LEE YAU WAI v. YEUNG KAM WING

HCPI 281/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 281 OF 2009

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DECISION

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I.  BACKGROUND

1.  On 26 February 2007, the Plaintiff was riding a motorcycle when he was hit by a private car driven by the Defendant (“Accident”).  On 30 March 2009, the Plaintiff commenced the present proceedings against the Defendant for damages for personal injuries and other loss and damages as a result of the Accident.

2.  The Plaintiff’s claim as set out in the Statement of Damages and the Revised Statement of Damages filed on 30 March 2009 and 16 October 2009 respectively (“SOD” and “RSOD”) and the Defendant’s defence thereto as set out in the Answer filed on 17 November 2009 (“Answer”) are as follows:

	SOD (HK$)	RSOD (HK$)	Answer (HK$)
Pain, suffering and loss of amenities	600,000.00	600,000.00	150,000.00
Pre-trial loss of earnings	281,353.00	279,486.00	--
Post-trial loss of earnings	--	--	--
Loss of earning capacity	290,760.00	290,760.00	30,000.00
Loss of MPF contribution	14,067.65	14,067.65	to be assessed
Special damages	48,260.20	48,260.20	20,000.00
Total	1,234,444.85 (plus interest)	1,232,464.60 (plus interest)	200,000.00 (plus interest)

3.  The present proceedings were settled and concluded pursuant to the order of Fung J dated 26 March 2009 with the Defendant paying the Plaintiff (a) a sum of HK$820,000.00 inclusive of interest and (b) costs of the action to be taxed if not agreed (“Order”).

4.  The Plaintiff proceeded with formal taxation of his costs of the action pursuant to the Order on High Court scale of costs.  List of objections was filed, and the taxation hearing was scheduled to be heard on 20 December 2010.  Upon reminder by the Defendant’s solicitors on 24 November 2010, the Plaintiff issued a summons dated 26 November 2010 asking the Defendant to pay him costs of the action and costs of and occasioned by the application on High Court scale (“Summons”).  As a result, the taxation hearing was adjourned.

5.  The Defendant claims that much time/costs have been wasted as a result of the Plaintiff’s delay in taking out the Summons, so no interest should be allowed to accrue on the Plaintiff’s costs of the action from 26 March 2010 until the final disposal of the Summons.  In my view, such issue should be dealt with in the taxation proceedings, and not under the Summons which is limited to determination of the appropriate scale of costs.

6.  For the purpose of the Summons, the Defendant filed affidavit in opposition of his solicitor Wu Tung Wah on 18 January 2011 (“Wu Affidavit”), and the Plaintiff filed affirmation in reply of his solicitor Lee Ping Kong on 1 February 2011 (“Lee Affirmation”).  The hearing of the Summons came before me on 16 March 2011.

7.  At the hearing, Ms Cheung, counsel for the Plaintiff, and Mr Wu, solicitor for the Defendant, have agreed on the following matters:

(a)  post-writ settlement negotiations, sanctioned payments and/or eventual settlement need not be considered;

(b)  the question of contributory negligence is to be ignored;

(c)   the Plaintiff’s claim for pre-trial loss of damages, loss of MPF contribution and special damages in the total sum of HK$343,680.85 (SOD) or HK$341,813.85 (RSOD) (“Other Sums”) is not disputed;

(d)  the only heads of claim in dispute relate to (i) pain, suffering and loss of amenities (“PSLA”) and (ii) loss of earning capacity (“LOEC”);

(e)   the Plaintiff’s present income is HK$24,230.00 per month.

8.  The issue before me is whether, taking the Plaintiff’s best case,  he has a reasonable prospect of recovering not less than HK$656,186.15 (being HK$1,000,000.00 – HK$343,813.85) as damages for PSLA and LOEC so that together with the Other Sums the total damages reasonably recoverable are in excess of the District Court jurisdiction.

II.  LEGAL PRINCIPLES

9.  In Lai Ki v B+B Construction Company Limited & others [2003] 3 HKLRD 192, 200, Seagroatt J confirmed and adopted the test as stated by Glyn-Jones J in Hopkins v Rees & Kirby Ltd [1959] 1 WLR 740, 742 as follows:

“Putting myself as far as I can, in the position of the plaintiff at the time when he issued that writ, am I satisfied that it was then obvious that this was a county court action, or was it an action which, when tried by one judge rather than another, might have resulted in an award exceeding [the jurisdiction limit] excluding any reduction for contributory negligence?”

Seagroatt J further observed at p.197 that “[the] acid test therefore has been, ignoring all questions of contributory negligence, has the plaintiff a reasonable prospect of recovering a sum of money in excess of the [District] Court jurisdiction?” (see also Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited HCPI 77/2007, Suffiad J (unreported, 9 September 2008) at para.14).

10.  In Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002 (unreported, 7 May 2004), DHCJ Jat SC held that the test was an objective one, ie whether it would be obvious to a reasonable plaintiff or his legal adviser that the case was a District Court rather than High Court case.  The subjective intent of the plaintiff and his legal adviser would not normally be relevant.  The learned judge recognised that one must not just look at what was claimed in the statement of damages, and one should not look at the eventual settlement amount.  After all, the relevant time for consideration was the time when the writ was issued, and there might be all kinds of reasons why a plaintiff might wish to accept a sum lower than what his claim might be considered worth in order to settle the claim (see also Wong Choi Fung v Fung Kai Public School operating as Fung Kai Care and Attention Home for the Elderly HCPI 534/2004, Suffiad J (unreported, 14 February 2006) paras.15 and 40-42).

III.  PERSONAL PARTICULARS

11.  At the time of the Accident, the Plaintiff was 40 years old. He is married and has a daughter.  After finishing secondary education, he obtained a diploma in housing management, and in September 1998 he started a master degree course in Building and Real Estate.  He has worked as a librarian, hotel maintenance engineer and waterworks consumer inspector, and has working experience in estate management and maintenance work.  Since September 2006, he has been employed as Technician (Quarters Management) for City University handling maintenance and management of the compound with 80% of his work being supervisory (ie he has 7 staff working under him) and 20% hands-on.

12.  Before the Accident, the Plaintiff enjoyed good health except for left wrist fracture from a traffic accident over 20 years ago.  He received close reduction and plaster cast treatment at Queen Mary Hospital (“QMH”), and had good functional recovery. He is right hand dominant.

13.  Prior to the Accident, the Plaintiff enjoyed jogging, soccer (playing in the amateur league), rowing and riding motorcycle.  After the Accident, he has given up all sports.

IV.  INJURIES AND TREATMENT

14.  The Plaintiff’s injuries/treatment can be elicited from the treatment medical/physiotherapy reports and the joint orthopaedic expert report dated 11 February 2009 (“Jt Report”) by the Plaintiff’s expert Dr Peter Tio (“Dr Tio”) and the Defendant’s expert Dr Lam Kwong Chin (“Dr Lam”).

15.  After the Accident, the Plaintiff was sent to Queen Elizabeth Hospital (“QEH”).  On examination, 1cm long laceration and abrasion were noted over left and right knee respectively, and tenderness was elicited over neck and right wrist. X-ray did not show any fracture.  He was treated and discharged with wound dressing, suture and analgesics.

16.  On 1 March 2007, the Plaintiff visited City University’s Young Chung Yee Health Centre and was referred to orthopaedist Dr Lam Yan Kit for severe pain over the right radio-carpal joint and for crepitus over bilateral knee movement. When first seen by Dr Lam Yan Kit on 5 March 2007, he complained of right wrist and bilateral knee pain.  On examination, there was tenderness over the dorsal and radial side of the right wrist joint, diffuse tenderness over anterior aspect of both knee joints and limited flexion.  He was managed conservatively with physiotherapy/analgesics with no specific treatment for the right wrist pain.

17.  The Plaintiff was referred for physiotherapy (including pain management of right wrist and inflammation control of left knee) at Prime Rehabilitation Services (“PRS”) for 2 sessions per week.  When treatment started on 21 March 2007, he was found to have mild swelling over left knee joint after contusion, joint line tenderness over left knee, decrease in muscle tolerance and occasional knee lock, but meniscus and cruciate ligament tests were negative. Left knee flexion was 120˚ and extension was 0˚, and for the right wrist flexion was 30˚ and extension was 20˚.  According to the physiotherapy report by PRS’ physiotherapist Mr Steven Pun dated 26 April 2008, the pain intensity over knee and wrist subsided gradually, and the effusion over joint capsule was absorbed after 1 course of treatment.

18.  The Plaintiff’s right wrist and left knee symptoms persisted, so Dr Lam referred him to Opus Medical Diagnostic Centre (“OMDC”) for MRI investigation.  OMDC’s radiologist Dr Simon Le (“Dr Le”) reported on the MRI films of the right wrist taken on 23 March 2007 that there were (a) bony contusions in the triquetral bone, (b) slightly oblique linear high signal in the triangular fibrocartilage close to its insertion at the radius (which was suspicious of a focal perforation), and (c) no other significant findings.  Dr Le reported on the MRI films of the left knee that there was partial tear of the anterior cruciate ligament (ACL) with a small left knee joint effusion, but the posterior cruciate/collateral ligaments and menisci were intact with no tear.

19.  The Plaintiff continued to have weekly follow-up at Dr Lam Yan Kit’s clinic, and was referred to QMH’s orthopaedic clinic on 3April 2007.  He was first seen at such clinic on 7 June 2007, and was admitted for CT arthrogram/MRI of the right wrist on 9 July 2007 which revealed a central perforation of triangular fibro-cartilage complex (TFCC) and bone bruise in the sacphoid and radial styloid.  He was treated conservatively with splintage and analgesics. He also attended private physiotherapy treatment, but with persistent right wrist pain he was referred to the pain clinic for further management.

20.  The Plaintiff was advised to repeat MRI investigation for the right wrist in August 2007.  Wrist operation was discussed at QMH, but eventually not offered.  The Plaintiff returned to work intermittently (not more than 1-2 months).  When last seen by QMH on 8 November 2007, he was on a wrist brace and complained of right wrist pain.  At that time, he had resumed work already and had not booked an appointment at the pain clinic.

21.  On 28 November 2007, the Plaintiff consulted Dr Lam Yan Kit for increased wrist pain. Report by Dr Le of the MRI investigation at OMDC on 29 November 2007 showed inter alia as follows:

(a)  suspicious partial healing of an incomplete fracture of the radial styloid process and focal bony edema at the distal radius not seen on previous MRI films “? due to re-injury since previous MRI scan”;

(b)  suspicious bony fragment distal to the radial styloid process and suspicious bony defect at the proximal margin of the sacphoid bone;

(c)  persistent focal perforation in the triangular fibrocartilage close to its insertion at the radius;

(d)  suspicious disruption at the posterior portion of the scapho-lunate (SL) ligament with slight stepping noted in the SL joint, which was not apparent on previous MRI films.

22.  CT scan of the right wrist done at OMDC on 5 December 2007 showed (a) early degenerative changes at the scaphoid and the radial styloid process secondary to previous trauma, (b) no acute fracture or loose bony fragment, and (c) widened posterior aspect of the SL gap of the right wrist compatible with disruption of the posterior portion of the SL ligament.

23.  Upon review of the films, Drs Tio and Lam agree with the above descriptions, and as there was no evidence that the Plaintiff had another injury after the Accident, they opine that such new findings were probably due to gradual deterioration of the injury which was not noticed initially.

24.  The Plaintiff was referred by a general practitioner to the orthopaedic clinic of Prince of Wales Hospital (“PWH”).  He was first seen at PWH’s orthopaedic clinic on 17 December 2007 because of right wrist pain.  Physical examination revealed tenderness over radial side of the right wrist and pain on stress tests, but no effusion or swelling of both knees although there was mild pain on lateral meniscus grinding test.  MRI of the right wrist showed tear of the dorsal portion of the SL ligament and early degeneration of the radio-scaphoid joint.  The Plaintiff was suggested to have (and he agreed to have) wrist arthroscopy to evaluate the injured status.

25.  On 7 January 2008, wrist arthroscopy was performed at Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”) under local anaesthesia.  The results showed chronic tear of the SL ligament with instability of the SL joint together with an osteochrondal lesion over the distal radius articular surface. Debridement of the tears was performed, and the Plaintiff was discharged on the same day.

26.  Since January 2008, the Plaintiff had physiotherapy and occupational therapy at PWH, and was seen once at QEH’s pain clinic in early 2008.  Upon follow-up at PWH on 21 February 2008, he reported 50% reduction of wrist pain, but the right wrist was still painful on grinding test and at end range of motion.

27.  On 26 April 2008, the Plaintiff was assessed by PRS’ physiotherapist Mr Steven Pun. Left knee flexion was 150˚ (with swelling improved by 50% and slight stretch pain at end of range) and extension was 150˚ (with no abnormality), and right wrist flexion was 30˚ (with swelling improved and tenderness on distal radius (static)) and extension was 20˚ (with deep pain from distal radius (static)).  Level ground walking and standing tolerance were respectively about 2 hours and 1 hour (mild pain onset from left knee joint), and right hand gripping/twisting elicited deep pain from wrist joint. Mr Steven Pun noted that range limitation of the right wrist was due to structural damage on distal radius (TFCC perforation as confirmed by the MRI on 29 November 2007), and the functional capacity of the left knee improved after 2 courses of physiotherapy, but a brace was required to stabilise the knee joint for level ground and stairway walking.

28.  After discussion about the option of continuing conservative treatment or operative reconstruction of the wrist lesions, the Plaintiff preferred the latter.  He continued with hand therapy/training until the surgery on 27 May 2008 which consisted of arthroscopy of the right wrist, reconstruction of the SL ligament with tendon graft, K wire fixation and osteochondral graft transfer from the left knee to restore the osteochrondral defect of the right wrist.  The operation was uneventful, and he was discharged home on 31 May 2008.  His right wrist was protected with plaster cast for 8 weeks and then the K wires were removed.  Drs Tio and Lam agree that for such wrist injury, operation was optimal.

29.  Upon follow-up at PWH on 14 August 2008, all wounds healed up well and there was good incorporation of the graft to the distal radius.  The SL joint was stable, but there was still stiff wrist and residual pain.  The Plaintiff was referred for intensive hand therapy.

30.  On 26 November 2008, the Plaintiff was admitted to AHMLNH for debridement operation.  Between 1 and 8 December 2008, he was admitted to PWH for mobolisation. He had follow-up at QMH for his knee pain on 22 December 2008 with further appointment in December 2009.  The Plaintiff’s last follow-up at PWH was on 8 January 2008, and he resumed work (but only engaged in supervisory work) on the following day.  In 2008-2009, he was still on physiotherapy at PWH/PRS and occupational therapy at PWH.

31.  The Plaintiff claims that since mid-2009 the condition of his left knee deteriorated with constant pain which affected his ambulation.  He could no longer apply pressure on his left knee.  He consulted QMH and was diagnosed to have “[articular] cartilage disorder (L. knee symptomatic osteochrondral lesion)”.  He was advised to have left knee operation, and was hospitalised at QMH for such purpose between 27 January and 3 February 2010.  According to the Discharge Slip, the relevant procedures done on 28 January 2010 were “[arthroscopy] of knee (Left. Diagnostic) …… Lateral release knee (Open) …… Chondroplasty of knee (Artificial Osteochondral plug implantation ……)”.  After discharge, the Plaintiff had to walk on crutches until expected discovery.  He was given sick leave for “orthopaedic condition” and “L knee cartilage injury” from 27 January to 9 March 2010.

V.  PSLA

32.  As a result of the Accident, the Plaintiff suffered minor neck sprain with soft tissue injury, right wrist sprain with contusion triquetral bone/triangular fibrocartilage focal perforation, and bilateral knee contusion with partial tear of ACL on left side.

33.  When the Plaintiff was examined by Drs Tio and Lam on 15 January 2009 (ie almost 2 years after the Accident and 2 months after the last wrist operation), he complained of on-and-off right wrist pain which increased with prolonged writing (for half page) but which subjectively improved by 80-90% after treatment.  On examination, the Plaintiff wore a wrist brace over the right wrist, and there were still swelling, diffuse tenderness (maximal at radial styloid) and limited motion.  Exertion was limited by pain, but there was no instability and he could make a fist. X-ray of the right wrist taken on 15 January 2009 showed coarsening of trabecular pattern suggestive of regional osteoporosis due to under-usage.  The carpal bones were in satisfactory alignment with no widening of SL gap.  No recent fracture was noted, but the radio-carpal joint was mildly sclerotic and narrowed.

34.  According to the Plaintiff’s witness statement dated 28 August 2009, he was still wearing a wrist brace over the right wrist, which still had on-and-off pain and limited range of motion (eg extension up to 20° only), and he could not lift weight over 3kg by his right hand.

35.  The Plaintiff also complained to Drs Tio and Lam of bilateral knee pain, worse in left knee but with increase in right side pain in recent 2-3 months.  He told Drs Tio and Lam his walking tolerance was 15 minutes or 30 minutes (if using knee support).  On examination, the Plaintiff walked with normal gait, could stand single-legged and stand/walk on tiptoes or heels, but could not squat fully.  There was mild tenderness at lateral patella facet of both knees (more on left side), but no detectable anterior-posterior and collateral ligament laxity and no other abnormality.  X-ray of both knees taken on 15 January 2009 showed the bony alignment was normal with no recent fracture or bony erosion, but there was condral defect at the lateral femoral condyle of left knee compatible with a graft donor site.  The joint spaces were normal and there was no abnormal soft tissue swelling or calcification.

36.  According to the Plaintiff’s witness statement dated 28 August 2009, he would put more weight on his right leg on walking due to the partial tear of ACL, so he had bilateral knee pain and weakness but more so in the left knee. He also had to rest after walking for more than 30 minutes.

(a)  Jt Report – physical disabilities

37.  Drs Tio and Lam agree that from the findings the Plaintiff mainly had anterior knee pain due to wear and tear of the patella-femoral joint (PFJ), ie chondromalacia patellae, which is usually related to repetitive mechanical overload of the PFJ and not uncommon in middle-aged persons involved in vigorous activities.  This was evident from early findings of crepitus over bilateral knee movement and from diffuse tenderness over anterior aspect of both knee joints, which should not be due to knee contusion with partial tear of ACL.

38.  Drs Tio and Lam agree that it was acceptable for the Plaintiff to be on sick leave until 8 January 2009 since his last operation on the right wrist was in November 2008 and he was still under rehabilitation at the time of their assessment on 15 January 2009.

39.  Dr Lam opines that according to the AMA Guide, the right wrist injury and residual pain from contusion and the partial tear of ACL respectively amounted to 5% and 1% whole person impairment.  On the other hand, Dr Tio opines that the right wrist injury and disability amounted to 6.5% whole person impairment. He says that though clinically stable an ACL tear would make the knee more prone to early degeneration as a result of subclinical instability, and it could cause the Plaintiff to perform less well or be more prone to knee sprain during vigorous exercise (eg playing soccer), and this accounted for 1% whole person impairment.  Thus, the assessment of total whole person impairment by Drs Tio and Lam was respectively 6% and 7.5%.

40.  Drs Tio and Lam agree that further conservative treatment would not offer much change in the Plaintiff’s condition, and further surgery was not required.  They further agree that the Plaintiff had reached maximal medical improvement, but would have on-and-off wrist pain upon exertion. Dr Tio opines that pain over the right wrist would likely be permanent, and the Plaintiff was expected to have difficulty in lifting heavy object with his dominant right hand.  The Plaintiff might also suffer reduction in enjoyment of sports activities that involved use of his right wrist, eg sports that involved use of racket, gymnastic training or rowing etc.

(b)  Plaintiff’s alleged loss of amenities

41.  The Plaintiff further claims in his witness statement dated 28 August 2009 that he used to be a sporty person, and he played soccer about 4 times a week.  He played in the amateur league and came to know many friends.  He also derived satisfaction from being nominated best player on various occasions. But he has to abandon vigorous sports after the Accident for fear of further ACL tear, risk of contact with his injured right wrist and/or inability to use his injured arm for support should he fall.  The Plaintiff claims to suffer loss of enjoyment and restriction of his social circle due to inability to play soccer after the Accident.

42.  The Plaintiff claims he has also stopped rowing or motorcycle riding due to right wrist pain and weakness after the Accident even though he participated in dragon boat racing and drove a motorcycle as his usual mode of transport prior to the Accident.  Due to the partial tear of ACL, he is unable to participate in the annual Standard Chartered marathon and the Trailwalker, which he did every year before the Accident.

(c)  Alleged matrimonial disharmony

43.  In the Lee Affirmation, it is said that the Plaintiff “had also mentioned he had character change due to the [Accident] which adversely affected his matrimonial relationship, but he did not mention that again at the time of preparing his 1^st Witness Statement so this part was not included therein”.  But upon taking instructions on his condition and how his life was adversely affected by the Accident during the pre-trial conference on 5 February 2010, counsel advised that a supplemental witness statement from the Plaintiff was required.

44.  The Plaintiff states in his supplemental witness statement dated 18 February 2010 that he had forgotten to mention in his initial witness statement his family’s harmony was also ruined by the Accident.  He claims to have undergone intensive treatments after the Accident, and is unable to accept he has become disabled, so he has become depressed and frustrated as well as reticent all the time without communication with his wife.  As a result, his wife has lived separately from him since the end of 2007.

(d)  Preliminary matters

45.  The Plaintiff claims there is reasonable prospect of receiving an award of damages for PSLA in the sum of HK$600,000.00.  This was first asserted by his solicitors in their pre-action letter dated 20 March 2009 to the Defendant’s solicitors (“Pre-action Letter”) as follows:

“Lam Hung Yui v Muck Yun Chung [HCPI No.924/2004]

The Plaintiff herein sustained fracture of right radial head and left distal radius. Open fracture reduction and internal fixation was done for the right elbow while close reduction and external fixator was applied to the left distal radius. PSLA was awarded at $350,000.00.

Wong Kwok Ming v Cheung Ki Cheung [HCPI No. 1163/2900]

The Plaintiff therein sustained partial tear of ACL of the left knee and PSLA was awarded at $250,000.00.

We opine that the wrist condition of [the Plaintiff] is more serious than the Plaintiff in Lam Hung Yui and as a sporty man, the extent of effect as a result of partial tear of ACL on our client is comparable to the Plaintiff in Wong Kwok Ming. In the premises, the sum of $600,000.00 is claimed under this head.”

46.  Ms Cheung in her oral submissions explains that the claim in the Pre-action Letter for damages for PSLA in the sum of HK$600,000.00 is formulated by combining the awards under this head of claim in Lam Hung Yui and Wong Kwok Ming.  I agree with Mr Wu that such approach is fundamentally flawed. One needs to look at the claimant’s overall injuries/disabilities, his medical condition and his loss of amenities and suffering to make an assessment of the appropriate award, and in doing so previous authorities merely serve as reference. On this, I need look no further than Suffiad J’s observations in Yun Pun Yuen v Ng Kwok Man trading as East Mountain Engineering Company & ors HCPI293/2002 (unreported, 9 May 2003) as follows:

“81. The awards relating to the shoulder injury as cited by counsel for the plaintiff ranged between $300,000 and $400,000, and the awards cited for wrist injuries were in the region of around $200,000.

82.  What I have to do in the present case is to look at all the injuries and disabilities suffered by the plaintiff and to arrive at a global figure taking into account all the pain, suffering and loss of amenities in one go. It would be wrong for me to assess an award for the shoulder injury and then add to it another assessment for the wrist injury.”

47.  Next, the Lee Affirmation states that given the operation of the left knee (which had the partial tear of ACL) in January 2010, “it would be logical to consider that the deterioration of the left knee since about June 2009 resulting in the operation was brought about by the partial ACL tear”.  It is argued that such proposition is supported and vindicated by Dr Tio’s opinion (which Dr Lam does not dispute) that a partial tear of ACL would make the left knee more prone to early degeneration as a result of subclinical instability.

48.  On the other hand, Mr Wu submits there is no evidence that such operation on the left knee was the result of the partial tear of ACL.  The RSOD filed on 16 October 2009 has not relied on any deterioration of the left knee even though the Plaintiff’s supplemental witness statement alludes to deterioration of his left knee condition and increased pain by mid-2009. Mr Wu therefore argues that the Plaintiff must have understood such deterioration to be unrelated to the Accident.  He further contends it was more probable that the PFJ necessitated the knee operation for articular cartilage disorder.

49.  Drs Tio and Lam agree that the Plaintiff suffers from chondromalacia patellae, which essentially is degenerative change to the articular (joint surface) cartilage of PFJ and therefore unrelated to the partial tear of ACL.  In respect of the Plaintiff, such condition is not clinically silent but is in fact symptomatic as evidenced by anterior knee pain combined with crepitus, which sits well with his past participation in vigorous sports such as soccer, marathon and trail walking.  I also note the Plaintiff has complained that squatting has become uncomfortable.

50.  Further, the Plaintiff’s complaint is of bilateral knee pain involving not just the left knee which had a partial tear of ACL but also the right knee as well.  On examination, Drs Tio and Lam have found mild tenderness at lateral patella facet of both knees (more on left side), hence the knee pain is associated with both patellae.  In his witness statement, the Plaintiff has tried to explain this away by saying that due to the partial tear of ACL he shifted his weight to the right leg when he walked, so he developed knee pain and weakness (more so in the left knee) and had to rest after walking for 30 minutes.  But this is not borne out by the medical evidence for Drs Tio and Lam both opine that the diffuse tenderness over anterior aspect of both knee joints should not be due to knee contusion with partial tear of ACL.

51.  In such circumstances, the arthroscopic chondroplasty procedure concomitant with surgical release is plainly for treating the Plaintiff’s articular cartilage disorder (ie chondromalacia patellae).  The procedure is not for simple treatment of deteriorated patellar articular cartilage surface, but one that requires artificial osteochondral plug implantation.  It is unclear whether such surgical procedure has produced any gratifying results, but irrespective of the outcome there is no reasonably persuasive medical evidence before me that they are necessitated by the knee contusion and the partial tear of ACL as a result of the Accident.

52.  As Mr Wu points out, there has been no detectable anterior-posterior and collateral ligament laxity, which is the key concern in respect of any partial tear of ACL.  As explained in Wong Kwok Ming, “ACL is a ligament binding the femur and tibia and can restrict excessive anterior translation motion between the two bones. It is one of the most important ligaments controlling stability”. In the present case, there is no reasonably persuasive evidence that diminution of walking tolerance due to knee pain is caused by the knee contusion and/or the partial tear of ACL, especially when Drs Tio and Lam have made clear the left knee is clinically stable with no ligament laxity. Dr Tio has mentioned that as a result of subclinical instability an ACL tear will make the knee more prone to knee sprain during vigorous exercise and to early degeneration.  But there is no evidence that such propensity to early degeneration will lead to articular cartilage disorder.  Mr Wu argues that the Plaintiff’s present inability to participate in vigorous sports/activities must have been due to PFJ (which has necessitated the knee operation for articular cartilage disorder) and not the partial tear of the ACL.  But in light of the above analysis, I accept that insofar as the Plaintiff’s left knee condition has led to curtailment of his soccer, marathon and trail walking pastimes after the Accident, there is reasonable prospect of establishing that such curtailment is to a minor extent caused by concern over the risk of degeneration or further injury as a result of the partial ACL tear, but mainly by the Plaintiff’s patella/cartilage disorder.

(e)  Parties’ respective case

53.  Ms Cheung submits that the Plaintiff’s injuries and disabilities are not minor, and are in fact more serious than those found in Lam Hung Yui and Wong Kwok Ming since the persistent residual complaints have affected the Plaintiff physically, mentally and socially, and have damaged his matrimonial relationship.  Even if the operation on the left knee is not caused by the Accident, the Plaintiff still has a reasonable prospect of establishing an award for PSLA in the sum of HK$600,000.00.

54.  On the other hand, the Wu Affidavit asserts that the Plaintiff’s claim for PSLA has been exaggerated, and Lam Hung Yui and Wong Kwok Ming are not good comparables because the Plaintiff’s injuries are different and less serious than those found in such authorities.  In any event, there has been no laxity despite the partial tear of ACL, so Mr Wu submits that an award for PSLA should be in the range of HK$250,000.00 to HK$350,000.00.

(f)  Plaintiff’s authorities

55.  Ms Cheung has cited a number of authorities in support of her propositions. I shall attempt to briefly summarise them below.

56.  In Lam Hung Yiu, the plaintiff suffered fracture of right radial head (right elbow) and left distal radius (left wrist).  Open reduction and internal fixation were done for the elbow fracture, and close reduction and external fixation were done for the wrist fracture.  He was discharged after 12 days and attended outpatient treatments until removal of the external fixator. He attended physiotherapy twice and then returned to Mainland China for bonesetter treatment.  The elbow fracture healed with post-traumatic degeneration of the elbow joint and some calcification around the medial epicondyle which might affect the nerve thereby causing numbness and impaired sensation of the forearm and little finger. Development or progression of sensory disturbance might require surgery for transposing the ulnar nerve anteriorly, which surgery would require further rehabilitation. But there was solid union of the wrist fracture. The plaintiff might have some difficulty in returning to his pre-injury job as a painting/decoration worker due to post-traumatic degeneration and inconvenience in lifting heavy objects and performing drilling/hammering work. PSLA was awarded at HK$350,000.00.

57.  In Wong Kwok Ming, the plaintiff suffered multiple bruising and tenderness but no fracture, so he was discharged on the same day.  He was readmitted for persistent swelling over the injured knee, but was discharged after 7 days with analgesics and outpatient physiotherapy.  There was subsequent discovery of partial tear of ACL of the left knee.  A short course of physiotherapy was prescribed and his pain was managed by analgesics.  With moderate ACL deficiency, the plaintiff could cope with daily activities and light sports, but vigorous activities such as soccer should be avoided to prevent further injury to the unstable left knee.  The plaintiff could manage normal daily activities.  Taking into account some degree of exaggeration by the plaintiff, moderate to mild ACL laxity translated to 7% whole person impairment.  The PSLA award was HK$260,000.00.

58.  In Sun Jianqiang v Chan Tai Kau HCPI 1375/2000, DHCJ Carlson (unreported, 16 March 2010), the plaintiff suffered open fracture of left femur (for which he had 4 operations with prospect of another and cosmetic defect caused by the operation scars) and some cracked ribs.  He had to live with pain and undergo extended regime of physiotherapy and exercise to overcome muscle wasting and diminished strength before recovering fluency of ambulation.  After a number of years, the pain was greatly diminished and mobility was restored, and the plaintiff made good but slow recovery.  Although he was unable to return to his pre-accident work as coach-driver, most other jobs short of heavy manual labour were open to him.  The PSLA award was HK$430,000.00.

59.  In Bhim Bahadur Rai v Fung Shing Hong, Hong Kong (a firm) HCPI 776/2007, DHCJ L Chan (unreported, 17 September 2009), the plaintiff’s right hand was crushed by machine resulting in large ragged wounds that exposed tendons/bones with active bleeding and long lacerations of the forearm/hand.  The median/outer nerves and the flexor digitorum superficialis of the 2^nd, 4^th and 5^th digits were crushed.  Transfer of the flexor pollicis longus (which was ruptured) to another tendon was performed. Skin grafts were performed twice.  The plaintiff was admitted again for treatment for wound infection, and had 6-7 and 7-8 months of physiotherapy and occupational therapy respectively.  A reduced but reasonable function of the right hand was preserved, but full empty grip could not be made due to limitation in end-range flexion of the fingers.  The plaintiff could not return to his pre-accident job which required repetitive lifting of heavy objects.  The PSLA award was HK$400,000.00.

60.  In Tsui Nga Yee v Chan Ying Yin HCPI 1100/2005, Master KH Hui (unreported, 8 October 2008), the plaintiff suffered open dislocation of right knee and no circulation/sensation of the right lower limb.  Emergency operation revealed popliteal artery rupture, stretched posterior tibial and peroneal nerves, rupture of both heads of gastrocnemius, and gross laxity of the right knee (anterior and posterial cruciate ligament rupture).  During 55 days of hospitalisation, 2 surgeries and manipulation of right knee were performed. MRI revealed tearing of meniscus and ligament injury and a 3^rd surgery was performed with physiotherapy and occupational therapy thereafter.  The plaintiff had to wear pressure garment to control the lower limb scars.  There was limited recovery of the right peroneal nerve, and progressive recovery of right ankle power/sensation eventually became static.  There was a 4^th operation for ACL reconstruction with physiotherapy thereafter, and gradual recovery of stability to the right knee.  The plaintiff had to take analgesics for her residual pain. He had to use a walking stick and soft knee brace for better stability, but still walked with mild limping gait and right drop foot.  There was laxity and limited range of motion of the right knee, and reduced muscle power of the right lower limb.  The doctors recommended further reconstruction surgeries for tendon transfer and for posterior cruciate ligament.  There was possibility of premature osteoarthritis of right knee.  The plaintiff could not cope with her pre-accident work as she could not take public transport or squat to retrieve files.  The PSLA award was HK$600,000.00.

61.  In Rai Harka Raj v Pacific Crown Engineering Limited HCPI 672/2006, Master KH Hui (unreported, 7 July 2008), the plaintiff suffered multiple injuries, including fracture of 2^nd lumbar vertebra (treated with spinal orthosis) and of left tibia and fibula (treated with open reduction and internal fixation).  Screws were removed on 2 subsequent occasions. The plaintiff received physiotherapy and occupational therapy over an extended period.  He developed urine retention during the initial hospitalisation and erectile dysfunction/pain subsequently due to neuropathic bladder.  He was on sick leave for 2 years and could not return to his heavy manual pre-accident work at construction site.  He had limited walking/sitting tolerance and difficulty in climbing steps due to residual pain.  The PSLA award was HK$700,000.00.

62.  In Tang Chi Wa v Dr Albert YH Chan HCPI 482/2002, DHCJ Carlson (unreported, 14 April 2003), the plaintiff suffered sciatic nerve palsy and permanent right foot drop which required wearing of a foot brace or splint.  He was admitted initially for a month and later for another 7 days. Physiotherapy was provided with no significant effect.  He could walk reasonably well with slight abnormality, but there was reduced strength and range of motion of the lower right leg, eg he could no longer run or play sports at pre-accident level or return to his pre-accident work as surveryor which required climbing.  The serious curtailment of an active social life to a young man and inhibition in wearing shorts particularly in summer due to the foot brace had to be considered.  The PSLA award was HK$440,000.00.

(g)  Defendant’s authorities

63.  I now turn to the authorities cited by Mr Wu.

64.  In Chung Ping Wai v Pedder Logistics Godown Limited DCPI 1770/2007, HH Judge Leung (unreported, 11 June 2009), the plaintiff suffered multiple abrasion/contusion injuries and fracture of head of left radius with mild displacement (treated by screw fixation followed by elbow brace) and right wrist scaphoid fracture (treated by open reduction and screw and K wire fixation as well as open repair of the SL ligament) due to fall from height.  He also attended courses of physiotherapy and occupational therapy. There were mature surgical scars with mild tenderness, mild muscle wasting of right upper limb, and slightly decreased range of motion of right wrist and left elbow.  The elbow fracture healed with some heterotropic ossification, and the wrist fracture healed with some protrusion of distal end of the screw which might cause impingement on the adjacent trapezium. Removal of the screws was recommended for which recovery would require 2 weeks.  The parties’ orthopaedic experts respectively assessed 8% and 4% whole person impairment caused by the injuries.  The PSLA award was agreed at HK$260,000.00.

65.  In Ho Chong Peng v Yue Hin Engineering Company HCPI 1025/2004, DHCJ Mayo (unreported, 1 December 2005), the plaintiff fell from a ladder and fractured his left wrist. Emergency operation with close reduction, external fixation and K-wire fixation was performed.  He experienced considerable pain (which extended to the arm/shoulder, ie a frozen shoulder) and restricted movement and weakness of the wrist over a protracted period.  The pins were removed, and he received physiotherapy and occupational therapy.  After a brief attempt at work, the plaintiff received further physiotherapy. Although the plaintiff suffered considerable pain and suffering, he was found not to be a convincing witness.  Indeed, he worked during sick leave and had no difficulty in performing work as a waiter, which tallied with expert medical opinion that he could physically resume working albeit with some limitations but would not be able to lift heavy weights or work at height in the foreseeable future.  The PSLA award was HK$400,000.00.

66.  In Lee Yuk Man v Hillberg Limited trading as Tsui King Lau Restaurant (FWS) DCPI 988/2006, DDCJ K Lo (unreported, 6 June 2007), the plaintiff suffered contusion injury to right chest wall and right wrist and avulsion fracture of the triquetral bone.  He was treated conservatively, and was prescribed with a splint which was removed after 2 weeks.  He recovered full range of movement of the right wrist and muscle power was good.  There was residual tenderness at right chest and right wrist that equated to 3% whole person impairment, which would make it difficult for plaintiff to return to full duties as a chef. Normal sick leave would be about 3 months.  The PSLA award was HK$160,000.00.

67.  In Yun Pun Yuen, the plaintiff suffered fracture of distal right radius and ulna (ie the wrist) due to fall from a ladder.  He was managed with plaster of paris cast after closed reduction.  There was rotator cuff tear of the right shoulder with complete disruption of the subscapularis tendon and partial tear of supraspinatus tendon for which he received occupational therapy treatment. Subsequent arthroscopy of the right shoulder showed complete rupture of long head biceps and interval tear between the subscapularis and supraspinatus tendon.  Open repair of the right rotator cuff was performed followed by extensive physiotherapy.  Further MRI suggested focal disruption of the anterior part of the supraspinatus tendon, but the plaintiff declined further operation.  He was given 686 days of sick leave.  The wrist fracture healed with mild deviation/tilt and some loss of flexion and with some weakness of the right grip due to pain from the shoulder, but he was unable to abduct or flex his right shoulder joint past the horizontal without flexing the elbow or to hold the flexed position above the horizontal for more than a few seconds.  The injuries/disabilities effectively prevented the plaintiff from returning to his pre-accident job as an air-conditioning and ventilation technician, but would not “mar general activities and enjoyment for life”.  Taking into account that the plaintiff was aged 52 years and was right-handed, the PSLA award was HK$450,000.00.

68.  In Tsui Kwan Fai v Goldfield N & W Construction Company Ltd DCPI 97/2006, HH Judge Stanley Chan (unreported, 24 August 2007), the plaintiff suffered multiple injuries including a fractured right radial head and soft tissue injury to his right wrist and shoulder as a result of fall from height.  He received plaster immobolisation of his right hand.  The fractures healed with full right wrist motion, but there was mild pain on forearm rotation and over distal radius.  The plaintiff had 9.52 months of sick leave. After the accident, he ceased activities like playing basketball and rock climbing.  There was orthopaedic expert opinion that he might develop post-traumatic arthritis of the right elbow.  The parties’ experts respectively assessed the plaintiff to have suffered 6% or 3% whole person impairment.  The PSLA award was HK$300,000.00.

69.  In Cheng Yuk Chun v Winson Cleaning Service Company Limited & ors DCPI 629/2006, HH Judge Leung (unreported, 6 July 2007), the plaintiff fell and injured her right wrist with miscellaneous laceration and bruise.  The facture was treated with close reduction and plaster immobolisation, and she was discharged on the following day.  After the plaster cast was removed she received physiotherapy, but the condition was complicated by development of reflex sympathetic dystrophy (RSD) or complex region pain syndrome (CRPS) which resulted in pain and stiffness of the fingers and wrist. Subsequently, tear of triradiate fibrocartilage cartilage and mild carpal tunnel syndrome were discovered.  When the RSD symptoms resolved gradually, the plaintiff was readmitted for wrist arthroscopy and debridement of the triradiate fibrocartilage cartilage tear, and was discharged days later.  Movement of the right wrist was almost full with residual limitation. The plaintiff was at the end stage of CRPS with slight muscle wasting of right forearm but no entrapment neuropathy of the forearm nerves.  With continued use of her right hand, prognosis was optimistic.  The plaintiff was also found to suffer from adjustment disorder with depressed mood, and required further psychiatric treatment for 1-2 years. Whole person impairment for physical and psychiatric disability was 5% and 5-10% respectively.  She could return to her pre-accident work as a cleaning worker with some initial difficulty in handling heavy weight or possible difficulty in relation to her mental symptoms.  The PSLA award was HK$300,000.00.

(h)  Discussion

70.  Since each case is assessed on its own particular facts, previous cases are merely useful as a general guide/reference.  In some of the above cases, the injuries and disabilities were more serious than those suffered by the Plaintiff, and in other cases they were less serious.  No injuries and disabilities can be exactly the same.

71.  In the present case, I bear in mind that prior to the Accident the Plaintiff was an active person who enjoyed vigorous activities, but had to give up rowing and motorcycle riding because of right wrist disability.  I have found that the Plaintiff gave up soccer partly due to his injuries/ disabilities but mainly due to degeneration of PFJ of his left knee which is unrelated to the Accident.

72.  I also note that whilst the initial injuries did not appear to be serious, he suffered pain and discomfort for a while before the true extent of his injuries (including chronic tear of the SL ligament and early degeneration of the radio-scaphoid joint) was discovered.  Thereafter he has had several surgical procedures done for the right wrist followed by physiotherapy treatment.  It is gratifying that such treatment eventually resulted in good incorporation of the graft to the distal radius and stable SL joint.  Whilst I accept there is still on-and-off right wrist pain upon exertion with some residual stiffness, some limited range of movement of the right wrist due to structural damage on distal radius (ie TFCC perforation), and some inability to lift heavy weight, and x-ray of the right wrist is suggestive of regional osteoporosis due to under-usage, there is no instability of the right wrist even though the Plaintiff continues to wear a wrist brace.  As for the left knee, although I have found there is no reasonable prospect of establishing that chondromalacia patellae degeneration and left knee operation in January 2010 were caused by the Accident, there is no doubt that the Accident resulted in left knee contusion and partial tear of ACL.  In my view, the Plaintiff’s inability to run marathons is caused only to a minor extent by injury to the left knee and mainly due to degeneration of PFJ which is unrelated to the Accident.  In respect of the left knee injury, there was pleasing recovery with no ligament laxity.

73.  I have also taken into account the Plaintiff’s sick leave (but ignoring any part thereof relating to his left knee deterioration and the operation in January 2010), his whole person impairment of 6% to 7.5%, and his matrimonial disharmony even though it was raised almost as an afterthought. I am persuaded that in all the Plaintiff has a reasonable prospect of recovering a sum of HK$380,000.00 for PSLA, and the sum of HK$600,000.00 alleged in the Pre-action Letter, the SOD and the RSOD is overly optimistic.

VI.  LOEC

(a)  Plaintiff’s witness statement and supplemental witness statement

74.  The Plaintiff has resumed his pre-Accident job on 9 January 2009, but only in a supervisory role.  Drs Tio and Lam agree this was a good arrangement, and further agree that although the Plaintiff has reached maximal medical improvement, he will continue to have on-and-off wrist pain upon exertion (which Dr Tio considers is likely to be permanent) that will affect his capacity to handle manual work.  Dr Tio goes further to say that the Plaintiff is able to resume his pre-injury work provided no manual work is involved.  But in any event, there will be reduction in capacity, efficiency and endurance in writing/typing, and aggravation of right wrist pain by prolonged writing/typing, say, after 45 minutes.

75.  The Plaintiff claims he was responsible for managing all matters concerning City University’s staff quarters.  He did typing work (eg preparing reports, replying to emails from university staff etc) for over 6 hours/day, and had to teach his staff about maintenance work and give demonstrations on how to repair water pipes and water pumps.

76.  The Plaintiff says he was employed under a 2-year contract which would have expired on 31 August 2008, but since he did not work for the full 2 years due to the Accident his contract of employment was extended to about October 2009 based on the number of days he was off work.  Before the Accident, he was the only person employed for the post, but City University employed 2 other persons to share his work whilst he was on sick leave.

77.  The Plaintiff claims that when he resumed work after the Accident, his work efficiency was much reduced.  After typing for over 15 minutes, he would need to rest due to increased right wrist pain.  Previously he could type 70 English words and 40 Chinese characters per minute, but after the Accident he can only type 30 English words per minute, so he cannot give immediately replies to many email messages and sometimes he has to bring work home to work late into the night.  Further, since he cannot lift weight over 3kg by his right hand, he cannot move heavy objects (eg water pump etc) to give maintenance demonstration or use his right hand to give demonstration of heavy work.  The Plaintiff says he requires assistance for these tasks, and his direct supervisor is unhappy with him.  He further says that his direct supervisor often criticises his work and/or complains about his inefficiency, but with the support by some professors his contract of employment was extended for another 2 years. However, he is not confident about the future.

78.  In his supplemental witness statement dated 18 February 2010, the Plaintiff claims that previously his work performance has been appraised to be satisfactory, and he has received letters of appreciation from some professors. He further claims that due to his reduced working efficiency and frequent sick leave after the Accident, his supervisor has used various excuses to criticise his work performance with a view to terminate his employment with City University.  According to university policy, employment will be terminated upon issuance of 3 warning letters, and he has already received 2 on 25 November and 1 December 2009 respectively concerning (a) his work behaviour and lack of trustworthiness due to certain remarks he made to some residents concerning his direct supervisor and the complainant, and (b) his mishandling of repair works due to delay in making contact with the relevant resident, carelessness in issuing repeated wrong work orders, and lack of alertness in carrying out damage control.

79.  There is no dispute that the Plaintiff was granted 558 days of sick leave from 26 February 2007 to 8 January 2009 and that his monthly income since February 2009 is HK$24,230.00.  He claims there is reasonable prospect of receiving an award of damages for LOEC in the sum of HK$290,760.00 being 12 months of present earnings. Such claim has been initially explained in the Pre-action Letter as follows:

“In view of the disabilities caused by the accident and according to both experts, there will be reduction in working capacity and efficiency on our client. As such, his accident injury and disability would put him at a disadvantaged position in the labour market and there is substantial risk that he may lose his job sometime in the future. For the sake of amicable settlement, our client is prepared to accept the sum of HK$280,000.00 being around 12 months income under this head.”

(b)  Parties’ respective case

80.  Ms Cheung points out that the Plaintiff does not claim for future loss of earnings since he has resumed his pre-Accident job, but argues that he will be more prone to lose his job than an able-bodied person due to reduction in work efficiency that adversely affects his work performance.  She submits there is damage to his competitiveness in the labour market in that he will have more difficulty than an able-bodied person in searching for similar employment with commensurate income, welfare package and job security if he loses his present job.  Ms Cheung submits that it is not unreasonable in this case to award damages for LOEC based on 12 months of present earnings, ie HK$290,760.00.

81.  On the other hand, Mr Wu submits that (a) most of the Plaintiff’s work could not have been typing, (b) he was not required to do any manual or strenuous work in his present job with City University, (c) there is no evidence he has become disadvantaged due to his injuries and no indication of any need to change job.  Mr Wu argues that with the Plaintiff’s good academic qualifications and solid work experience, he is not expected to be disadvantaged in the labour market due to his injuries.  Mr Wu contends that a reasonable amount for damages for LOEC should be in the range of HK$50,000.00 to HK$100,000.00.

(c)  Plaintiff’s authorities

82.  Ms Cheung cites a number of authorities to support the Plaintiff’s claim for damages for LOEC, and I shall briefly summarise them below.

83.  In Tang Hung On v Crown Rich Transportation Limited & ors HCPI 304/2006, Saunders J (unreported, 21 January 2010), the plaintiff, an experienced cement truck driver, suffered injuries to his right leg with real risk of osteoarthritis and of future surgery for fusion of ankle joint in the event of osteoarthritis. In addition to an award for future loss of earnings, the LOEC award was fixed over a 12-month period, but the judgment does not make clear to what extent the plaintiff was able to resume pre-accident work if at all.

84.  In Lai King Yiu v Acciona Infraestructureas, SA & ors HCPI 444/2008, DHCJ Bharwaney (as he then was) (unreported, 11 May 2009), the plaintiff suffered noise-induced sensori-neural hearing loss and tinnitus amounting to 11.5% whole person impairment, but hearing aid was not required.  He could perform his previous job as a metal worker but would have to wear hearing protection when noise level was high so as to avoid “pain” in his ears when exposed to loud noise.  The plaintiff’s inability to hear warnings at construction site may endanger his own safety, but he had difficulty in picking and choosing work in quieter work environment.  Due to loss of hearing and pre-existing hand disability, 9 months’ loss of earnings as security guard were awarded for LOEC in addition to loss of future earnings.

85.  In Chan Fu Man v Lam Fook Loi HCPI 962/2004, DHCJ Longley (unreported, 21 November 2007),  the plaintiff suffered loss of earning capacity due to fracture of patella of left knee, rupture of posterior cruciate ligament of both knees and rupture of lateral collateral ligament complex.  He had surgery on number of occasions, suffered difficulty in mobolisation (ie carrying a stick), walked with a limp, had walking tolerance of 30-40 minutes, used handrail when negotiating steps, and could only carry weight of less than 5kg.  The plaintiff could not return to his pre-accident work as deliveryman, and HK$60,000.00 was awarded for LOEC in addition to damages for loss of future earnings.

86.  In Wong Pui Seung Shirley v Commissioner of the Independent Commission Against Corruption HCPI 1348/2003, DHCJ Muttrie (unreported, 4 May 2007), the plaintiff suffered de Quervain’s syndrome on and off between 2001and 2005, but eventual healing was expected.  She would always have some weakness and handicap when it came to typing, and she would always have risk of recurrence.  Given the real risk that she might not be able to keep free-lance translation work, the award for LOEC was assessed at 2 years’ income at HK$480,000.00.  There was no award for loss of future earnings.

87.  In Lee Chun Fat v Chan Kin Wo & anor HCPI 1306/2000, V Bokhary J (unreported, 29 May 2002), the assault on the plaintiff resulted in fracture of right patella.  He spent 5½ months in hospital, had 4 operations, and received outpatient physiotherapy for about 16 months.  There was tenderness over the patella and limited movement/motor power of the right knee with residual knee pain/stiffness.  The patella was totally displaced with risk of osteoarthritis in future.  The plaintiff returned to his pre-accident jobs as general worker and watchman, but there was real risk that he would be unable to hold down 2 jobs. Damages for LOEC were awarded on the basis of his earnings as a watchman for just over 12 months in the sum of HK$75,000.00 without any award for loss of future earnings.

(d)  Defendant’s authorities

88.  Mr Wu referred to the authorities in paragraphs 64-69 above for guidance on the range of awards for LOEC:

(a)  Lam Hung Yiu: bearing in mind the plaintiff’s job as painting/decoration worker, an award of HK$35,000.00 was made;

(b)  Chung Ping Wai: agreed at HK$80,000.00;

(c)   Lee Yuk Man: considering the age, monthly income and disability of the plaintiff, HK$50,000.00 was awarded;

(d)  Yu Pun Yuen: in light of the plaintiff’s injuries and disabilities which would disadvantage him in the labour market and given the medical opinion that such disabilities were permanent,  HK$60,000.00 was awarded;

(e)   Tsui Kwan Fai: given the minor degree of permanent impairment and the nature of the plaintiff’s work as an electrical installation worker, HK$100,800.00 was awarded;

(f)    Cheng Yuk Chun: an award of HK$42,000.00 being equivalent to 1 year’s income was made.

(e)  Discussion

89.  An award for loss of earning capacity is an award of damages for handicap in the labour market where a claimant’s injuries and disabilities put him at risk of losing his job and may be a handicap to him in finding a new job, and to compensate him for financial loss (usually a loss of earnings) caused by his injuries.

90.  There is no dispute between the parties that for the purpose of the application before me the Plaintiff will be at risk that at some future date he may lose his present job and has to enter the open labour market, and there is a chance he will suffer pecuniary or financial loss as a result of his disability.  This calls for present assessment of the reasonable value for such risk.

91.  I bear in mind that the Plaintiff was previously and is presently under a two-year contract of employment.  I accept he will have some reduced capacity, efficiency and endurance in typing, but the picture before me in light of the medical evidence is that such disability is not entirely debilitating.  I also accept that he will have reduced capacity in handling heavy objects (which are mainly for demonstrations to staff), but his role is largely supervisory (as he had 7 staff working for him), and only a small proportion of his work is hands-on (see paragraph 11 above).

92.  Notwithstanding his physical difficulties and his fear that his contract of employment may not be renewed, and further notwithstanding that his present employer did employ 2 persons to share his work whilst he was on sick leave, the Plaintiff’s contract of employment in fact has been renewed about 9 months after he resumed work after the Accident.  The Plaintiff attributed this happy outcome to support by some professors, but there is no suggestion before me that such support has waned over time.  

93.  The Plaintiff says the crux of his worry is over the critical attitude of his supervisor whom he believes is looking for pretexts and excuses to terminate his employment. In this respect, the Plaintiff prays in aid the 2 warnings letters he received, which warning letters he says raise the spectre of university policy for termination of employment upon a 3^rd warning letter.  However, it is for the Plaintiff to establish he has “reasonable” prospects of recovering damages (including an award for LOEC) in excess of the District Court jurisdiction, and in considering such “reasonableness”, I also have to bear in mind the contents of the 2 warning letters which refer to poor work behavior, mishandling of repair works and lack of trustworthiness elicited from investigations following complaints by third parties, which concern the Plaintiff’s work performance that is unrelated to any incapacity and/or efficiency arising from his physical disabilities.  Given the documentary evidence, I am not persuaded that any risk of being thrown onto the labour market must necessarily be wholly caused by the injuries and disabilities as a result of the Accident.

94.  Given that the Plaintiff is well educated, has fair working experience in the relevant field, and his largely supervisory and administrative role, I am not persuaded that the Plaintiff will have reasonable chance of establishing damages for LOEC based on 12 months of present earnings.  Whilst I have carefully considered the authorities cited by Ms Cheung and Mr Wu, it is not easy to extract much meaningful guidance from them since in each case damages for LOEC are based on its own factual matrix.  The authorities are useful as a general guide to the factors to be considered, eg the claimant’s qualifications and job skills, the security of his present job, likely impact of his injuries and disabilities in securing a new job if thrown onto the labour market etc, but the assessment itself is necessarily case-specific.  I consider that at best the Plaintiff has reasonable prospect of establishing damages for LOEC in the sum of HK$150,000.00 being almost 6 months of present earnings.

VII.  CONCLUSION

95.  Taking into account the Plaintiff’s reasonable prospect of establishing damages for PSLA and LOEC in the sums of HK$380,000.00 and HK$150,000.00 respectively, and the undisputed sum of HK$343,813.85 for the Other Sums, the Plaintiff is likely to be able to establish a total award of damages of HK$873,813.85. This means that the Plaintiff is unable to show that his claim has any reasonable prospect of exceeding the District Court jurisdiction.  In such circumstances, I have no hesitation in concluding that costs of the action should be on District Court scale of costs.

96.  There is no reason why costs should not follow event.  I hereby grant a costs order nisi that the Plaintiff should pay costs of the Summons (including all costs reserved) to be summarily assessed on High Court scale. As regards summary assessment of costs, I grant the following directions:

(a)  if no application is made to vary the costs order nisi within 14 days from today, the Defendant do within 21 days from today lodge and serve statement of costs pursuant to Practice Direction 14.3, and the Plaintiff do within 7 days thereafter lodge and serve succinct summary of objections in bullet point format of not more than half page in respect of the Defendant’s statement of costs (“Objection Summary”);

(b)  if application is made to vary the costs order nisi within 14 days from today, both parties do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3, and within 7 days thereafter respectively lodge and serve his Objection Summary to the other party’s statement of costs;

(c)   the Defendant do within 14 days from today fix a date with the Listing Clerk for hearing of the summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved;

(d)  any application for variation of the costs order nisi shall be heard at the same time as the hearing for summary assessment of costs.