TSE KWOK KEUNG v. SWEDISH MOTORS LTD. AND ANOTHER

HCPI 759/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 759 OF 1999

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J U D G M E N T

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Plaintiff's Claim

1. The Plaintiff was injured in a traffic accident on 20 June 1997 while driving a motorcycle. His motorcycle collided with a private vehicle at the junction of Kui Tat Street and Lok Yip Road in Tai Po, New Territories.

2. According to the Plaintiff's witness statement as a result of the collision he lost balance and fell onto the other side of the road while his motorcycle continued to move forward towards the right until it fell and came to a halt.

3. Plaintiff was sent to Fanling Hospital for treatment but upon his request he was transferred to Baptist Hospital. Medical report from Baptist Hospital mentioned that he suffered Type 1 compound fracture of the left clavicle and an emergency open reduction and internal fixation operation was performed. He was discharged on 30 June 1997.

4. The parties agreed that the Plaintiff was 5% responsible for the accident. They appear before me for assessment of damages.

Pre-accident earning

5. The Plaintiff had been employed as a moulding technician. His work involved the design of moulds and then prepare metal material and size and specification. The moulds are made of metals and quite heavy. He had to move the metals. He worked alone. The moulds weigh at least over 50 lbs. At the time of the accident, according to his witness statement, he earned $14,000.00 with a bonus of about 2/3 of his monthly salary. However from the tax return of the Plaintiff it showed that he earned only $14,000.00 a month.

Post accident earning

6. Plaintiff says that 8 months after the accident, he had the implant removed. He did not return to his pre-accident job because he was not in good health, he was not feeling well and had to consult doctors frequently. He had neck pain, felt dizzy, his left hand had tremor and lack strength.

7. He worked as a shop attendant and cashier in Shenzhen in April 1999 for 10 odd days and earned approximately RMB1,500.00. He left the job because he had to come back to Hong Kong to see the doctor.

8. Then in August 1999 he worked for Kuen Kee as a traffic controller. He agreed it was a light job but had to work for 12 hours. The daily wage was $290.00. In August 1999 he earned $2,730.00. In September 1999 he earned $1,980.00 and in October 1999 he earned $4,188.00. He said he was sacked as he had to see doctor on a regular basis.

9. He said he had thereafter not looked for work because of poor health. He suffered from neck pain, insomnia, pain in left arm and back.

10. Through out his attendance in court he had crossed his right arm to the left side of his back as if he was in agonising pain. After giving evidence for less than 1 hour the hearing was adjourned as he said he was in pain. During the adjournment, as disclosed by Plaintiff's counsel, he had taken panadol. After the hearing resumed for less than an hour he again claimed he was in pain and had to pause for a while.

11. His main complaint is pain in the neck.

Was neck pain accident related

12. The medical report of Dr Lau Chi-man from Fanling Hospital mentioned that Plaintiff complained of injury of left shoulder and abrasions of limbs. X-ray of left shoulder showed fracture of clavicle bone. X-ray of left elbow, chest and cervical spine showed no abnormality. There was no history of loss of consciousness or vomiting.

13. Medical report of Dr Au from Baptist Hospital mentioned Plaintiff suffered Type 1 compound fracture of the left clavicle and Plaintiff was operated by open reduction and internal fixation.

14. Plaintiff on both occasions did not mention about neck pain.

15. Dr Brian Chan suggested the reason why doctor at Fanling hospital X-ray the cervical spine may be because of a complaint of neck injury. This is a wild guess. Dr David Cheng explained that the doctor was being prudent. It was done to ensure that any injury to any part of the upper torso could be detected.

16. The Plaintiff however in evidence said the doctor at Baptist Hospital had told him that he landed head first and then on his shoulder. This cannot be true because the doctor at Baptist Hospital would not know how the accident occurred. The Plaintiff then said he was thrown off the motorcycle and hurled a distance of 60 feet and landed on his head. This is completely different from his witness statement in which he said he lost balance and fell. In his revised schedule of statement of damages dated 7 April 2000 under the heading "full particulars of the Plaintiff's injury" it stated "...the Plaintiff feels constant pain on his neck and left shoulder since the removal of metal plate". The removal of the metal plate was in April 1998, 10 months after the accident. This again is different from his explanation in court. Again in his statement of claim dated 13 July 1999 neck pain was not pleaded.

17. I am of the view that the Plaintiff is not a truthful witness and is prepared to give untruthful evidence under oath in order to achieve his aim to say that the neck pain is accident related.

18. From all the records produced, those from Prince of Wales Orthopaedic Out Patient Clinic, the first of which was on 10 February 1998 it stated that the post operation was uneventful. The first recorded complaint of neck pain was on 6 October 1999 which is more than 28 months after the accident.

19. The record dated 17 November 1999 stated that the problem of neck pain was "poor posture with neck deviating to the right". He was advised to change posture.

20. The Physiotherapy Progress Report dated 17 November 1999 described the cause of neck pain was because of poor posture.

21. The Functional Capacity Evaluation Report in December 1999 found that the Plaintiff is "a man with a slouched sitting posture. He presented with a kyphotric thoracic spine and a marked head-forward posture in both sitting & standing". In their opinion the restriction in the range of motion was due to the Plaintiff assuming a fixed head forward position rather than permanent stiffening of the cervical spine.

22. From the evidence before me I am of the view that the neck pain is unrelated to the accident.

Is Plaintiff able to continue to work as a moulding worker

23. The Plaintiff admitted he had not attempted to seek a position as a moulding technician since the accident. His explanation is that he was weak and could not carry heavy metal which this kind of work demanded.

24. After conducting tests of muscles the Functional Capacity Evaluation report found that the Plaintiff showed cogwheeling during the tests. They were of the opinion that the weakness on the left side did not represent a true neurological status but rather a pain focused response.

25. The behavioural finding in that report is that the Plaintiff's self-perception of his current level of abilities is underestimated by himself. The positive findings during non-organic testing and absence of physiological and biomechanical changes in the physical testing indicate the Plaintiff demonstrated as a strong pain-focused behaviour and submaximal effort during functional testing.

26. The examination of cervical spine by Dr Lai Bing Man showed that there is normal lordosis, disc spaces are intact, no bony lesion is noted, the spinous processes are normal and no fracture dislocation is present.

27. Dr Brian Chan who examined the Plaintiff agreed that the clavical was fully healed with full range of movement. He did not expect after 3 years the arm would become useless.

28. He was shown the Body Chart VCWS9 of the Work Rehabilitation Progress Report from Prince of Wales Hospital which marked that the pain on shoulder was 2/10 on VAS scale which indicated the pain was not severe.

29. As for pain it is difficult to diagnose it depended on description of patient. Whether there is pain is subjective. He said inorganic pain is self perception.

30. Dr David Cheng first examined the Plaintiff on 9 September 1999 he did not complain of neck pain, only pain over the surgical scar on left shoulder, weakness of left shoulder and tremor of left hand. Examination of left shoulder did not show muscle wasting nor was any muscle weakness. Dr Cheng opined the fracture healed completely. Fracture of clavicle heals in about 2 to 3 months and full recovery is expected in 4 to 6 months. A period of sick leave up to 6 months is reasonable. There was no demonstrable physical impairment but only subjective weakness and subjective weather-related pain. He is of the opinion that the Plaintiff can return to pre-accident occupation as a moulding technician.

31. All the reports showed that the Plaintiff had fully recovered from the injury which was the result of the accident.

32. I accept the finding of Dr David Cheng that the Plaintiff could have returned to his pre-accident occupation.

Is Plaintiff a reliable witness

33. Dr Cheng went through the Plaintiff's records and found that there was never any neck pain or any symptom of neck pain from the time of injury up to November 1999. He described the Plaintiff prior to November 1999 complained of pain at fracture site, when failed to impress the doctors, new set of complaints i.e. neck pain emerged. He described that as a pattern of abnormal pain behaviour. He thinks the Plaintiff demonstrated exaggeration of illness behaviour.

34. Apart from saying that the doctor in Baptist Hospital told him he fell head on as I have mentioned earlier, the Plaintiff explained that he had to quit his job in Shenzhen in April 1999 because he had to attend doctors in Hong Kong. However medical reports revealed that he defaulted in going to see the doctor between 23 March 1999 to 6 October 1999.

35. His complaint of constant and severe pain of neck and left shoulder was not supported by any clinical finding of wasting of muscles or muscular spasm.

36. I am of the view that the Plaintiff is not a truthful witness.

37. Whilst I have every sympathy in respect of his traffic accident, he should not aim to, as Dr Cheng described, "sell his disability" or sympathy to inflate his claim.

PSLA

38. The injuries fall below the serious injury category. He has fully recovered with no residual disability. Counsel for Defendant cited Bar Kwok Leung v. Yuen Ming Sun HCA No. A2706/87 and Chun Sung Yong v. Au Sze Hung & another [1991] HKLJ 400 and submitted that with inflation and adjustments the award should be in the region of $200,000.00.

39. In the present case in view of the fact that there was an open reduction and eventually an operation to remove the plate the Plaintiff had suffered more than conservative treatment I assess damage under this head at $250,000.00.

Pre-trial loss of earning

40. Despite the Plaintiff's evidence that he had a bonus of about 2/3 of his monthly salary by way of bonus, the tax return showed that his income was only $14,000.00 a month. I find that the Plaintiff earned $14,000.00 per month immediately before the accident.

41. The Plaintiff met the accident on 20 June 1997 and had the implants removed in April 1998. Dr Cheng said that it is reasonable to allow 2-3 months rest before going back to work, so it would be reasonable to allow loss of earnings for 13 months. i.e. $14,000.00 x 13 = $182,000.00.

Loss of future earnings

42. I find that the Plaintiff could and should have returned to his pre-accident work. Even if there is neck pain, as I have found it is not injury related there would be no loss of future earnings.

43. If I am wrong in finding that the pain is not injury related and the Plaintiff could resume as mould technician, the Plaintiff did attend as car park attendant and earned about $7,000.00 per month. So the loss of future earning would be $14,000.00 - 7,000.00 = $7,000.00 a month taking it to $84,000.00.

44. I accept the Plaintiff counsel's and adopt a multiplier of 14.

45. The loss of future earning would therefore be $84,000.00 x 14 = $1,176,000.00.

Award

46. There be judgment for the Plaintiff in the sum of $557,839.00.

47. Costs to the Plaintiff.

48. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.