HUI KA KIT v. YEUNG YAN WAI ANSON

DCPI 3732/2022

[2024] HKDC 1516

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 3732 OF 2022

----------------------------------

----------------------------------

-----------------------------------------

ASSESSMENT OF DAMAGES

-----------------------------------------

INTRODUCTION

1.  This is an assessment of damages sustained by the plaintiff in a person injuries case.

2.  At about 1:40 pm on 24 September 2020, the plaintiff was riding a motorcycle bearing registration number RZ5437 along the third left lane of Yue Man Square towards Hong Ning Road, Kwun Tong at the speed of about 20 km/hr.  The defendant was a pedestrian.  The pedestrian traffic light at the pedestrian crossing was a “red man”.  When the plaintiff reached the pedestrian crossing, the defendant failed to obey the pedestrian traffic light and walked across the pedestrian crossing.  In order to avoid hitting the defendant, the plaintiff swerved the motorcycle to the right.  As a result, the motorcycle toppled rightward and the plaintiff landed on the ground.  The motorcycle was damaged at the point of impact.  The plaintiff sustained injuries to his right knee and right ankle (“the Accident”).  The defendant was convicted of the offence of failing to comply with a red traffic light signal under KCS6260/2021 upon his own guilty plea and was fined HK$400.

3.  The plaintiff issued the writ of summons of this action on 4 November 2022.  No notice of intention to defend had been filed by the defendant.  On 2 February 2023, interlocutory judgement was entered against the defendant with damages to be assessed and costs.  

4.  A statement of damages was filed by the plaintiff on 4 November 2022.  He claimed for a total amount of HK$593,133.33 plus interest and costs.  The breakdown of the claimed sum was as follows:

PSLA:	HK$350,000.00
Pre-trial Loss of Earnings:	HK$124,133.33
Loss of Earning Capacity:	HK$84,000.00
Loss of Service:	HK$20,000.00
Special Damages:	HK$15,000.00
	____________
TOTAL:	HK$593,133.33

5.  On 27 June 2024, this court set down this action for assessment of damages.  On 2 July 2024, the notice of appointment for assessment of damages (“the Notice”) was issued.  The Notice was served on the defendant on 16 July 2024 at the defendant’s address stated on the writ.  Affirmation of service was filed on 9 September 2024.  The court had also sent a notice of trial regarding assessment of damages to the defendant on 4 July 2024.

6.  The defendant did not attend the hearing for assessment of damages.  I was satisfied that notice of assessment of damages hearing has been duly given to the defendant.  It is the defendant’s election not to attend the hearing.  I proceeded with the assessment of damages in this case in the absence of the defendant.

THE PLAINTIFF’S CASE

Injuries and Treatments

7.  After the Accident, the plaintiff was sent to the Department of Accident and Emergency of United Christian Hospital (“UCH”).  According to the medical report dated 28 December 2021 complied by Dr Tang Ho Ming of the Department of Accident and Emergency of UCH, physical examination revealed abrasions over right knee and right ankle medial malleolus.  Lacerations over right ankle lateral malleolus were also found.  X-ray of right ankle showed fracture lateral malleolus.  The plaintiff was admitted to Orthopaedic Ward for further management.

8.  The medical report dated 12 November 2021 complied by Dr. To Sik Lok of Department of Orthopaedics and Traumatology (“the Medical Report from O & T Department”) stated that, there was a 4-cm deep laceration over right lateral malleolus with bone exposed on the plaintiff’s admission to the O & T. The distal neurovascular structures were intact. X-ray of the right ankle showed fracture right distal fibula with displacement. The ankle joint was congruent. X-ray of right knee showed no fracture.  Wound exploration and repair under local anesthesia was performed. An ankle-foot orthosis was given. Repeated X-rays showed alignment satisfactory. He was given oral Augmentin for one week and referred to General Out-patient Clinic for dressing and off-stitch.

9.  The plaintiff was followed up for four times in O & T.  Wound remained well and X-rays showed fracture alignment was maintained.  He was on non-weight-bear walking from injury till follow up on 6 November 2020, partial-weight-bear walking from 6 November till 3 December 2020 and full-weight-bear walking since 3 December 2020.  On his last follow-up on 14 January 2021, he reported improvement in pain.  Wound was well and X-ray showed fracture healed.

10.  The plaintiff was referred from O & T to the Cluster Prosthetic and Orthotic Department of UCH (“P & O”) on 25 September 2020.  According to the P & O Report prepared by Wong Shu Ming Denis, Department Manager (P & O) of Cluster P & O Department of Kowloon East Cluster, the plaintiff was diagnosed with fracture right distal fibula.  He was treated with right ankle orthosis for providing protection and immobilisation of his right ankle/foot.  The orthosis was fitted to him on 25 September 2020 during impatient hospitalisation.  Proper fitting instruction, non-weight bearing walking with orthosis and wearing regime were advised upon discharged from ward.  He attended P & O on 9 October and 6 November 2020 for reviewing the orthosis.  Adjustment was done to his orthosis since it was loosened.  He attended urgent P & O appointment again due to broken orthosis on 13 November 2020.  Re-mounding of right ankle orthosis was performed during the consultation.  Proper fitting instruction and wearing regime were advised.

11.  The physiotherapy report dated 20 December 2021 prepared by Wong Man Hin, Physiotherapist II (“the Physiotherapy Report”) revealed that the plaintiff was referred to the Physiotherapy Department of UCH on 6 November 2020.  He started physiotherapy on 11 November 2020.  Treatment in the form of right ankle mobilising exercises and bilateral lower limbs strengthening exercises, gait re-education and home exercise regime were given.  The plaintiff attended a total of four treatment sessions by 18 December 2020 and defaulted the subsequent appointment.

12.  With reference to the occupational therapy report dated 4 November 2021 by the Department of Occupational Therapy in UCH (“the Occupational Therapy Report”), the plaintiff also attended the occupational therapy out-patient service on 21 December 2020.  He was referred for work rehabilitation and was given initial work assessment.  He defaulted the appointment for work rehabilitation on 26 January 2021.

13.  The plaintiff was given sick leave for 127 days for the period from 24 September 2020 to 28 January 2021.

The plaintiff’s circumstances

14.  The plaintiff testified in the hearing.  He adopted his witness statement filed on 17 November 2023 as his evidence in the assessment of damages.

15.  The plaintiff was born in October 1986.  He was aged 33 at the time of the Accident and am 37 years of age at the date of assessment of damages.  He stated that he was a self-employed motorcycle delivery worker at the time of the Accident. 

16.  In his witness statement filed on 17 November 2023, he complained that he  suffered from:

(a)  Right ankle pain and discomfort;

(b)  Reduced range of movement and mobility on his right ankle and foot;

(c)  Reduced strength and endurance in his right ankle and foot;

(d)  Occasional nightmares and flashback of the Accident;

(e)  Poor sleeping quality.

17.  Before the Accident, the plaintiff did not suffer from any pre-existing injury to his right leg or right ankle.  He was in good health and had a happy family.  He also enjoyed playing sports.  Due to the pain and discomfort he suffered, he has participated in his favourite activities less frequently.  He was not able to enjoy life as much as he used to be.

18.  He lived with his family before the Accident and was responsible for doing household chores such as tidying up and cleaning his home, mopping the floor, washing the clothes and cooking.  After the Accident, he found it difficult to do the chores.  He felt pain and needed a rest after working for a while.  It reduced his ability and efficiency in performing the household chores.

ANALYSIS OF EVIDENCE

Recovery

19.  In respect of the sufferings he sustained, he stated that he still feels painful, in particular after he has worked.  He explained that his job involved delivering food to different areas.  He might need to walk up stairs and slopes and carry heavy food.  The pain reduced his efficiency in work. He was questioned on why he did not seek further medical treatments. His reply was that his doctor had told him that the pain would continue in the future. When he was asked whether he had taken painkillers to ease the pain, he said that he had used his mother’s painkillers. However, he did not have any receipts for purchasing the medicines.

20.  He testified that he had occasional insomnia for the first half year after the Accident since he worried about his income.  Nightmares and flashbacks had lasted for one or two years.  However, it was also his evidence that he did not consult any medical practitioners or receive any professional services from January 2021.  

21.  He was questioned by the court of the reasons of not attending the follow-up sessions of physiotherapy and occupational therapy.  The reason given was that he was able to do the exercises as advised by the physiotherapist at home by himself.

22.  He was asked about the content of the Physiotherapy Report which stated that the pain intensity measured on 18 December 2020 was 1/10. His testimony was that he still felt very painful during that period of time.  He further explained that he was sitting when being asked about the level of pain during that assessment.  Thus, he did not feel the pain.  When he was required to walk and to bear weight, he felt very painful.

23.  I have considered the plaintiff’s testimony. I have strong reservations to his complaint of noticeable pain after sick leave period (ie from January 2021) and his alleged intense pain when he needed to work and bear weight.  His alleged pain and other sufferings were not consistent with the facts that no further medical consultation was made from January 2021.  It is inconceivable that he took no action and even defaulted in follow-up sessions of physiotherapy and occupational therapy should his pain continue and affect his efficiency at work. I do not accept his explanation for taking no action. His alleged use of painkillers was not substantiated by documentary proof either. No claim for medical expenses of painkillers was made at all.  I reject the plaintiff’s evidence regarding his pain and recovery accordingly.

Income

24.  The plaintiff testified that he subscribed to the online food delivery platform of Deliveroo to provide delivery service.  In his evidence in chief, he confirmed that he received his income in cash.  That was also stated in his witness statement.  He testified that he worked for around 10 hours each day from 10:00 am to around 9:00 and 10:00 pm and six days a week.  Around the time of the Accident, there was high demand for food-delivery service due to the pandemics, therefore he was able to earn around HK$1,300 to 2,300 per day.  The figure (ie HK$28,000 per month) he adopted was based on his average income half year before the Accident.  The plaintiff also referred to a work rehabilitation assessment note of occupational therapy and lent support from the particulars of his work (such as “food deliverer, mainly deliveroo”, working days: 6 days/week, working hours: 11:00 to 21:00 (10 hours)) and information on essential job tasks he provided to the nurse of occupational therapy in December 2020.

25.  In his further testimony, he agreed that the online food delivery platform would have the record of his works.  When he was asked why he did not obtain those records and provide the same to the court, he paused for a while and said that he had not thought about that.  He only wanted the defendant to bear his liability and he himself did not think that he had to provide all the evidence.

26.  The plaintiff did not adduce his bank account statements before the Accident.  Instead, the bank statements subsequent to the Accident were provided.  He did not explain the entries therein. On the other hand, when he was asked why he did not provide his bank account statements before the Accident, he answered that it was long time ago and he did not remember.

27.  He exercised his right to silence and did not reply to the question of whether he reported his income to the Inland Revenue Department.

28.  In addition, the plaintiff testified that the online food delivery platform would transfer his income by way of bank transfer.  It was directly contradictory to what he all along claimed that he received his income in cash.

29.  I do not accept the plaintiff’s evidence on his alleged income.  There was no documentary evidence substantiating the same.  I reject his explanation for not providing the same.  He was claiming damages in this action and should be well apprised that he had to provide all relevant documents.  His claim that his income was received in cash was incredible.  His testimony on his income and reasons for lack of record was far from wanting.  His allegation of monthly income of HK$28,000 was not up to the proof.

FACTUAL FINDINGS

On Injuries and Treatments

30.  The plaintiff elects not to adduce any expert medical evidence as to quantum at the assessment of damages and relies solely on his medical reports mentioned above.  I give full weight to the medical reports adduced by the plaintiff.  The evidence of the plaintiff on injuries and treatments was not challenged.  I accept the evidence of the plaintiff on these aspects which was consistent with the medical reports referred above.  I found that the plaintiff sustained injuries on his right ankle/foot due to the Accident, including:

(1)  Abrasions over right knee and right ankle medial malleolus;

(2)  4-cm deep laceration over right lateral malleolus with bone exposed; and

(3)  X-ray of the right ankle showed fracture right distal fibula with displacement.

31.  The treatment to the plaintiff involved:

(1)  Wound exploration and repair under local anesthesia was performed;

(2)  Hospitalised for one night;

(3)  An ankle-foot orthosis was given on 25 September 2020 and was taken off by the plaintiff himself in around January 2021;

(4)  Oral Augmentin was given for one week;

(5)  He was referred to General Out-Patient Clinic for dressing and off-stitching;

(6)  Four visits to P & O Department;

(7)  Four sessions of physiotherapy treatment were attended with last examination on 18 December 2020;

(8)  Occupational therapy out-patient service was received on 21 December 2020; and

(9)  Sick leave was granted for 127 days until 28 January 2021.

32.  As to recovery, according to the Medical Report from O & T Department, as at 14 January 2021, the plaintiff’s wound was well and fracture healed.  The pain intensity of his right ankle measured as stated in the Physiotherapy Report was 1/10 which was close to 0/10 (ie pain free) on 18 December 2020.  The Occupational Therapy Report also recorded that the right ankle active range of motion, right ankle manual muscle testing (except plantarflexion) and squat range reached full.

33.  As mentioned, despite what was stated by the plaintiff, I found that he had recovered by the end of his sick leave ie in January 2021.  I am only prepared to accept that the plaintiff may suffer from very mild occasional pain on his right ankle/foot which does not affect his working and daily living.

34.  Based on these factual findings, I now turn to each head of claim.

A. PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

35.  The plaintiff claimed for a sum not less than HK$350,000 as damages for PSLA. A number of cases were referred to for my consideration. I have carefully compared the nature and seriousness of injuries, symptoms, the duration of healing process and other relevant circumstances of the plaintiffs in these cases and found as follows:

(a)  In Tsui Wai Ho v Pride Glory Limited trading as Ziti’s, DCPI 1699/2016, 23 May 2019, the plaintiff suffered from fractured distal fibula requiring open reduction and internal fixation.  There were 7 follow-ups, 13 sessions of physiotherapy and occupational therapy.  There was also an operation for implant removal.  The fracture was found to be healed well with satisfactory range of movement.  There was no limitation to his daily activities and full recovery was achieved two years after the Accident.  He was awarded HK$250,000 in May 2019 as PSLA.  I found that the present case was comparable to Tsui Wai Ho.  However,the number of treatments was less, an operation for implant removal was not involved and the healing time was much shorter in the present case;

(b)  In Chan Mok Yau v 黃吉利and another, HCPI  913/2016, 25 May 2018, the plaintiff was aged 54 at the time of accident.  He only received conservative treatment by way of cast for his right ankle fracture.  However, he required as many as 424 days of sick leave.  Almost two years after the Accident, he still had moderately reduced range of movement as examined by an orthopaedic specialist.  A PSLA award of HK250,000 was awarded in May 2018.  The sufferings from Chan Mok Yau could be comparable to the present case.  Conversely, the plaintiff in Chan Mok Yau required longer period of sick leave and the recovery was less satisfactory when compared with the present case;

(c)  In Sukhdeep Singh v Chow Kin Hung and another, HCPI 202/2020, 21 September 2011, the plaintiff suffered a fractured distal tibia and fibula of his right leg in the accident.  He underwent surgery for open reduction and internal fixation of the fibula and nailing of the tibia.  Bone was taken from his right knee for grafting.  Later, he was re-admitted for the removal of the surgical implant due to continued pain and discomfort over the right knee area where the bone graft had been taken.  He was awarded PSLA in the amount of HK$300,000 in September 2011.  I found the suffering in Sukhdeep Singh is more serious when compared with the present case.  The injuries of the plaintiff in that case involved fractures in both distal tibia and fibula of his right leg.  Surgery, internal fixation and nailing was involved in the treatment, not to mention the bone graft;

(d)  In Cheng Ka Piu v Wong Ming Kwong, DCPI  1619/2019, 11 August 2021, the plaintiff suffered pilon fracture right ankle with comminuted fracture over tibia and fibula.  The plaintiff had to walk with crutches for about a year after the accident and had to give up some of the exercises he used to do in the past.  He was awarded HK$400,000 as PSLA in August 2021.  I am of the view that the injuries in Cheng Ka Piu were more serious and the period of sufferings thereof was much longer.

36.  I have considered the authorities above, I assess that the damages for PSLA should be at $250,000 after taking into account of the element of inflation.

B. PRE-TRIAL LOSS OF EARNINGS

37.  It is the plaintiff’s submissions that the plaintiff worked as a self-employed motorcycle delivery worker earning about HK$28,000 per month and was paid in cash.  It is submitted that as the plaintiff’s income was all derived from cash transactions, the plaintiff is unable to produce any documentary proof of the same.

38.  Based on my assessment of the evidence of the plaintiff, I do not accept that the plaintiff was able to prove his income as alleged.

39.  It is submitted by the plaintiff’s solicitors that the court may adopt the statistics published by the Census and Statistics Department.  The case Shabar Rehman v Sunny Success Holdings Limited and another, DCPI  2437/2020, 2 December 2022 was drawn to my attention.  With due respect, Shabar Rehman is distinguished from the facts of the present case.  The employment of plaintiff in Shabar Rehman by the 1^st defendant was not an issue in that case.  The court could therefore proceed on the basis that the plaintiff was an employed general worker.  On the contrary, the plaintiff in the present case alleged that he was a self-employed motorcycle delivery worker.  Despite his testimony, there were no documents at all to substantiate the amount of works done by him and his relevant earnings before the Accident.  These documents could not be said to be not obtainable.  I am not satisfied that the plaintiff was up to the proof that he received the alleged income prior to the Accident, or otherwise up to the average level of a male driver based on statistical figures.

40.  Although there was no dispute to the number of days of sick leave, the claim for Pre-trial Loss of Earnings was not established. I made no award under this head.

C. LOSS OF EARNINGS CAPACITY

41.  It is plaintiff’s case that the job nature of the plaintiff’s pre-accident job as a self-employed motorcycle delivery worker is physically demanding as he is required to deliver food orders to different places in the course of his work.  He is required to walk and drive from place to place.  Although he returned to work after expiry of his sick leave, he experienced residual pain and discomfort in his right leg.  He had to take a rest from time to time during his work due to the residual impairment and disability suffered by him.  He would have to rest for about 10 to 20 minutes to relax his right leg after every one hour of work.  As a result, his work performance as well as his work capacity and efficiency was worsened after the Accident.

42.  The plaintiff contended that compared to other job seekers who enjoy good health, the plaintiff’s injuries and residual disability have put him at a real disadvantage in the labour market.  Hence, the plaintiff claimed a lump sum of HK$55,737 which is equivalent to about three months of his pre-accident income under this head to reflect the disadvantages he encounters in the labour market.  The plaintiff relied on Chan Fai Cheung v Ho Chi Wing trading as Hanson Engineering Co & Anor, HCPI 354/2016, 30 January 2019 and submitted that the plaintiff’s future employment was affected and it is reasonable to make an award under this head for a sum deemed appropriate by the Court.

43.  Given my observations above, I found that the plaintiff had recovered by the end of his sick leave.  I do not accept that the residual pain and discomfort, if any, suffered by him will make him less advantaged in the labour market, not to mention putting his employment at risk and causing him financial loss potentially.  Further, I do not accept that the plaintiff has proved to the court’s satisfaction of his income level. In the circumstances, I make no award under this head.

D. LOSS OF SERVICE

44.  The plaintiff contended that before the Accident, he resided with his elderly parents.  He was responsible for doing most of the household chores, including mopping the floor, cleaning and tidying up his home and so on.  After the Accident, he was unable to perform the pre-accident household chores.  His efficiency and endurance in performing household chores was reduced by pain.  The plaintiff claimed a lump sum of HK$20,000 to reflect his loss of efficiency and endurance in performing the pre-accident household chores and service to his elderly parents.

45.  The plaintiff relied on Mok Pui Che the Administratrix of the estate of Ip King Tong, deceased v Kwok Hing Engineering Company (a firm) and another, DCPI 3725/2019, 20 August 2021.  The widow of the deceased claims loss of service since it is her evidence the deceased regularly performed minor maintenance at home.  The court relied on the evidence by the widow and awarded a reasonable sum of HK$80,000 under loss of service.

46.  In the plaintiff‘s testimony, he stated that his father was aged 67 and his mother was 63 years old at the time of the Accident.  His father worked as a part-time janitor in the hospital while his mother was a housewife.  His mother suffered from genu varum and would feel painful after doing the chores. She also suffered from headache from time to time.  In order to fulfill his filial duty to his family, the plaintiff had done the household chores as he stated in his witness statement to shoulder his family’s burden.

47.  I heard the testimony from the plaintiff.  Insofar as loss of service is concerned, the plaintiff was able to particularise the chores and give details of the frequency and nature of chores he did.  He was also forthcoming when he gave evidence on these matters.  I am satisfied that the plaintiff had done the household chores as he stated.  I considered that the plaintiff was recovered by the end of sick leave.  The loss of service only lasted for about four months.  In the circumstances, I award HK$12,000 under this head.

E. SPECIAL DAMAGES

(i) Medical Expenses

48.  The plaintiffs claimed that he did not keep some of the receipts of his medical visits.  Nonetheless, he stated that he had incurred about HK$5,000 as medical expenses in attending at least 20 medical treatments.  According to the summary of receipts for medical expenses prepared by the plaintiff’s solicitors (“the Summary”), it included 19 medical visits, totally HK$1,760.  I have compared the Summary with the information in various medical reports and notes.  There was no further medical visits made by the plaintiff apart from those set out in the Summary.  That was also confirmed by the plaintiff in his evidence.  Hence, I award HK$1,760 under this head.

(ii) Travelling Expenses

49.  The plaintiff claimed that he had incurred about HK$5,000 as travelling expenses in attending at least 20 medical treatments.  The plaintiff has not kept the receipts of the same.  Tang Yuet Yi, a minor by Tiu Kwai King v Leung Man Chow, DCPI 1436/2016, 16 August 2018 was referred to.  It was contended that the court in that case accepted the calculation of travelling expenses based upon the number of visits to hospitals and clinics.  According to the Summary, there were 17 trips of medical visits (2 out of 19 visits involved same location in UCH).  In the circumstances, I award the amount as HK$4,250 under this head.

(iii) Tonic Food

50.  The plaintiff claimed that he had incurred about HK$5,000 for buying tonic food to assist him to recover from the injuries.  The receipts of the same were not kept.  The plaintiff relied on Tsing Hing Yuen v Nishimatsu Kumagai Joint Venture (a firm) and another, HCPI 906/1998, 17 March 2000 to contend that the courts have always been ready to award a reasonable amount for tonic food even where no documentary proof has been produced.  In that case, an amount of HK$20,000 was awarded.

51.  I have compared the injuries and the extent of the need of tonic food in Tsing Hing Yuen with that in the present case.  I am of the view that the amount of HK$5,000 is reasonable and awarded accordingly.

TOTAL AWARDED AMOUNT

52.  The plaintiff’s damages are assessed as follows:

PSLA:	HK$250,000
Pre-trial Loss of Earnings:	HK$0
Loss of Earning Capacity:	HK$0
Loss of Service:	HK$12,000
Special Damages
Medical Expenses:	HK$1,760
Travelling Expenses:	HK$4,250
Tonic Food:	HK$5,000
	____________
TOTAL:	HK$273,010

INTEREST

53.  Interest will be awarded at 2% per annum on damages for PSLA from the date of the writ to the date of judgment.  Interest on special damages will be awarded at half the judgment rate from the date of the incident to the date of judgment.

COSTS

54.  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, to be taxed if not agreed.  Unless either party applies to vary the same by summons, the costs order nisi shall be made absolute 14 days from the date hereof.