5 days at UCH and was discharged on 23 August 2011.

67.  After he was discharged from UCH, he still felt painful at his neck, low back and right shoulder.  As such, he sought further treatment from SPH on 24 August 2011.  He was hospitalized at SPH for 4 days.

68.  He attended follow-up treatment at UCH for his neck and low back pain.  He was advised to take the C6/7 Operation which was done on 12 October 2012.

69.  He also received physiotherapy treatment at TKOH.

70.  When the plaintiff signed the Witness Statement on 30 May 2013, he complained that he still felt pain at his neck, back and right shoulder.  He also had numbness at his upper limbs.

71.  Because of his neck pain, he had to take rest 3 to 4 times a day.  Each time, he had to rest for 30 to 45 minutes.  Because of pain at his back and right shoulder and numbness at upper limbs, he was unable to lift heavy object.  He also had to change his posture regularly.  The pain at his hip joint and ischium had affected his walking posture.  He walked with splayfoot and could not walk or stand for long.  Trot or stride and long-time walking would aggravate the pain at his back, hip joint and ischium.  His back pain would extend to his upper back and ribs.  The pain had affected his sleep and his work efficiency.  He was unable to undertake long journeys to travel to the Mainland to work which caused him ceasing his business. 

72.  At the assessment hearing, the plaintiff still complained of pain at right shoulder, right low back and right hip as well as numbness at spine, left forearm and hand.

73.  The plaintiff stated in the Supplemental Statement that the business of his company was to take orders in Hong Kong and to arrange for production by Chinese factories.  As such, he had to visit the factories in the Mainland to check samples and to do quality control.  He had to travel to the Mainland frequently.

74.  The plaintiff stated that he did not go to work in the Mainland after the Incident.  Since the Incident, he had been selling the moulds and stock in trade of his company (ie Tony Company) only.  In the Supplemental Statement the plaintiff stated that after the Incident he had thought about employing staff to assist him to run the business of Tony Company but was unable to find even part-time staff to assist him.  After selling the moulds and stock, Tony Company ceased business altogether.

75.  Under cross-examination, the plaintiff admitted that he had travelled to China more often after the Incident than before.  He explained that this was because he had to dispose of his stock in trade and moulds.  He estimated that about 10% to 20% of his travelling was to deal with disposal of moulds.

76.  He started to work as a part-time driver in December 2015.  From December 2015 to March 2017, he earned $109,830.00 ie about $6,864.00 each month on average.  In the Supplemental Statement the plaintiff stated that he planned to work as part-time driver until retirement at the age of 65.  However, at the assessment hearing, the plaintiff said that he had not thought about retirement before.

77.  He said that after the L5/S1 Operation in September 2015, he started to have urinary incontinence problem.  He was referred to the urology department of TKOH for treatment.  The diagnosis was neurogenic bladder.

78.  The plaintiff stated in the Witness Statement that before the Incident, he was fit and healthy.  He did not suffer from any back or neck pain.  He would participate in various spots including swimming, playing football and basketball, cycling and horse riding.  He had ceased all these activities after the Incident.  The pain even affected his watching ball games at home.

79.  As long-time walking would aggravate his neck pain and back pain, he stayed at home most of the time which had greatly affected his social life.  The neck pain and low back pain also affected his daily activities such as teeth-bushing and hair-washing which would involve movement of neck or low back.

80.  In cross-examination, the plaintiff agreed that he was living at the 2^nd floor and top floor of a village type house.  He had to walk up and down stairs at home.  He also agreed that he had not mentioned in his evidence that he had difficulties in doing so.

81.  The plaintiff also agreed under cross-examination that he could walked slowly for two to three hours without taking rest since August 2013. 

82.  The plaintiff said that his monthly earnings had dropped from about $23,484.00 in August 2011 to about $12,000.00 in March 2012. After he finished the orders of his company at hand in November 2011, he ceased his business.

83.  The plaintiff said that his treating doctor recommended him to undertake facet injection surgery to relieve his back pain. Such operation and follow-up treatment would cost about $300,000.00 in private hospital.

84.  The plaintiff said that the medical treatment only provided mild relief to him and he still suffered from pain over the back of his neck and right shoulder.  He also had numbness over his left upper limb (ie medial elbow, medial hand and medial two fingers).

85.  After the C6/7 Operation in October 2012, the plaintiff agreed that his neck pain had improved but still complained about back pain with right buttock and thigh radiation pain as well as numbness over left hand.

86.  The plaintiff said that his working efficiency was adversely reduced after the Incident as he had experienced dull aching and easy tiredness over his neck and lower back.  He had to change sitting and standing postures in order to relieve his neck pain and lower back pain.  The neck pain and back pain also distracted his concentration.

87.  The plaintiff said in his oral evidence that he suffered no injury from the 2010 Accident.  He attended the A&E of UCH on 14 January 2011 only upon advice from his insurance broker to protect his interest.

The surveillance recording

88.  The defendant produced surveillance report on the plaintiff’s activities on 19 and 25 August 2013.

89.  An investigation report and a research report both date 5 September 2013 prepared by Verity Consulting Limited and a disc of surveillance video were included in the agreed Hearing Bundles for the assessment of damages hearing.  The same had been made available to the experts at the 2016 Assessment.  Part of the video was played during the assessment hearing and the plaintiff was examined in respect of the video.    

90.  The video recordings showed that on 19 August 2013 the plaintiff reading newspaper or walking while talking on the phone.  He moved his neck and head without signs of discomfort.  He walked up and down stairs without holding the handrail.  He moved his waist while walking to avoid contact with the kid walking towards him.

91.  On 19 August 2013, the plaintiff was observed to have stayed out of home for more than 12 hours.  The plaintiff also admitted that he was able to walk for 2 to 3 hours on that day.

92.  The video recordings showed that as at 19 August 2013 the plaintiff could walk and eat normally without showing signs of discomfort.  However, I have to bear in mind that the video only showed about 15 minutes of the plaintiff’s activities in a long day of 12 hours.  I find the video recordings of limited value for this assessment.  

Discussion

Assessment on the plaintiff’s evidence

93.  The plaintiff was the only factual witness testifying at the hearing.  I bear in mind that in a case of this nature, it is not uncommon for a claimant to exaggerate his injury to a certain degree (not amounting to malingering) in order to get a better award and a claimant will not be discredited solely on that ground.  However, for reasons stated below, I do not find the plaintiff a reliable witness.

94.  Despite the statement of truth signed by him in the statement of damages, the revised statement of damages, the amended revised statement of damages and the Witness Statement, the plaintiff did not state his trade correctly.  I see no reason for the plaintiff to lie about his trade but this did show that the plaintiff did not pay serious attention in signing court documents even when he was required to sign statement of truth to verify the content of the documents.  In fact, the plaintiff admitted under cross-examination that he did not read the Witness Statement carefully before signing the same.

95.  In the Witness Statement, the plaintiff stated that his injury had caused difficulties for him to travel to the Mainland for his business.  The plaintiff tried to paint a picture showing that he was unable to travel to China after the Incident because of his injuries sustained in the Incident to link the cessation of business of Tony Company to the Incident.  However, he admitted under cross-examination that he had in fact made more business trips to the Mainland in the year after the Incident (when compared with the previous year) to wind-down his business.

96.  In the Witness Statement, the plaintiff said that he had ceased working after completing his orders at hand in November 2011 without disclosing that he in fact continued to take new orders until early 2012.

97.  In his various statements of damages and witness statements, the plaintiff did not mention receiving income for inspecting garments for his friends.  Under cross-examination, the plaintiff admitted that he had received about RMB10,000.00 to RMB20,000.00 for such works in November and December 2011, ie after the Incident.  He tried to conceal part of his income earned after the Incident and the fact that he was still able to continue not only his own business but also his side business after the Incident.

98.  In the Witness Statement he stated that he planned to retire at the age of 65 but at the assessment hearing the plaintiff said that he had not thought about retirement before and that he would work to at least 70.

99.  In the Witness Statement, the plaintiff did not disclose the 2010 Accident but expressly stated that he did not have any accident previously.  The plaintiff explained that he did not remember the 2010 Accident when he signed the Witness Statement.  When the plaintiff attended the 2013 Assessment, he also told the experts that there was no previous injury or pre-existing pain for his neck or back before the Incident.  The plaintiff explained that this might be because his memory was affected by the C6/7 Operation.  The plaintiff’s said explanation was not supported by any medical evidence.  I find his explanation incredible. 

100.  The plaintiff said that he did not suffer any injury in the 2010 Accident and yet attended the A&E of UCH four months after the 2010 Accident for treatment of neck and back pain.  His explanation for attending such medical treatment was again incredible.  He said that it was done upon advice of his insurance broker to protect his interest.  He said that he was told by the insurance broker to do that on the next day after the 2010 Accident.  However, the plaintiff did not do that until four months after the 2010 Accident.  He was unable to tell the Court what interest he wanted to protect and how such interest could be protected by attending medical treatment four months after the 2010 Accident.  I find that the plaintiff simply wanted to conceal the 2010 Accident which was occurred just 11 months before the Incident and to conceal the fact that he had attended the A&E of UCH for treatment for neck, left upper limb and low back pain just seven months before the Incident.

101.  His evidence on his physical conditions was also inconsistent with the contemporaneous documents.  He said that he did not suffer any injury in the 2010 Accident.  Yet the records kept by the A&E of UCH recorded that he complained of neck, left upper limb and low back pain to the treating doctor on 14 January 2011 (see para 46 above). 

102.  The plaintiff said that when he was sent to UCH on the date of the Incident, he had told the treating doctors that he had right hip pain.  This was not supported by the records kept by both the A&E and the O&T of UCH which did not record the plaintiff having reported right hip pain (pp 215 and 236-237 of Hearing Bundle I).  In his statement made to the police on 2 September 2011, he also only mentioned great pain in the right side of his waist and his neck and left arm numbness (pp 354-355 of Hearing Bundle II).

103.  The above show that the plaintiff had tried to cover up evidence which he considered might adversely affect his claim herein. He changed his evidence to suit his story and thought that he could easily explain away the inconsistency by shifting the blame to others (such as the treating doctors) by suggesting that they had not recorded accurately or fully what he had told them or by saying that he did not notice the content of documents when signing.  I find that the plaintiff was not a reliable witness and shall treat his evidence with caution.

Injuries claimed by the plaintiff

104.  The plaintiff claimed that he had suffered injuries to various parts of his body, namely, the right shoulder, the neck, the low back and the right hip.  The plaintiff also complained of urological problems.  I shall discuss them one by one below.

105.  The defendant took issue on the pre-existing condition of the plaintiff caused by degeneration and the 2010 Accident.

Pre-existing condition

106.  The plaintiff had pre-existing degenerative changes at his neck/low back/right hip before the Incident.

107.  The experts noted degenerative changes at the plaintiff’s cervical spine, lumbar spine and right hip.  They agreed that such changes were likely to be pre-existing.

108.  The defendant also raised the issue of the plaintiff having encountered the 2010 Accident and had attended UCH on 14 January 2011 for neck pain, left upper limb numbness and right low back pain. 

109.  The plaintiff insisted in his oral testimony that he suffered no injury from the 2010 Accident and he attended the A&E of UCH only to protect his interest upon advice from his insurance broker.  I find such evidence incredible. (See para 100 above)

110.  The plaintiff’s evidence was that he received his broker’s advice on the following day of the 2010 Accident but he did not attend the A&E of UCH until four months after the 2010 Accident.  His evidence of suffering no injury from the 2010 Accident was also not supported by the contemporaneous medical records kept by the A&E of UCH recording his complaint of pain over neck and low back and numbness over left upper limb. 

111.  I find that the plaintiff did suffer injuries to his neck, low back and left upper limb in the 2010 Accident.  As there was no evidence suggesting that the plaintiff still required medical treatment to such injuries after January 2011, I accept that the injuries sustained by the plaintiff in the 2010 Accident were not as serious as the injuries sustained by him in the Incident.  However, I also find that the pain caused by injuries sustained in the 2010 Accident had lasted for at least four months.

112.  Dr Lam stated in the Supplemental Report that: “From the evidences available, there was no evidence that Mr Tang [the plaintiff] had significant neck/back pain or treatment for these regions before the subject accident [the Incident].”  The basis for Dr Lam making the aforesaid statement was that: “Clinically, according to Mr Tang, for his neck or back, there was no previous injury or pre-existing pain before the subject accident.  He said he did not require any treatment or therapy for these regions before the subject accident.” (Emphasis added) (See p 333 of Hearing Bundle I)

113.  The plaintiff told the experts that he used to travel frequently to China by long haul bus and ride horse as a sport.  Dr Lam opined that such activities probably put considerable stress to the neck/back and there was no evidence that the said activities had caused discomfort or pain to these regions of the plaintiff.

114.  Dr Lam accordingly opined in the Supplemental Report that the plaintiff was rather asymptomatic in the neck/back before the Incident.  He kept his assessment made in the Joint Report that the pre-exiting degeneration should account for not more than 15% of the impairment of neck and low back.

115.  Dr Lam opined in the Supplemental Report that based on the evidence available, there were mild to moderate degenerative changes in the plaintiff’s neck/back before the Incident.  However, such changes were rather asymptomatic in the neck/back before the Incident.  Dr Lam relied on the plaintiff’s assertion and turned a blind eye to the medical records on the plaintiff’s attendance at the A&E of UCH on 14 January 2011 to form his aforesaid opinion.  His opinion cannot be accepted as a sound opinion.

116.  In the Joint Report, Dr Chiang considered that half of the percentage of the total impairment of the whole person was contributed by the pre-existing degeneration.  In the Supplemental Report, after taking into account the 2010 Accident Dr Chiang suggested that in respect of the neck injury, 60% of the total impairment was contributed by the plaintiff’s pre-existing condition.  In respect of the low back and the right hip, Dr Chiang made a different apportionment of 50% and 33% respectively. 

117.  Mr Lin for the plaintiff referred to McGhee v National Coal Board [1973] 1 WLR 1 to contend that the Court should not take into account the pre-existing condition of the plaintiff in considering the extent of injuries caused by the Incident to the plaintiff.  He submitted that it was sufficient for the plaintiff to prove on balance of probabilities that the negligence of the defendant contributed substantially to causing the plaintiff’s injuries and disabilities or materially increased the risk of injury and it did not matter that it was not the sole cause.

118.  I have no dispute with Mr Lin on the legal principle on causation of damages.  As Hunter JA said in Ocean Tramping Co Ltd v Lee Kin Kai [1991] 2 HKLR 232 at 235-236 that:

“In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause.”

119.  Mr Fong for the defendant referred me to the judgment of Mortimer VP in Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 when his Lordship quoted the judgment of lower court with agreement at 963 E-G that:

“When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios. The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition. The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff’s present state. The third is where this would certainly have occurred at some stage in any event. In the first, the defendant would be liable for all damage caused. In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life. In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”

120.  This is not a case where the experts can say that the plaintiff was almost certain to have gone through life unaffected by the pre-existing condition or that the pre-existing condition would certainly have occurred at some stage in any event. 

121.  Dr Lam noted in the Joint Report that the plaintiff had mild to moderate degenerative changes in his neck/back before the Incident.  He opined that such degenerative were rather common in adults of the plaintiff’s age and that such changes could be symptomatic or asymptomatic. Based on evidence available at the 2013 Assessment (ie without knowledge of the 2010 Accident and the subsequent treatment received by the plaintiff in January 2011), Dr Lam opined that such changes were rather asymptomatic in the plaintiff before the Incident.  In the Supplemental Report, Dr Lam maintained the same view.

122.  Before knowing that the plaintiff had encountered the 2010 Accident and had received treatment at UCH in January 2011, Dr Chiang had already pointed out in the Joint Report that: “The presence of some on and off neck symptoms before the injury [sustained in the Incident] could not be ruled out.”  Dr Chiang accepted the plaintiff’s neck condition as asymptomatic before the Incident only because “there were no documented recordings of treatment history for neck symptoms, and that Mr Tang [the plaintiff] described that there were no symptoms before the injury”. (p 267 of Hearing Bundle I)

123.  Even before being told about the 2010 Accident and the subsequent treatment received by the plaintiff, Dr Chiang had already expressed the view in the Joint Report that even without the Incident, “there exists the likelihood that, at a later stage, more regular neck symptoms may develop, and might have the chance to be aggravated by other events, and might have the chance to progress to the current status.” (p 278 of Hearing Bundle I)

124.  In the Supplemental Report, Dr Chiang further opined that even without the injuries sustained in the Incident, “there is a high likelihood that some other events or natural progression of the pre-existing degeneration in the neck, pre-existing pain in the low back, and the pre-existing elements in the right hip would have brought about Mr Tang’s present state.” (p 349 of Hearing Bundle I)

125.  After considered the 2010 Accident and the subsequent treatment received by the plaintiff in January 2011, Dr Chiang opined in the Supplemental Report that: “The presence of increasing symptoms over several months’ time since the 18 September 2010 traffic accident [ie the 2010 Accident], and with radiating symptoms in the left upper limb arising from the neck being similar to that noted after the 2011 accident [ie the Incident], suggested that the likelihood of presence of residual symptoms before the 2011 accident existed.” (p 340 of Hearing Bundle I)

126.  The plaintiff had pre-existing degeneration and had encountered the 2010 Accident.  The symptoms had surfaced latest by January 2011.  I am of the view that this is a case falls within scenario 2 discussed in the Chan Kam Hoi case.  In the case of Tso Chun Cheong v Mak Chi Ming trading as Lik Wang International Sofa Company (unrep., DCPI 766/2007, 19 December 2007, Judge M Ng) the court attributed one-third of the claimant’s overall impairment and disability to his pre-existing condition which was more severe than the plaintiff in this case.  Taking into account the views expressed by the expert and the fact that the plaintiff had encountered the 2010 Accident causing him neck pain, left upper limb numbness and right-sided low back pain which necessitated the plaintiff seeking treatment at the A&E of UCH four months after the 2010 Accident, I am of the view that discounting general damages in this case by 25% on account of pre-existing condition is appropriate.

127.  Mortimer VP held in the Chan Kam Hoi case at 965 E-F that:

“Where a pre-existing condition is likely to lead to disability and loss in the absence of injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.”

128.  It would take some times before the pre-existing condition would develop to have manifested more severe symptoms affecting the plaintiff.  Dr Chiang opined in the Joint Report that the plaintiff’s neck condition might have developed into the present status in about five to eight years from the time of the Incident due to the degeneration at the cervical spine.  It is about six years from the date of Incident to the date of the assessment hearing.  I am of the view that the plaintiff’s pre-existing condition may not develop to the extent of affecting his working capacity during these six years.  As such, his pre-trial loss of earnings would not be affected by his pre-existing condition but his loss under other heads of general damages shall be discounted by 25%.  

The right shoulder

129.  The plaintiff sustained soft tissue injury to his right shoulder.  Injury to the plaintiff’s right shoulder had recovered satisfactory after treatment. 

130.  Dr Lam opined that there was minimal decrease in the range of motion of right shoulder and x-ray examination was unremarkable. The occasional residual pain and impairment in the right shoulder was estimated to be mild.

131.  Dr Chiang opined that the plaintiff’s right shoulder had acquired a satisfactory recovery at the early stage after the injury and was unlikely to have result in residues.

132.  The experts did not differ much on the plaintiff’s right shoulder injury and recovery.  I find that the plaintiff had sustained mild soft tissue injury to his right shoulder in the Incident and had recovered satisfactorily after treatment.  Any residual pain will only be mild and occasional.

The neck

133.  The plaintiff told the experts that he had complained of pain over the back of his neck and left upper limb numbness since the Incident.  He told the experts at the 2013 Assessment that the neck pain and left upper limb numbness had improved after the C6/7 Operation.  He told the experts at the 2016 Assessment that his neck pain and left upper limb numbness had improved by about 50%.  The plaintiff said that the numbness involved the ulnar two fingers and ulnar half of the left hand.  Occasionally, this also involved the ulnar border of forearm up to elbow.  The numbness was worse when the neck pain was worse.

134.  The records kept by UCH showed that when the plaintiff was admitted to UCH on the date of Incident, he complained neck and back pain and paraesthesia over left hand.  In subsequent follow-ups, he complained persistent neck pain, back pain and lefty upper limb pain.

135.  MRI scan of cervical spine done on 24 August 2011 found moderate multi-level degeneration of the plaintiff’s cervical spine (see para 20 above).

136.  Further CT scan of cervical spine done on 28 September 2011 found cervical spondylosis affecting mid and lower cervical spine of the plaintiff (see para 24 above).

137.  The C6/7 Operation was performed on 12 October 2012.  In the follow-ups after the C6/7 Operation, it was noted that the plaintiff’s neck pain had improved with mild residual numbness of left hand.

138.  Dr Lam opined that it was likely that patients would achieve satisfactory recovery after 6 weeks to 3 months of treatment for just mild soft tissue injury to neck.  Dr Lam observed that the degenerative changes were rather common in the plaintiff’s age and such changes were rather asymptomatic in the neck/back before the Incident.  In the Joint Report, Dr Lam said that the plaintiff had persistent neck pain and persistent left upper limb numbness after the Incident which necessitated the C6/7 Operation.  Dr Lam then concluded that it was likely that the Incident had caused rather severe soft tissue injury to the plaintiff’s neck, causing/aggravating a C6/7 disc protrusion, causing persistent neurological compression/irritation resulting in persistent neck pain/left upper limb numbness.  Dr Lam said that but for the Incident, it was likely that the plaintiff would remain rather asymptomatic despite the degenerative changes in the neck and the Incident was the main cause of the present impairment and disability in the neck.  As pointed out above, the aforesaid comments of Dr Lam were made without knowing that the plaintiff had encountered the 2010 Accident and had attended the A&E of UCH on 14 January 2011 for treatment of neck pain and left upper limb numbness.

139.  Dr Lam stated in the Joint Report that for the neck, but for the Incident, most patients with the degree of degenerative changes the plaintiff had would not develop upper limb numbness to the degree that eventually spinal fusion was needed.  Dr Lam was not told that the plaintiff had developed upper limb numbness at least seven months before the Incident (ie in January 2011), if not earlier.

140.  Dr Chiang found that the plaintiff’s neck injury was likely to have acquired a reasonably satisfactory recovery.  There was no muscle spasm in neck muscles; the neck movement was reasonably satisfactory with no marked stiffness.  There was no motor or sensory deficit in the upper limbs.  The x-ray had revealed satisfactory position of the implant with fusion at C6/7 level. 

141.  Dr Chiang opined that if without the Incident, there was the likelihood that with time, the plaintiff’s neck degeneration would become symptomatic.  Dr Chiang further observed that the neck condition might have developed into the present status in about 5 to 8 years from the time of Incident due to the degeneration at the cervical spine.

142.  I find that the plaintiff had sustained mild soft tissue injury to his neck in the Incident and such injury had acquired a reasonably satisfactory recovery.  His residual neck pain and left upper limb numbness were caused by degeneration which had been accelerated by both the 2010 Accident and the Incident.

The low back

143.  The plaintiff told the experts that he had complained of pain over right low back and gluteal region since the Incident but the initial attention was more towards treatment for his neck injury.  He told the experts that the low back pain got worse since September 2012.  He said in the 2016 Assessment that he had about 60% overall improvement after the L5/S1 Operation but he still had right low back pain present all the time.  The pain was worse at night and with poor posture.

144.  MRI scan of lumbar spine done on 26 August 2011 showed mild-degeneration of lumbar spine (see para 23 above).

145.  At the follow-up on 21 January 2013, the plaintiff complained of back pain with right buttock and thigh radiation pain. MRI scan of the lumbar spine done on 15 March 2013 showed L5/S1 spondylosis (see para 30 above).  The plaintiff maintained his complaint on back pain at various follow-ups in 2013, 2014 and 2015.  MRI on 14 July 2014 showed degeneration changes at the L5/S1 (see para 36 above).  The L5/S1 Operation was performed on 8 September 2015.  

146.  Dr Lam opined that it was likely that patients would achieve satisfactory recovery after 6 weeks to 3 months of treatment for just mild soft tissue injury to the back.  Dr Lam said in the Joint Report that as the plaintiff suffered from persistent pain and impairment despite various treatments, it was likely that the plaintiff suffered from considerable and at least moderate degree of soft tissue to his low back, aggravating the plaintiff’s back condition (caused by degeneration) and causing persistent pain to his low back.  Dr Lam said that but for the Incident, it was likely that the plaintiff would remain rather asymptomatic despite the degenerative changes in the back.  He opined that the Incident was the main cause of the present impairment and disability in the plaintiff’s back. (p 272 of Hearing Bundle I) Again, Dr Lam made these comments without knowledge of the 2010 Accident and the fact that the plaintiff had attended the A&E of UCH on 14 January 2011 for low back pain.

147.  In the Supplemental Report, Dr Lam referred to the Joint Report and stated that “there was already evidence of gradual deterioration of the low back condition since the subject accident [ie the Incident], in the absence of further/unrelated injury/trauma to the low back.” (Emphasis added)  He further stated that “the various medical evidences also confirm gradual deterioration of the low back pain/low back condition, eventually requiring surgical L5/S1 fusion - Dr Lam opines that the need for further treatment and surgery on L5/S1 was due to the sequelae of the low back injury as a result/continuation from the subject accident.”  (p 334 of Hearing Bundle I)  Again, Dr Lam turned a blind eye to the medical records of UCH and treatment received by the plaintiff relating to the 2010 Accident.

148.  I do not accept Dr Lam’s aforesaid opinion as the plaintiff’s low back pain symptom had become apparent latest in January 2011 when the plaintiff had to attend the A&E of UCH for treatment of low back pain.

149.  Dr. Chiang noted in the Supplemental Report (pp 338-339 of Hearing Bundle I) that the medical records of UCH on treatment to the plaintiff on the date of Incident did not mention any abnormal findings in the low back.  When the plaintiff was examined at SPH, his straight leg test was full and no lower limb neurological deficits were noted.  Only mild tenderness over the L4/5 area was noted.  Dr Chiang opined that the absence of lower limb symptoms or limitation in the straight leg raising test suggested the diagnosis of soft tissue injury and more significant injury related pathologies were unlikely to be present.

150.  Dr Chiang referred to the MRI of the lumbar spine performed on 26 August 2011 and pointed out that the essential finding of no nerve root compression, and the absence of more significant injury related abnormal structural pathologies supported the diagnosis of soft tissue injury of the low back.  Dr Chiang noted in the Supplemental Report that: “physical examination in the last assessment [ie the 2013 Assessment] noted that the low back was likely in a satisfactory condition.  There was no muscle spasm in the low back.  The range of movement was reasonably preserved.  There was no limitation in the sitting straight leg raising test and no neurological deficits were noted in the lower limbs.” (p 338 of Hearing Bundle I)  Dr Chiang pointed out that generally, soft tissue injury of the low back had a good chance to acquire a satisfactory recovery from a period of rest and conservative treatment and did not require surgical treatment. 

151.  Dr Chiang further pointed out that the plaintiff’s back condition had remained stable with probably minimal symptoms for quite a long time lapse after the Incident and the plaintiff’s complaint of increased back pain at a later stage in December 2012 could not be considered as directly related to the Incident. 

152.  Dr Chiang opined that the soft tissue injury to the plaintiff’s back had likely reached maximal medical improvement at an earlier stage probably in 2012 and the L5/S1 Operation was unlikely related to the injuries from the Incident.

153.  It is noted that at the follow-up on 29 October 2012 (which was more than 14 months after the Incident), there was no record of the plaintiff complaining back pain or low back pain.  It was also observed that the plaintiff walked unaided. (see para 26 above)  I accept Dr Chiang’s opinion and find that the plaintiff had sustained mild soft tissue injury to his low back in the Incident and such injury had recovered satisfactorily after treatment.  His residual back pain leading to the L5/S1 Operation was caused by degeneration but not the Incident.

The right hip

154.  The plaintiff told the experts at the 2016 Assessment that he had complained of right hip pain since the Incident.  He said that he had about 60% improvement of his right hip pain after the Hip Operation although there was still right hip pain present all the time.  It was induced by walking for 15 minutes and he needed to stop and sit for rest. Lying on the right side for a long time would also cause pain.

155.  At the follow-up on 10 December 2012, the plaintiff complained about right side buttock pain affecting sleep (see para 28 above).  In the next follow-up on 21 January 2013, the plaintiff complained about back pain with right buttock and posterior thigh radiation pain (see para 29 above).  Only at the follow-up on 27 March 2013, the plaintiff complained of right hip pain (see para 31 above).  It can be seen that the plaintiff could distinguish between right buttock pain and right hip pain as the treating doctor recorded his complaint on 27 March 2013 as “now mainly back pain with Rt buttock also complained right hip pain”. (p 141 of Medical Records Bundle 1) As such, the plaintiff only started to complain about right hip pain in March 2013, ie 19 months after the Incident.

156.  He maintained his complaint on right hip pain at various follow-ups in 2013.  X-ray of right hip show a bump at the right femoral head neck junction.  CT scan and MR arthrogram showed the bump and labral tear of the right hip.  The Hip Operation was performed on 17 January 2014. 

157.  The defendant took issue on whether the Hip Operation was caused by the Incident.

158.  Mr Fong pointed out that the right buttock pain was first raised by the plaintiff at the follow-up on 10 December 2012 and the right hip pain was first raised by the plaintiff only in March 2013.

159.  Although the plaintiff stated in the Witness Statement and told the experts at the medical examinations that he felt right hip pain immediately after the Incident, the records kept by UCH for his treatment on 18 August 2011 did not mention right hip pain.  The first medical record recording the plaintiff’s complaint on right hip pain was dated March 2013, ie more than 1 year and 7 months after the Incident.

160.  The plaintiff had no complaint on right hip injury until more than 19 months after the Incident.  The contemporaneous medical findings on the date of Incident was that there was no tenderness over pelvis and hip. (p 480 of Medical Records 2)  Medical examinations on the date of Incident at UCH and on 24 August 2011 at SPH revealed that the powers of the plaintiff’s lower limbs were full.  There was no lower limb neurological deficit.  The jerks of the lower limb were essentially quite normal and straight leg raising of right side was full. (pp 216 and 236 of Hearing Bundle I) The Physiotherapy Department of TKOH had assessed the plaintiff’s right hip on 19 August 2011 and 23 July 2012 and found the plaintiff’s right hip with normal power in the muscle chart (see para 40 above).

161.  Dr Lam opined in the Supplemental Report (pp 331-332 of Hearing Bundle I) that it was possible that the plaintiff did suffer from significant right hip injury to start but this was mistaken as referred pain due to the low back injury and had not been investigated or treated initially.  However, Dr Lam agreed that the plaintiff was noted to be able to walk well unaided in the ward when he was hospitalized in UCH from 18 to 23 August 2011 and the various medical records also confirmed that initially there were no significant symptoms or signs suggesting significant right hip injury. Dr Lam also agreed that if the plaintiff suffered from a severe right hip injury as a result of the Incident, this was likely to give rise to significant symptoms and signs (such as right hip pain; difficulty or problem in walking; limited straight leg raising test; or decrease in right hip power) but such symptoms or signs were lacking in this case. 

162.  Dr Lam tried to link the plaintiff’s right hip pain to the Incident by the proposition that the absence of repeat examinations to the right hip in the early examinations made it difficult to totally exclude the possibility of the right buttock pain being more subtle presentation of some aggravation of the pre-existing femoral acetabular impingement.  However, even Dr Lam had to agree that: “The clinical features of right hip in Mr Tang’s case right after and in the early stage after the injury, suggested against an acute labral tear that arose from the 2011 accident [ie the Incident].” (Original underlining) (p 332 of Hearing Bundle I)

163.  If there was no symptom or sign at all suggesting the plaintiff had suffered right hip injury, I see no basis for Dr Lam’s comments on lack of repeat examinations to the plaintiff’s right hip in the early examinations.  The proposition put forward by Dr Lam is far from convincing.      

164.  Dr Chiang observed in the Supplemental Report (pp 335-336 of Hearing Bundle I) that degenerative elements with femoral acetabular impingement in the right hip likely required a long time to gradually develop and would likely be present well before the Incident.  Dr Chiang opined that labral tear could be present as a part of these degenerative elements.

165.  Dr Chiang noted that it was difficult to assess retrospectively on whether these degenerative elements, mainly the labrum tear, were being aggravated in the Incident due to the presence of some complaints around the right hip area, being over the right buttock since the early stage after the Incident at the physiotherapy session on 31 October 2011.  However, he pointed out that if the labral tear arose from the Incident, more obvious clinical symptoms of labrum tear would be present right after the injury or in the early stage after the injury.  It could present as obvious hip pain and sometimes anterior groin pain.

166.  Dr Chiang concluded that the absence of genuine right hip pain and anterior groin pain, being symptoms for labral tear that developed directly from acute trauma, in the plaintiff’s case right after and in the early stage after the Incident, suggested against an acute labral tear that arose from the Incident.

167.  Dr Chiang agreed that the absence of examination findings on the right hip made it difficult to totally exclude the possibility of the right buttock pain being more subtle presentation of some aggravation of the plaintiff’s pre-existing femoral acetabular impingement, probably increasing the extent of tear in the likely pre-existing labrum tear.

168.  Both experts agreed that aggravation of pre-existing right hip condition mainly in the labrum tear component of the femoral acetabular impingement could not be ruled out in the plaintiff’s case.

169.  It is theoretically possible that the Incident may aggravate the plaintiff’s pre-existing right hip condition.  The physiotherapy report on 31 October 2011 recorded the plaintiff mentioning right side neck pain with left upper limb numbness and back pain. The plaintiff did not complain about right buttock pain on that occasion only that the physiotherapist noted tenderness at right buttock region on palpation (see para 39 above).  The right hip pain did not surface until more than one year after the Incident in December 2012 when the plaintiff mentioned right buttock pain (see para 28 above) or even later in March 2013 when he specifically referred to right hip pain on top of right buttock pain (see para 31 above). Both experts agreed that the absence of genuine right hip pain and anterior groin pain in the plaintiff’s case suggested against an acute labral tear that arose from the Incident.  I find that the plaintiff has failed to prove on balance of probabilities that the aforesaid theoretical possibility had occurred in his case.  

170.  I find that the plaintiff’s right hip pain and the Hip Operation was not caused by injuries sustained by the plaintiff in the Incident. 

The urological problems

171.  The plaintiff told the experts in the 2016 Assessment that he suffered from urological problems of urinary incontinence and urine stream deviation since the L5/S1 Operation.

172.  At the follow-up on 30 September 2015, the plaintiff reported sometimes sense of incomplete emptying of bladder since January 2014 and claimed deviation of urine stream after the L5/S1 Operation (p 609 of Medical Records Bundle 2).  He was referred to the Urology Department of TKOH for further management of his urological problems.

173.  The defendant took further issue on whether the plaintiff’s urological problems were caused by the Incident.

174.  Mr Fong submitted that the plaintiff had failed to adduce expert evidence to prove that the plaintiff’s urological problems were caused by the L5/S1 Operation, let alone the Incident.

175.  To substantiate his claim on his urological problem, the plaintiff produced a medical report dated 23 June 2017 from the treating doctor (pp 805-806 of Bundle III) stating that the provisional diagnosis of the plaintiff’s urological issue was “neurogenic bladder”.  The only other evidence was the plaintiff’s subjective belief that his urological problems were caused by the L5/S1 Operation.

176.  In the Supplemental Report, Dr Lam after noting the plaintiff’s complaint on his urological problems opined that considering the onset of a significant urological problem after spinal surgery, it would be beneficial to obtain the medical report from the urological department/clinic to assess whether further independent assessment of the plaintiff’s urological problems would be appropriate. 

177.  However, no expert evidence had been adduced to link the plaintiff’s urological problems to the L5/S1 Operation.  I have found that the L5/S1 Operation was caused by degeneration and not by the Incident.  I further find that the plaintiff has failed to prove on balance of probabilities that his urological problems were caused by his injuries sustained in the Incident.

Findings on the plaintiff’s injuries

178.  I find that the plaintiff had sustained injuries of soft tissue of his right shoulder, neck and low back in the Incident.  The injuries to his right shoulder and low back had recovered satisfactorily with only mild and occasional residual symptoms.  The injury to his neck had accelerated the degeneration of his cervical spine which necessitated the performance of the C6/7 Operation in October 2012.  The plaintiff still suffers from mild residual neck pain and mild residual numbness of left hand which are caused by degeneration, the 2010 Accident and the Incident.

179.  I find that the Hip Operation, the L5/S1 Operation and the plaintiff’s urological problems were not caused by injuries sustained by the plaintiff in the Incident.

Pain, suffering and loss of amenities

180.  Mr Lin referred to Wong Man Kin v Golden Wheel (C&HK) Transportation Company Limited [2015] 5 HKC 570, Luk Yee Lam v Orasa Livasiri (unrep, HCPI 394/2012, 27 November 2003), Ken John Geissler v Chan Kim-Chung (unrep, HCPI 1/2000, 28 March 2001), Joan Carol Bovin v Wong King Yin, Yanwide International Limited (unrep, HCPI 195/2000, 14 February 2001), Anderson v Wui Yip Company Limited [2001] 1 HKLRD 125, Lam Chan Hung v Hang Yue Engineering Ltd [2013] 3 HKLRD 420 to support the plaintiff’s claim for $800,000.00 under this head.

181.  In the above cases, the courts awarded between $400,000.00 to $620,000.00 to the claimants under this head.

182.  The defendant conceded the sum of $150,000.00 for this head in the defendant’s amended answer to the amended revised statement of damage.  Mr Fong referred to Chiu Wing Sze v Chan Ying Wai & Anor [2001] 2 HKLRD 92, Muhammad Saddiq v Cheung Chi Keung (unrep, HCPI 1018/2006, 8 April 2008), Tso Chun Cheong v Mak Chi Ming t/a Lik Wang International Sofa Company (unrep, DCPI 766/2007, 8 January 2008), Ho Wai Sang v Fok Kai alias Fok Kai Sun t/a Pak Lee Steel Engineering Company (unrep, HCPI 1330/1999, 19 September 2001) to submit that damages to the plaintiff under this head should not exceed $200,000.00.

183.  In the above cases, the courts awarded between $150,000.00 to $400,000.00 to the claimants under this head.

184.  I am of the view that the plaintiff’s injuries sustained in the Incident come below the “serious injury” category as it is understood in the case of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 ie injury leaves a disability which mars general activities and enjoyment of life but allows reasonable mobility to the victim.  The examples of “serious injury” category cited by the Court of Appeal in the Lee Ting Lam case were “loss of a limb replaced by a satisfactory artificial device” and “bad fractures leaving recurrent pain”.  All these did not happen to the plaintiff in this case.  The level of award of PSLA for “serious injury” category as at May 2015 was about $510,000.00 (see Wong Man Kin v Golden Wheel (C & HK) Transportation Co Ltd [2015] 5 HHC 570 at 586B).  After considering all the authorities referred to me by the parties and taking into account my aforesaid findings on the extent of injuries sustained by the plaintiff in the Incident, I am of the view that the plaintiff’s case is close to the situation of the claimant in the Luk Yee Lam case.  In that case the taxi driver claimant suffered the whiplash-type injury to his neck which caused damage to the disc at the C5/6 level with residual pain in the neck and back, numbness in the right arm and left wrist, weakness in his hands, some numbness and pain in his right leg and his feet and reduced sexual desire caused by the pain.  He was unable to participate in sports or go swimming and was unable to drive a taxi again.  He was awarded $400,000.00 for PSLA. 

185.  I have found that the injuries sustained by the plaintiff in the Incident had accelerated the neck degeneration of the plaintiff but the plaintiff’s residual problems are less serious than the claimant in the Luk Yee Lam case.  The parties’ experts were of the view that the plaintiff could return to his pre-injury job and could return to the sports of swimming and cycling.  I bear in mind that the Luk Yee Lam case was decided in 2003, ie 15 years before this case.  I take into account the inflation in these 15 years and the level of award for “serious injury” category as at 2015.  I am of the view that an award of $400,000.00 to the plaintiff under this head is appropriate.  As I have found that the pre-existing condition (ie the degeneration and the injuries sustained by the plaintiff in the 2011 Accident) of the plaintiff should account for 25% of his present condition, the amount liable by the defendant to the plaintiff under this head shall be $300,000.00 (ie $400,000.00 x 75%).

Pre-trial loss of earnings

186.  The plaintiff claimed $1,736,829.60 under this head in the amended revised statement of damages.

187.  The plaintiff’s case was that he earned about $23,484.00 per month (ie $281,812.00 ÷ 12 = $23,484.33) at the time of the Incident.  Due to persistent neck and back pain, he could no longer cope with the business trips to factories in the Mainland.  After the Incident, he ceased his business after he completed his existing contracts with his customers in about November 2011 and was recuperating at home.

188.  Since December 2015, the plaintiff worked as a part-time driver earning a much lower income as he was unable to work for prolonged hours.  He only worked about 4 to 5 hours per day.

189.  In the Joint Report, Dr Lam opined that the plaintiff had returned to some of his pre-injury duties and the plaintiff would probably find travelling by long haul bus more tiring and uncomfortable for his neck or back condition and considerable reduction in work capacity was expected.  In the Supplemental Report, Dr Lam maintained the same view.

190.  Dr Chiang was of the view that physically the plaintiff should be able to return to work in his pre-injury job and perform the travelling as required in his job but with adaption by attention to sitting positions and frequent change of neck postures.  Dr Chiang also maintained the same view in the Supplemental Report.

191.  Mr Lin submitted that the plaintiff could not continue his business which would require his frequent travelling to the Mainland.  He contended that the profit and loss accounts (the “P/L Accounts”) of Tony Company for the years 2010/11, 2011/12 and 2012/13 showed that the plaintiff had a very steady source of income before the Incident which gradually came to a halt after the Incident.  Mr Lin contended that there was no good reason for the plaintiff not to continue his business but for the Incident.

192.  The plaintiff agreed in his oral evidence that he still received new orders for his business after the Incident up to at least early 2012.  He said that he would pass the new orders to his friends after November 2011 and his company would receive some income from these new orders passed.  The plaintiff did not adduce any evidence to show that he had earned less on these new orders.  The plaintiff’s evidence showed that his ability to secure new work orders was not affected by his injuries sustained in the Incident. 

193.  There was also no evidence to show that the injuries sustained by the plaintiff in the Incident had prevented him from executing the outstanding work orders or new orders received after the Incident.  The evidence of the plaintiff was that after the Incident, he completed the work orders received by him before the Incident and disposed of his stock in trade and moulds.  The injuries sustained by the plaintiff in the Incident had not led to cancellation or termination of any work orders of Tony Company.  The plaintiff’s evidence that his injury had stopped him from continuing his business is not substantiated.  The plaintiff’s evidence showed that after the Incident he was able not only to continue the business of Tony Company but also his side business in garment.  

194.  Both experts were of the view that the plaintiff might resume his pre-injury job.  The plaintiff agreed in cross-examination that after the Incident, he travelled to the Mainland more often than before the Incident to wind down his business affairs.  He said that he had to take taxi or hire cars for his travelling.

195.  If the plaintiff could travel to wind down his business, he could travel to continue his business.  I accept that he might have to incur more travelling expenses by hiring car, taking train, plane or taxi instead of travelling by long haul bus.  The P/L Accounts of Tony Company showed that the travelling expenses incurred by the business for the year 2011/12 had doubled when compared with that of the year 2010/11.  This would have increased the costs of Tony Company and lowered its profits.  To such extent, the plaintiff’s income would be affected by his injuries sustained in the Incident.  However, I do not accept that his injuries sustained in the Incident had caused him to close down his business. 

196.  After learning that the plaintiff had closed down his business, Dr Lam opined in the Supplemental Report that: “If the economic environment and factors favors, Mr Tang may be able to return to his previous jobs as a factory owner or some kind of administrator” (p 346 of Hearing Bundle I).  Even the plaintiff’s own expert did not consider that the injuries sustained by the plaintiff in the Incident would stop him from running his pre-injury business.  The plaintiff might have chosen to close down his business for his personal reasons but I find that it was not his injuries sustained in the Incident which prevented him from continuing with his business. 

197.  The treating doctors had granted over 1,800 days sick leave to the plaintiff.  The plaintiff was not a salary worker.  He operated his own business.  He did not earn his income per each working day. He earned his income from profits of his business.  As I have found that the injuries sustained by the plaintiff in the Incident did not render him unable to continue his business and force him to enter into the labour market to seek employment, his loss of earnings should not be assessed by reference to the length of sick leave granted to him but in accordance with the impact of the injuries sustained by him in the Incident on his business.  (See the Ken John Geissler case (supra)) 

198.  The plaintiff’s claim for mandatory provident fund (“MPF”) is also misconceived.  This item is to cover loss of an employee claimant for the share of MPF contribution which should have been paid by the employer (on top of the employee claimant’s wages) to the employee claimant’s MPA account in respect of wages which would have been paid to the employee claimant.  The plaintiff was his own employer.  Any MPF contribution (if any) paid to his own MPF account would have been coming from the revenue of his business.  From the P/L Accounts of Tony Company produced to the Court, it can be seen that Tony Company had claimed no expenses for MPF contribution (see pp 770-772 of Hearing Bundle II).  The plaintiff also agreed in cross-examination that he did not keep any MPF account.  

199.  The P/L Accounts of Tony Company for the year ended on 31 March 2011 showed that the business had net profit of $281,812.00 with sales at $1,791,396.00.  

200.  The P/L Accounts of Tony Company for the year ended on 31 March 2012 showed that the business had net profit of $146,245.00 with sales at $1,744,545.00. 

201.  The P/L Accounts of Tong Company for the year ended on 31 March 2013 showed that the business had incurred a net loss of $27,192.00 with sales dropped to $107,615.00.

202.  It can be seen that Tony Company’s sales dropped slightly by $46,851.00 (about 2.61% ie [$1,791,396.00 - $1,744,545.00] ÷ $1,791,396.00 x 100%) from the year 2010/11 to 2011/12.  The net profit of Tony Company had dropped by $135,567.00 (about 48.10% ie [$281,812.00 - $146,245.00] ÷ $281,812.00 x 100%) from 2010/11 to 2011/12 and went into red in 2012/13.  The issue before me is whether these were all caused by the injuries sustained by the plaintiff in the Incident.  

203.  The plaintiff was hospitalized for 9 days in UCH and SPH for treatment after the Incident from 18 to 27 August 2011.  I accept that he would lose some business opportunities in the year 2011/12 because of his hospitalization.  I bear in mind that whether the plaintiff might secure further business for Tony Company was not solely depending on whether he was available to take on more business but also upon a contingency of the will of his customers to place more orders with him.  In Allied Maples v Simmons & Simmons [1995] 1 WLR 1602 CA, it was held that if the claimant’s loss depended on the hypothetical action of a third party, the claimant would succeed provided he showed that he had a substantial chance rather than a speculative one, that the third party would have acted so as to confer the benefit to the claimant.  Stuart-Smith LJ stated at 1614C-E that:

“… But, in my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be.”

204.  The plaintiff had been in the same trade since the age of 16.  He started Tony Company in April 2010 and achieved sales of about $1.8 million in the first year of 2010/11.  The plaintiff said that but for the Incident he would expect Tony Company to achieve similar sales for the second year of 2011/12.  No evidence had been adduced to show that there were any adverse changes in the plaintiff’s trade in the year 2011/12.  In fact, Tony Company had achieved similar sales of about $1.75 million for 2011/12.  I accept that the plaintiff had a substantial chance to achieve sales similar to that of 2010/11 for the year 2011/12 but for the Incident.  I find that the injuries sustained by the plaintiff in the Incident had caused him loss of substantial chance to obtain further work orders for Tony Company amounting to $50,000.00 for the year 2011/12.

205.  According to the P/L Accounts of Tony Company for 2011/2012, its gross profits (ie sales less costs of sales) for that year was about 17.16% ([$1,744,545.00 - $1,445,126.00] ÷ $1,744,545.00 x 100%).  I am of the view that the other overheads of Tony Company would be slightly increased by taking on these hypothetical additional work orders.  Accordingly, I adjust the profit for these hypothetical missed work orders to 17% and find that the loss of profit for these hypothetical missed work orders was $8,500.00 (ie $50,000.00 x 17%).  I give a 30% discount to reflect the uncertainty in the commercial world and assess that the plaintiff’s loss in the year 2011/12 for the missing business opportunities caused by his injuries in the Incident is $5,950.00 (ie $8,500.00 x 70%).

206.  The plaintiff had earned less profit in 2011/12 with a sales similar to that of 2010/11 (the sales difference being only $46,851.00).  The plaintiff agreed in cross-examination that the increase in costs of raw material had diminished his profit.  With a slight decrease in sales of about 2.61%, the plaintiff’s “costs of sales” had still increased by $100,602.00 (about 7.48% ie [$1,445,126.00 - $1,344,524.00] ÷ $1,344,524.00 x 100%) in the year 2011/12 when comparing with 2010/11.  As such, the decrease in the plaintiff’s earnings for 2011/12 was also caused by other commercial reasons unrelated to his injuries. 

207.  Extra travelling expenses in the sum of $12,212.00 (ie $28,564.00 - $12,352.00) was incurred for 2011/2012.  As the turnover between 2010/11 and 2011/12 was similar, the travelling expenses for these two years should be similar as no evidence has been adduced to show that the plaintiff had to travel more to execute the orders for 2011/12.  As such, the aforesaid extra travelling expenses had to be additional travelling expenses incurred for the plaintiff travelling on more expensive means of transportation which were caused by the Incident and for additional travelling for the plaintiff to wind-down his business which I have found not caused by the Incident.  The plaintiff attributed 10% to 20% of his travelling in the year 2011/12 for the purpose of disposing of the moulds to wind-down his business.  I apportion 15% of the extra travelling expenses for the purpose of winding-down the plaintiff’s business and find that the plaintiff had to incurred about $10,380.00 (ie $12,212.00 x 85% = $10,380.20) as extra travelling expenses for the seven months period after he was discharged from SPH on 27 August 2011 to 31 March 2012 for the purpose of running his business, including getting new orders, executing work orders (new and existing) and selling stock in trade.  He spent on average about $1,500.00 (ie $10,380.00 ÷ 7 = $1,482.85) per month as extra travelling expenses caused by the Incident.

208.  Mr Fong submitted that the item of “Travelling” in the P/L Accounts might also include entertainment expenses and hotel expenses.  The P/L Accounts of Tony Company had another expense item for “Entertainment”.  It is unlikely that the item of “Travelling” in the P/L Accounts would cover entertainment.  I accept that this item would cover hotel expenses.  However, there was no evidence suggesting that the residual symptoms of the plaintiff would necessitate him to stay longer in China during his business trip leading to additional hotel expenses.  I find that the extra expenses of $10,380.00 in the year 2011/12 were caused by the more expensive transportation means used by the plaintiff for his business trips to accommodate his residual symptoms.  This sum of $10,380.00 also formed part of his loss of earnings for the year 2011/12.

209.  I find that other than the aforesaid loss of certain business opportunities and extra travelling expenses which had and would have been incurred by the plaintiff if he had continued his business, the plaintiff’s business had not been adversely affected by the plaintiff’s injuries sustained in the Incident. 

210.  I find that such extra travelling expenses would continue to be incurred if the plaintiff had continued his business.  In such case, the plaintiff would have to incur extra travelling expenses in the sum of $1,500.00 each month to continue to run his business.  From 1 April 2012 to 31^st August 2017 (ie up to the assessment hearing), there are 65 months.  The loss which the plaintiff would have suffered is $97,500.00 (ie $1,500.00 x 65 months).

211.  I assess the plaintiff’s total pre-trial loss of earnings at $113,830.00 (ie $5,950.00 + $10,380.00 + $97,500.00).

Future loss of earnings

212.  The plaintiff claimed $804,528.27 under this head in the amended revised statement of damages.

213.  The plaintiff stated in his supplemental statement that but for the Incident, he would work to the age of 65.  Although the plaintiff said in the assessment hearing that he had not thought about retirement, Mr Lin based on the plaintiff retiring at the age of 65 to submit that according to Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1 and Table 9 of Personal Injury Tables Hong Kong 2016, a multiplier of 2.99 should apply to the plaintiff’s case.  

214.  Mr Fong contended that there should be no future loss of earnings given that the plaintiff had reached maximum medical improvement in respect of injuries arising from the Incident as agreed by both experts in the Joint Report and the Supplemental Report.

215.  I do not agree.  The fact that the plaintiff had reached maximum medical improvement only means that further medical treatment will not improve his condition further.  It does not mean that the plaintiff’s conditions had returned to his pre-injury level.  Both experts agreed that the earning capacity of the plaintiff would be affected by the residual symptoms. Their difference was only on the extent.  As I have pointed out above, the plaintiff would have to use more comfortable means of transportation for his business trips which means more expensive means of transportation.

216.  If the plaintiff continues to run his business until he turns 65 on 19 April 2020, he will still be in business for about 3 years after the assessment hearing.  He will have to incur extra travelling expenses of $18,000.00 (ie $1,500.00 x 12 months) for each year.  This will reduce his profit and cause him future loss of earnings.  I agree with Mr Lin to adopt a multiplier of 2.99 to this case which gives an award of $53,820.00 (ie $18,000.00 x 2.99) under this head. 

217.  I have found that the plaintiff’s pre-existing condition should account for 25% of his future loss of earnings.  As such, the plaintiff is entitled to recover $40,365.00 (ie $53,820.00 x 75%) from the defendant under this head.    

Loss of earning capacity

218.  The plaintiff claimed $144,000.00 in the amended revised statement of damages under this head.

219.  Mr Lin referred to the Wong Man Kin case (supra) when the court allowed $100,000 to the claimant in support of the amount claimed by the plaintiff under this head.

220.  Mr Fong contended that there should be no award to the plaintiff under this head as there was no real and substantial risk that the plaintiff would be thrown into the labour market and have to seek employment elsewhere.

221.  In Tang Shau Tsan v Wealthy (unrep., CACV 58/2000, 5 April 2000), Roger JA (as he then was) had commented on opinion given by medical experts on loss of earning capacity of a claimant at p 5 of the judgment as follows:

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

222.  Mayo VP also expressed similar view at p 9 of the judgment when he stated that:

“Clearly any expert evidence given by them [the medical experts of the parties] should have been confined to the Plaintiff’s medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion.”

223.  Whether the impairment to his body had led to loss of earning capacity of the claimant is a matter to be determined by the court after considering evidence adduced by the parties.  An award for loss of earning capacity would be appropriate if there is evidence that there is a substantial risk that the claimant will at sometime before the end of his working life lose his job and be thrown on the labour market in which he is disadvantaged (see Moeliker v Reyrolle & Co [1977] 1 All ER 9).

224.  Browne L.J. stated inMoeliker v Reyrolle & Co at 15b-c that:

“This head of damage generally arises where a plaintiff is, at the time of the trial, in employment, but there is a risk that he may lose this employment at some time in the future and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job.”

225.  His Lordship further set out the principle for considering this head of damages at 17a-c as follows:

“I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’ risk that a Plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

226.  The plaintiff was running his own business.  The injuries will increase his costs of operation and reduce his profits.  His such loss will be compensated by the award under the head of loss of earnings both pre-trial and post-trial.  As the plaintiff was his own boss and aged 62 at the assessment hearing, I do not see any substantial or real risk that he will lose his job before his retirement at 65 in three years’ time save for his voluntary decision of closing down his business.

227.  I do not consider that this is an appropriate case for the Court to award further damages under this head.

Future medical expenses

228.  The plaintiff claimed $480,000.00 under this head in the amended revised statement of damages.  The plaintiff claimed $300,000.00 for surgery of facet injection and follow-up treatment to relieve his back pain and $180,000.00 for future medical operation and follow-up treatment for his other persistent painful condition.  The plaintiff did not specify what future medical operation other than surgery of facet injection he had in mind for his claim under this head.

229.  Mr Fong referred to Lam Kwong Tung v Ho Yau Yuan [1990] 2 HKC 381 and submitted that given that both experts in the Joint Report and the Supplemental Report agreed that the plaintiff had reached maximum medical improvement and further surgery was not required for the plaintiff’s injuries, no sum should be awarded to the plaintiff under this head.

230.  In the Lam Kwong Ting case, the court held that to claim future medical expenses for further operation, the claimant had to satisfy the court that such further operation was to be done on medical advice and that it was necessary or reasonably required for the recovery of injuries.  Furthermore, the operation was anticipated or likely to take place in the near or reasonably foreseeable future.  In view of the opinion of the experts from both sides that the plaintiff had reached maximum medical improvement and further surgery was not required for the plaintiff’s injuries (p 340 of Hearing Bundle I), I am not satisfied that the plaintiff is entitled to claim medical expenses for future surgeries.

231.  Mr Lin has sensibly only claimed “reasonable sum” for the plaintiff’s future medical expenses in his submissions.  I accept that the plaintiff will still have to incur medical expenses to deal with the residual symptoms.  I shall allow reasonable future medical expenses to the plaintiff for that purpose.  I award $20,000.00 to the Plaintiff under this head.  As the pre-existing condition will also contribute to the plaintiff future medical expenses, the awarded sum shall also be discounted by 25% to become $15,000.00 (ie $20,000.00 x 75%).

Special Damages

232.  The parties have agreed at the hearing for the plaintiff’s claim under this head to be allowed as follows:

(1)   Medical expenses:	$36,000.00
(2)   Tonic Food:	$5,000.00
(3)   Travelling Expenses:	$5,000.00
Total:	$46,000.00

Conclusion

233.  I assess that the damages payable by the defendant to the plaintiff in this Action is $515,195.00.  Particulars are as follows:

(1)   PLSA	$300,000.00
(2)   Loss of pre-trial earnings	$113,830.00
(3)   Loss of future earnings	$40,365.00
(4)   Future medical expenses	$15,000.00
(5)   Special damages	$46,000.00
Total:	$515,195.00

234.  I make an order nisi for the defendant to pay to the plaintiff interest at 2% per annum on general damages for PSLA from the date of the writ until judgment and interest at half judgment rate on damages for pre-trial loss of earnings and special damages from the date of the Incident to judgment.

235.  At the beginning of the assessment hearing, I have dealt with an application from the plaintiff to adduce supplemental witness statement and an application from the defendant to amend the answer to the amended revised statement of damages.  I have granted both applications and reserved the costs issue to be dealt with at the end of the assessment hearing.  I am of the view that costs of both applications should be in the cause of the assessment of damages proceedings and I make an order nisi to that effect.

236.  I also make a costs order nisi against the defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.

237.  In view of the amount of damages awarded, which is well within the jurisdiction of the District Court, the appropriate scale for the costs payable by the defendant to the plaintiff shall be the District Court scale.

238.  The above orders nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.