CHAN YIU MAN v. HA CHING MAN MARIA

DCPI 349/2020

[2024] HKDC 262

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 349 OF 2020

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BETWEEN

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ASSESSMENT OF DAMAGES

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I. INTRODUCTION

1.  This is an assessment of damages in relation to the injury suffered by the plaintiff in a traffic accident at the juncture of Granville Road and Chatham Road South in Tsim Sha Tsui on 4 March 2017 (the “Accident”). At the Accident, the plaintiff started to drive his car forward upon the traffic light having turned green, but was then hit by the car being driven by the defendant through a red light from Chatham Road South.

2.  On 3 August 2020, by consent, interlocutory judgment on liability was entered in favour of the plaintiff against the defendant with damages to be assessed.

3.  It is noteworthy that in his re-revised statement of damages, the plaintiff claims damages over HK$5 million, well exceeding the jurisdiction of the District Court. No reason has been given for why the claim was still commenced in the District Court. One would think that it was either because the plaintiff or his legal advisers well knew that the claim over HK$5 million was highly inflated and unrealistic or because the plaintiff was prepared to waive about HK$2 million claim, although the plaintiff has never said on court record he would claim up to HK$3 million only, and indeed I would not see any reason why the plaintiff would have to waive 40% of his claim if he genuinely thought that he had a claim of HK$5 million. However, the HK$5 million figure was insisted all along until the morning of the date of the commencement of the trial, when Ms Percy Yue (“Ms Yue”), counsel for the plaintiff, took up the case just one working day before, conceded (or waived) most of the claim (for example the claim of future loss of earnings of about HK$3 million), reducing the claim down to about HK$1 million only. I would expect that in the future, if a plaintiff would like to waive any quantum over the jurisdictional limit of the District Court, he or she should expressly say so in the statement of damages; otherwise, he should explain why the case should not be transferred to the High Court. Hopefully, this would make the plaintiff and his or her legal advisers think twice about the quantum before the statement of truth verifying the statement of damages is signed off, filtering off cases which are either highly inflated and unrealistic or out of the jurisdiction of the District Court.

II. WHAT HAPPENED TO PLAINTIFF DURING THE ACCIDENT

4.  The defendant puts the plaintiff to strict proof of what happened to the plaintiff during the Accident. The defendant adduces no evidence.

5.  The plaintiff gives many details of what happened in his witness statement filed on 3 September 2020. According to his witness statement, the defendant’s car hit the left of the plaintiff’s. When this was happening, he heard a big “bang”, and the collision force pushed him partially out of his seatbelt. His rib was pushed against the cushion of the seat, and his right foot was trapped under the brake pedal, and his right ankle sounded out a “pak”. The left side of his car was dented, but the window did not break. He felt so much pain from the left part of his neck to his foot that he could not move out of the car.

6.  During cross-examination, Mr Leon Ho (“Mr Ho”), counsel for the defendant, confronted him with the Accident & Emergency (“A&E”) record of “Unclear MOI of injury”, suggesting that he did not remember how he was injured immediately after the Accident and it would thus be incredible for him to remember the details when making his witness statement which was three and a half years after the Accident.

7.  Ms Yue draws my attention to the photos taken of the plaintiff’s car after the Accident, showing that the car was seriously damaged. I also take into account, besides the general credibility of the plaintiff, the fact that a victim may be too traumatised after such an accident to give details to the doctor at A&E. On balance, I still believe the plaintiff’s account of what happened during the Accident, and accordingly I find that the Accident happened to the plaintiff as described in his witness statement.

III. HOSPITALISATION FROM 4 – 13 MARCH 2017 AFTER THE ACCIDENT

8.  After the Accident on 4 March 2017, the plaintiff was admitted to the A&E of Queen Elizabeth Hospital (“QEH”). According to the record of A&E, the plaintiff mainly complained of neck and low back pain. Physical examination at the A&E showed that the plaintiff suffered left-sided neck pain and left-sided back pain, left forearm superficial abrasion, right ankle mild tenderness with reduced range of motions; no cervical spine tenderness, no spinal tenderness, no swelling or deformity were found; the lower limbs enjoyed full power; there was no bleeding. Further, X-ray was taken, which showed no rib fracture or pneumothorax, no fracture in pelvis, cervical, spine, right wrist and right ankle. The diagnosis at the A&E was neck, back, right wrist and ankle sprain. The plaintiff was transferred to the Department of Orthopaedics and Traumatology (the “DOT”) the same day.

IV. SCANS SHORTLY AFTER THE ACCIDENT

9.  On 24 July 2017, X-ray of the plaintiff’s right ankle was taken and showed no active bony lesion and no bony facture were shown. X-ray of the plaintiff’s left lower ribs was also taken and showed no rib fracture.

10.  On 26 August 2017, MRI of the plaintiff’s cervical spine was taken, which showed (as noted by the Joint Medical Examination Report):-

“(i) Reduced cervical lordosis. Alignment preserved.

(ii) Atlantoaxial distance within normal range, no evidence of C1/2 subluxation.

(iii) Degenerative changes with intervertebral disks appearing desiccated, narrowing of intervertebral disk spaces.

(iv) Mild broad based posterior protrusion at C3/4, indenting into the thecal sac, but not resulting in significant spinal stenosis.

(v) Left paracentral posterior protrusion at C4/5 level is narrowing the left lateral recess and foramen. No significant posterior protrusion resulting on spinal stenosis observed.

(vi) Spinal cord normal attenuation with no evidence of edema, medullocervical junction unremarkable, no tonsillar herniation.

(vii) No intra/extra-axial mass.

(viii) Marrow normal attenuation, vertebral body heights preserved.

(ix) Impression: degenerative changes with mild posterior disk protrusion of C3/4 and C4/5 indenting into the thecal sac and no significant spinal stenosis seen but left C4/5 lateral recess narrowed.”

11.  The MRI was originally scheduled for June 2017, but the plaintiff defaulted. During cross-examination, the plaintiff accepted that he would be very concerned when the doctor referred him to MRI and so he would be eager to attend it. Thus, Mr Ho suggests that the default shows that the extent of injury was not serious or otherwise the plaintiff would not default the MRI. I agree, also taking account that what the MRI showed was indeed not serious but more of pre-existing degeneration.

12.  The plaintiff similarly defaulted a CT scan originally scheduled for August 2017. CT scan was eventually taken showing in C1/2 that although there was slight asymmetry, the “atlantoaxial distance” was still within “normal range”. Indeed, subsequently, on 19 December 2017, when CT scan was carried out again, the scan showed no C1/2 subluxation but only slight asymmetry.

13.  On 3 September 2018, X-ray of the plaintiff’s right ankle was taken again, and showed normal alignment and no bony lesion.

V. PHYSIOTHERAPY TREATMENTS

14.  From 7 April 2017 to 11 May 2017, 5 physiotherapy sessions were arranged for the plaintiff. However, the plaintiff defaulted 2 sessions during that period. Similarly, from 13 July 2017 to 11 September 2018, he defaulted 16 secessions out of 42. For the latter, in his examination-in-chief, in response to Ms Yue’s question, the plaintiff alleged in essence that he felt much pain and could not walk, and did not think that the treatments were helpful. During cross-examination, he adopted the same answers for the period from 7 April 2017 to 11 May 2017. However, he could not explain why during the same periods, he would be able to attend each of the appointments with the treating doctors at QEH (which is in Jordan far away from the plaintiff’s home in Yuen Long) but not those secessions in Tin Shui Wai and Tuen Mun. Further, his explanation was inconsistent with the explanation for the default for the period from 7 April 2017 to 11 May 2017. In his witness statement, he alleged that after the sessions he had attended, he felt more pain and so defaulted.

15.  Further, one would have expected that if the treatments had been ineffective or even worsening, the plaintiff would have told the physiotherapist or the treating doctors, rather than simply defaulting. However, the medical records do not show any such record.

16.  Mr Ho suggests during the cross-examination that he did not attend the treatments because there was no sick leave for those treatments. I do not have to go so far, but in the circumstances, I find that the plaintiff’s injury was not so painful and not so serious and therefore, the plaintiff did not feel the need to attend each treatment sessions arranged for him.

VI. PLAINTIFF’S OPERATION IN SEPTEMBER 2019

17.  On 24 January 2019, MRI of his right ankle was performed. The MRI showed, inter alia, osteochondral lesion of the talus (“OLT”). The plaintiff was then referred to DOT Foot and Ankle Clinic for treatment. He, however, defaulted a follow-up appointment on 25 March 2019.

18.  On 26 September 2019, the plaintiff was admitted to QEH for osteochondritis dissecans of talus. Operation, namely, chondorplasty and fixation of the right ankle, was performed on the following day, that is, 27 September 2019. He was discharged on 4 October 2019. Subsequently, he attended the DOT for a few times for follow-up treatments.

19.  On 25 August 2020, the DOT of QEH saw the plaintiff the last time. X-ray of his right ankle showed that the osteochondral lesion had healed well.

20.  Whether the OLT was contributed to by the Accident had been an issue before Ms Yue took up the case. In her supplemental opening submissions, she conceded that the OLT may not be related to the Accident and thus the Court does not need to deal with any sick leave and so on in relation to the OLT.

VII. JOINT MEDICAL REPORT

21.  Dr Fu Wai Kee (“Dr Fu”) for the plaintiff and Dr Chun Siu Yeung (“Dr Chun”) for the defendant prepared a joint orthopaedic report dated 27 July 2021 (the “JOR”) upon a joint examination they conducted on the plaintiff on 4 March 2021. They were not called to give oral evidence during the trial.

22.  In the JOR, the experts discussed the diagnosis and causation in the order of right ankle, chest wall pain, right wrist, neck, and low back pain and sprain. I shall analyse their evidence in the same order insofar as they are still relevant after Ms Yue’s concessions as mentioned above. Where appropriate, I will consider the expert evidence together with other evidence.

Right ankle

23.  While the plaintiff complains that his right ankle pain weakens his right lower limb, according to the medical record of 2 November 2017, there was only record of the plaintiff’s left lower limb pain but no record of the plaintiff’s right lower limb. Similarly, the medical record of 18 January 2018 recorded that the power of the right lower limb was 5. Mr Ho does not deny that there was pain in the plaintiff’s right ankle after the Accident, but he submits that the pain should be minor and should have subsided shortly after the Accident.

24.  Here, in my view, absent any neurological deficit and other structural damage, the injury caused by the Accident to the plaintiff’s right ankle should be minor and the plaintiff should have fully recovered from it shortly after the Accident. I take Ms Yue’s point that the plaintiff could not be said to have been a malinger in respect of his right ankle pain because it was indeed subsequently discovered that he suffered from OLT, which, though, is accepted to be unrelated to the Accident.

Ability to walk after the Accident

25.  As regards the plaintiff’s ability to walk after the Accident, Ms Yue highlights to me that various medications were prescribed for the plaintiff, in particular, some nerve painkillers were prescribed. Ms Yue submits that this is evidence of the seriousness of the plaintiff’s injury right after the Accident. The prescriptions were only a factor I have to consider, and I bear in mind that treating doctors usually have to treat their patients on the basis that the patients’ complaints are true, even though undeniably, pain is something that can be very subjective or even be subject to manipulation.

26.  The plaintiff stayed in the hospital until 13 March 2017. QEH medical notes recorded, among others, that on 5 March 2017, “Patient sleep well… verbalized not much pain perceived when stays static in bed”. Further, according to the medical records of QEH, on 6 March 2017, the plaintiff “walk[ed] unaided, steady at ward”. Similarly, a medical record of 8 March 2017 recorded that the plaintiff was “able to walk unaided”. When asked about these records in cross-examination, the plaintiff denied that he walked unaided and steadily. He alleged that even from his bed to the washroom, he could walk only with assistance. During re-examination, when a question was framed in an attempt to elicit an answer that he could only walk unaided and steadily in the ward but not outside, the plaintiff was still firm that he could not walk without assistance even within the ward.

27.  Ms Yue also draws my attention to an assessment form showing that from 5-13 March 2017, the plaintiff’s physical activity and mobility was impaired and he was provided with walking aids and/or with assistance in ambulation/sitting out. Ms Yue also draws my attention to the medical records of 29 May 2017, 24 July 2017, 7 September 2017 and 2 November 2017, all of which recorded that the plaintiff was “walking with stick”.

28.  During the cross-examination, when asked why there is such a medical record that he could “walk unaided, steady at ward” on 6 March 2017, the plaintiff could not explain. That said, I note from the Spine Assessment Form of Physiotherapy Department dated 8 March 2017 that the plaintiff’s walking distance was more or less[1] than 1 ward length. Taking into account HHJ Freedman’s reminder in Naziyah Ismail v Ciaran Joyce [2020] EWHC 3453 (QB) at §§30-31 that medical records may not be precise, I think that this Assessment Form provides the explanation, that is, the record that he could “walk unaided, steady at ward” means literally that he could walk unaided within the ward.

29.  Having found that the right ankle injury was minor and the plaintiff had fully recovered shortly after the Accident, as well as that he did not find the pain so serious that he had to attend each and every physiotherapy treatment sessions, I find that at latest on 29 May 2017 (for which the hospital record recorded “R ankle: no swelling” and “ROM full”), the plaintiff should be able to walk normally and unaided unless there was anything unrelated to the Accident. Mr Ho asks me to find that the plaintiff deliberately lied about his walking ability. I take into account that pain or other symptoms may sometimes be exaggerated due to an unconscious psychological reaction: see Hung Sau Fung v Lai Ping Wai And Another [2012] 1 HKLRD 1 at §58; also Kemp & Kemp – The Quantum of Damages Volume 1 R.166: January 2023 at §§32-034. I cannot rule out that the plaintiff may not feel secure enough to walk without a stick shortly after his full recovery of walking ability, having suffered from the Accident and walked with assistance during most of the time of the hospitalisation after the Accident. I also consider that there is a possibility that the plaintiff did feel pain in his right ankle due to the OLT not caused by the Accident. In the circumstances, I do not think there is cogent evidence to find that he intentionally lied about his walking ability.

Chest wall pain

30.  Both experts noted that the plaintiff complained of chest wall pain after the Accident. They do not appear to dispute that the plaintiff did suffer such pain. They also agree that the plaintiff should have well recovered from the chest wall pain caused by the Accident at latest a few months after the Accident. (I note that Dr Chun specified that the chest wall pain complained of on 29 May 2017 was unrelated to the Accident, while Dr Fu notes that the plaintiff “did not complain of it a few months [after the Accident] and during our examination”. I do not think this difference would cause any significance impact here.)

31.  Accordingly, I find that the plaintiff should have well recovered from the chest wall pain caused by the Accident at latest a few months after the Accident. In other words, the chest wall pain was not serious at all.

Right wrist

32.  Both experts agree, and so I find, that “any wrist injury should be a minor soft tissue sprain of the right wrist”.

Neck and left upper limb pain

33.  The dispute is over the extent of the neck pain and the left upper limb pain, and whether the Accident contributed to the pain.

34.  Dr Chun’s diagnosis is that the plaintiff’s neck pain was soft tissue sprain of the neck. Dr Chun opines that “The 3/4/2017 [the time of the Accident] left paraspinal muscle tenderness whole C spine and also left trapezius was not consistent with the initial physical finding but suggestive of exaggeration and expansion. On 29/5/2017 his cervical spine was found to be non-tender be it the cervical spine or the paraspinal muscles and with full ROM. At the 18/1/2018 DOT clinic complaint of left upper limb numbness, reduction of the left upper and lower limb muscle power and decreased light touch sensation of the whole left upper limb is inappropriate and not consistent with the MRI and CT findings but most likely symptom expansion and exaggeration.” In gist, Dr Chun thinks that the plaintiff has exaggerated the extent of his neck pain and in particular the left upper limb numbness and pain.

35.  Dr Chun opines that the neck pain falls into the third scenario, namely, it is certain that the plaintiff would or will have suffered pain and weakness and stiffness at any time in any event, taking into account that neck pain without traumatic incident is high in the general population, referring to A Best Evidence Synthesis on Neck Pain: Findings from the Bone and Joint Decade 2000-2010 Task Force on Neck Pain and its Associated Disorders. Haldeman S et al, Spine 33, 4S 2008.

36.  Dr Fu’s diagnosis is also that the neck injury was soft tissue injury of the neck. As regards whether the Accident contributed to the neck pain, he reasons that (1) the pre-existing degeneration at C3/4 and C4/5 was mild and would not cause any genuine neurological deficit; (2) it is common that such degeneration is asymptomatic and there is no evidence to suggest here that the plaintiff had already suffered symptomatic degeneration; and (3) it is common that an accident would turn the asymptomatic degeneration into a symptomatic one. Unlike Dr Chun, Dr Fu does not refer to any statistics or articles in support of his opinion (3).

37.  Dr Fu then concludes that out of the three possible scenarios of pre-existing conditions, the plaintiff’s condition falls into the second scenario, namely, there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state. He admits that there is no scientific method to work out, but he estimated that the Accident has advanced his neck and left upper limb pain by 5 years.

38.  As regards the left upper limb numbness and pain, Dr Fu did not traverse Dr Chun’s opinion, but mildly puts that “MRI revealed degenerative changes with mild disc prolapse C3/4 and C4/5. There was some narrowing of left C4/5 lateral recess and foramen. The narrowing should have caused some irritation of the nerve root that led to some numbness and pain in the left upper limb. However it should not cause genuine neurological deficit.”

39.  In my view, as regards whether the Accident contributed to the neck pain, I take into account the lack of evidence of pre-existing complaint of neck pain and the presence of evidence of the plaintiff’s immediate complaint of neck pain recorded in the A&E medical records, but I agree with Dr Chun that the plaintiff has exaggerated his neck symptoms, given the lack of any neurological or other structural damage found that would lead to the extent of the pain complained about by the plaintiff. Further, Dr Fu does not explain how the Accident would have turn the asymptomatic degeneration into a symptomatic one and in any event Dr Fu does not explain how the symptoms now complained of would be caused, and the only symptom he could explain by reference to the structure is “irritation of the nerve root that led to some numbness and pain in the left upper limb”. On the contrary, Dr Chun relies on statistics and an article in support of his opinion. Further, considering that both experts agree that the neck injury was soft tissue injury only, I accept Dr Chun’s opinion and therefore find that the plaintiff would or will have suffered pain and weakness and stiffness at any time in any event.

40.  In relation to the left upper limb numbness and pain, according to the medical records, on 7 March 2017, the power for both upper limbs was “5/5” and sensation was “intact and symmetrical”. On 8 March 2017, there was no record of numbness on the right hand and arm, and the power for the left upper limb was also 5/5. When the plaintiff was discharged on 13 March 2017, similarly, the power remained 5/5. That said, the medical record of 3 April 2017 recorded the left upper limb power was “4 – C5-7 due to pain, C8-T1 5/5”, and “diffused tenderness with over-reaction upon superficial palpation” was recorded in the medical record of 2 November 2017. I do not see any reason why absent any neurological deficit or other structural damage, the plaintiff’s left upper limb would feel numb or weak as time went by and even at the joint examination. At most, it was due to the pre-existing degeneration and in any event minor. Further, having considered Dr Chun’s opinion and the absence of Dr Fu’s opinion to traverse the former, I find that there is little numbness and pain in the left upper limb due to the pre-existing degeneration and there is no reduction of muscle power in the left upper limb caused by the Accident. Mr Ho invites me to find that the plaintiff intentionally faked the numbness and pain here. Giving the plaintiff the benefit of doubt that he may have little numbness and pain due to his pre-existing degeneration and may be exaggerating unconsciously, I do not go so far to make such a finding.

Low back pain

41.  There is not much real difference between the experts over the plaintiff’s low back pain. Dr Chun opines that the plaintiff should have recovered from it within a short period of time after the Accident, while Dr Fu, having noted that the plaintiff did not complain of back pain “after [a] few months”, opines that the plaintiff should have recovered well, without specifying the time by which he should have recovered.

42.  I find that the plaintiff should have recovered from the low back pain shortly after the Accident. Thus, the low back pain was a minor injury only.

Sick leave

43.  Dr Chun’s opinion, based on his opinion with regard to the above, is that sick leave should be for 2 months only, while Mr Ho accepts the sick leave of 4 months. Dr Fu’s opinion is that the sick leave (from 4 March 2017 to 11 September 2018) issued by his treating doctors is appropriate. Since I have accepted most of the Dr Chun’s opinion, and considering the relatively minor extent of the injury suffered by the plaintiff as I have found above, I take Mr Ho’s acceptance of 4 months.

VIII. PLAINTIFF’S OTHER COMPLAINTS

44.  In his witness statement, the plaintiff complains that he could not sleep well because if he turns his body, the pain in his right ankle would wake him up. Thus, he has to take analgesics pills before going to bed every night. However, no medical records show such complaint. There is no reason why the record would not show such complaint had the plaintiff really suffered from bad sleep and made such complaint. Taking into account the extent of the injury I have found above, I disbelieve the plaintiff in this respect. The plaintiff intentionally fabricates his difficulty in sleeping.

45.  The plaintiff also complains that after the Accident, he has to stay home longer, and he gets agitated more easily. He had developed a suicidal tendency. He even told this Court in the witness box that he had consulted psychologist or psychiatrist twice upon public hospital’s referral. However, again no medical records show this. Ms Yue draws my attention to some records on the plaintiff’s mental status and psycho-social status, but obviously if the plaintiff had any suicidal tendency, and/or if the plaintiff were referred to psychologist or psychiatrist, there would have been clear record of the same. Taking into account the extent of the injury I have found above, I again disbelieve him. He deliberately fabricates his suicidal tendency.

IX. PSLA

46.  The injuries suffered by the plaintiff are soft tissue injuries only. The extent was relatively minor. Thus, I find the cases on PSLA referred to by Mr Ho (Lai Ka Yin v Chan Yiu Kei, DCPI 453/2008, unreported, 7 January 2009; Cheung Mau Fa v Regent Construction Co Ltd [2018] HKDC 332 and Hui Po Chi v Trade Travel (Hong Kong) Limited [2022] HKCFI 1929) are more appropriate to serve as a starting point.

47.  In my view, the plaintiff here is similar to the plaintiff in Lai Ka Yin v Chan Yiu Kei, where the plaintiff there suffered from soft tissue injury of her neck and back, had 42 days of sick leave and was able to return to her previous job, and was awarded PSLA of HK$50,000. The plaintiff here is less serious than Cheung Mau Fa v Regent Construction Co Ltd and Hui Po Chi v Trade Travel (Hong Kong) Limited given that the plaintiff (awarded PSLA of HK$150,000) in those two cases suffered mild adjustment disorder.

48.  Having considered the circumstance, I award PSLA of HK$100,000.

X. INCOME PRIOR TO THE ACCIDENT

49.  The parties agree that the plaintiff’s monthly income at the time of the Accident was HK$33,000.

XI. PRE-TRIAL LOSS OF EARNINGS

50.  HK$33,000 x 4 = HK$132,000

XII. FUTURE LOSS OF EARNINGS

51.  The plaintiff no longer claims this head of damages upon Ms Yue taking up the case.

XIII. SPECIAL DAMAGES

52.  The parties agree that the special damages are HK$9,000.

XIV. PROPERTY DAMAGES

53.  The parties agree that the car damages are HK$32,000.

XV. SUMMARY OF QUANTUM

54.  In summary:-

(1)	PSLA	HK$100,000.00
(2)	Pre-trial loss of earnings	HK$132,000.00
(3)	Future loss of earnings	HK$0.00
(4)	Special damages	HK$9,000.00
(5)	Property damages	HK$32,000.00
		_____________
	Total	HK$273,000.00

XVI. ORDER

55.  In the circumstances, I order that:-

(1) The defendant do pay the plaintiff HK$273,000;

(2) There be interest on PSLA from the date of the Writ of Summons herein until today at 2% per annum;

(3) There be interest at half of the prevailing judgment rate for pre-trial loss of earnings and special damages (including property damages) from the date of the Accident until today.

(4) There be judgment rate on the above sums (1)-(3) at judgment rate.

56.  As mentioned at the outset, the plaintiff only waived his lucrative claim in the morning of the commencement of the trial. Further, the award I made above essentially is the same as the amount the defendant has been taking all along. Thus, I make a costs order nisi that the plaintiff shall pay the defendant costs of this assessment of damages with certificate for counsel, to be taxed if not agreed. As regards the basis of taxation, although I found that the plaintiff deliberately lied about his sleeping difficulty and suicidal tendency, this is only a small part of the plaintiff’s case in the overall scheme of things that has little impact on the quantum assessment here, and thus I do not see fit to tax on an indemnity basis in the order nisi.

57.  Since the plaintiff is legally aided, the plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations.