CHAN KAI SING v. YIP CHEUNG SHING AND ANOTHER

HCPI 505/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 505 OF 2011
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Introduction

1.  This is a claim by the plaintiff for personal injuries suffered as a result of a motor vehicle accident which occurred on 2 October 2009 between a light goods vehicle which he owned and was driving at the time, and a medium goods vehicle driven by the 1^st defendant, who was an employee of the 2^nd defendant.  There is a dispute between the parties as to liability and the quantum of damages that resulted if liability in full or in part is proved.

2.  From the analysis of the evidence and for the reasons that I am about to give, I find that the plaintiff's claim has been grossly exaggerated.  This in my view was a minor accident and resulted in only the slightest of injury to the plaintiff who had a serious pre-existing condition at the time of the accident which was at a very advanced stage and that the injury that he sustained from this accident would have had little if any effect on his pre-existing condition.

3.  Medical records revealed that in the latter part of 2003, the plaintiff sought medical treatment for neck and back pain that he had suffered for more than half a year with no related trauma or injury.  He was diagnosed as suffering with cervical degenerative spondylosis.  Later in 2005, he complained of increased neck pain and limitation to his upper limbs as a result of frequently loading heavy objects at work as a waiter.  He was granted sick leave from March 2005 to April 2009, a period of nearly 4 years.  According to the doctors, he insisted on sick leave certificates in order to support a planned legal action against his employer.

4.  It was in October 2009 that he had the present accident, and according to the doctors insisted on sick leave certificates which he received for a period of the 15 months, until January of 2011.  During this time, he was a self-employed delivery van driver.  Even though he claimed he did not work during this period of time, he kept his van which he sold in June 2011, a month prior to commencing work for the first time in July 2011, as a delivery worker on a motorbike.  Surveillance evidence taken in July 2012, showed him walking and moving normally with natural and full flexion and rotation of his neck.  When he attended the joint medical consultation, a month later, in August 2012, he complained of persistent neck pain with numbness to his upper limbs and of feeling weak and limited in lifting items.  He was also involved in another accident in October 2010 when he ran into the rear of another vehicle and it would appear that this accident was far more serious than the present one as he was taken to hospital by ambulance for neck pain which he did not disclose to his treating doctors.  As observed by the doctors who assessed him in relation to this case, his condition did not limit him from driving in October 2010, which happened to be his minivan.  Both doctors were of the opinion that the plaintiff’s residual pain and symptoms had very little to do with the accident in October 2009 and were a result of pre-existing problems.

5.  Exaggerating a personal injury claim is a serious matter.  It is in the public interest that genuine personal injury claimants are given just and reasonable compensation for the injuries suffered as a result of someone else's negligence.  A fraudulent and exaggerated personal injury claim will not be tolerated and any attempt to deceive the court by falsely stating or overstating the suffering caused can have serious deleterious consequences to the claim and the claimant.  A claimant is obliged to make a true and honest claim and where someone is found to have acted dishonestly or knowingly made a false statement or claim he or she may be liable for contempt of court.  See Summers v Fairclough Homes Ltd [2012] 1 WLR 2004.

The accident

6.  On 2 October 2009 at about 2:30 pm, the 1^st defendant was driving JX9986 travelling along On Kui Street, Fanling, in the direction of Lok Yip Road.  The plaintiff was seated in the driver’s seat in JE5361 which was parked on the right side of the road.  The 1^st defendant claimed that he was travelling at a speed of about 15 to 20 km per hour.  He claimed that as he was about to pass JE5361, the plaintiff veered left into the carriageway colliding into the rear of JX9986.  The plaintiff’s vehicle sustained damage to the left front side.  The plaintiff claimed he was parked at the time of the collision when the vehicle driven by the 1^st defendant veered to the right to pass in front of him.  He turned his vehicle right immediately but the rear part of 1^st defendant’s vehicle collided into the left front side of the plaintiff’s vehicle.  The plaintiff corrected this account when testifying and said that he subconsciously turned the steering wheel to the right slightly but his van was stationary at the time of the collision.

7.  On Kui Street is a one-way street and at the time of the accident it appears that there were vehicles parked on either side of it.  The 1^st defendant’s vehicle was a large and long truck and I am prepared to accept that a large vehicle travelling along the street may come close to parked vehicles on either side.

The injuries

8.  The plaintiff is 55 years of age.  He was 49 at the time of the accident.  He is married with a young daughter, aged 14 years. He has a 30‑year‑old son from a previous marriage who lives abroad.  He had worked as a waiter for nearly 30 years which he stopped when he made a claim against his employer in 2005.  He claimed he worked as a security guard from October 2008 but was unable to produce any salary advices.  He was on sick leave from March 2005 to April 2009.  At the time of this accident in October 2009, he was a self-employed delivery van driver.

9.  The plaintiff claimed that as a result of the accident he sustained injury to his neck. He claimed he believed his neck pain would go away and therefore did not seek treatment immediately after the accident.  Over the next following days, he said he felt severe neck pain and attended the Prince of Wales Hospital for treatment on 6 October 2009.

10.  The resident specialist at the Department of Orthopaedics and Traumatology at the Prince of Wales Hospital provided a comprehensive account of the plaintiff’s medical history in a report dated 13 December 2010[1]. It is appropriate that I set out briefly what is contained there.

11.  It appears in the latter part of 2003, the plaintiff attended the Department of Accident and Emergency of the Prince of Wales Hospital complaining of neck and back pain that he had suffered for more than half a year but with no related trauma or injury.  A physical examination was carried out on him and it revealed that his cervical spine had full active range.  There was no neurological deficit over the upper and lower limbs.  An X‑ray film showed, however, degenerative spondylotic change of the cervical spine.  He was treated with analgesics and physiotherapy.  He was referred to the orthopaedic clinic of the Prince of Wales Hospital on 2 October 2003.  It was not until 21 March 2005 that he was first seen at the clinic.  Later in October 2005, he complained of increased neck pain and left upper limb numbness after frequently loading heavy objects during work.  A clinical examination showed left C6 and C7 radiculopathy.  The condition cervical radiculopathy is sometimes referred to as a “pinched nerve”. 

12.  In later follow-up consultations, the plaintiff claimed that he received neck and back injury at work and an MRI scan of the cervical spine on 7 May 2006 showed C5/6 and C6/7 degenerative disc bulge causing bilateral C5/6 and C6/7 neural foramens stenosis.  Cervical spine surgery had been booked for 9 March 2007 but it was cancelled by the plaintiff on 10 July 2006.  He complained that back pain had not been relieved by physiotherapy and “strongly requested” on 11 January 2007 for a referral to a pain team specialist.  He continued to complain of residual neck pain after trigger point injection steroid therapy. 

13.  In all the follow up consultations, physical examination of the plaintiff, he showed normal upper and lower limbs power and sensation.  It was recorded that he refused to return to his previous work as a waiter and was successfully approved for 50% disability allowance from early 2007.  He completed a Medical Board Assessment in early 2008 but still “strongly requested” sick leave over two years of injury for his planned legal action against his employer.  He was granted sick leave from 2 March 2005 to 6 April 2009 and from the last date defaulted in attending any follow‑up consultations.

14.  Later, on 6 October 2009, the plaintiff attended the Prince of Wales Hospital but this time complaining of neck sprain injury after a road accident on 2 October 2009.  It was recorded that he claimed that he was a driver of a van which was hit by a container truck on its left side.  He said he had neck pain after a sprain injury.  A physical examination showed vital tenderness and sprain over the right paraspinal muscle.  He had full active range of movement of his neck and normal neurology. He was treated by analgesics and neck physiotherapy upon being discharged on 8 October 2009.  He still complained of residual neck pain and right upper limb numbness after he completed a course of physiotherapy.  An MRI scan of the cervical spine showed cervical spondylosis and multilevel degenerating disc disease.  Cervical spondylosis is the wear and tear of the cartilage and bone of the neck and the cervical vertebrae.  There had been no change to his condition compared with the MRI scan dated 7 May 2006.  He was last seen at the Prince of Wales Hospital on 29 November 2010, claiming that he had residual neck pain and sprain which prevented him from returning to work.  He was granted sick leave from 6 October 2009 to 24 January 2011.

15.  The plaintiff had been on sick leave for the first accident from 21 March 2005 to 6 April 2009, and for the second accident from 6 October 2009 to 24 January 2011.  He had been granted sick leave for a period of nearly six years except for a brief period of six months between the two accidents.

The joint medical report

16.  On 31 August 2012, the plaintiff was jointly examined by Dr Chun Siu Yeung, instructed by the defendants, and Dr Lung Ting Kwan, Peter, instructed by the plaintiff[2].

17.  At the time of the examination, the plaintiff complained of pain to the neck and numbness to the upper limbs.  He said he felt weak and was unable to carry more than a few cans of canned food.  On examination of his neck, there was no notable tenderness in the paraspinal muscles. Nor was there any significant muscle spasm or deformity.  An X-ray of the cervical spine revealed that the intervertebral spaces were much reduced in height and osteophytes were present at C4 to C7 vertebrae.  There was segmental ossification of the posterior longitudinal ligament at C4, C5 and C6, and of the C6 to C7 posterior disc annulus.  It was noted that there was advanced degeneration in the lower cervical region.  An X-ray of the lumbar region revealed loss of lumbar lordosis.  The intervertebral spaces were reduced in height and osteophytes were present.  It was noted that degeneration was advanced for a person of his age, which was quite significant in the lower lumbar region.

18.  The plaintiff explained to the doctors that he was working as a minivan driver at the time of the accident.  He said he had stopped his vehicle at the roadside.  He noticed a container truck drive past his vehicle and suddenly the rear end of it hit the left side front part of his van which caused it to move in a single action.  He said he jerked his neck and he felt pain on both sides.  He said he continued working after the accident but did not work on the following few days because of neck pain.  He mentioned he had another accident which occurred on 18 October 2010.  He said he was driving his minivan at the time and drove into the rear end of another vehicle.  He said he felt severe neck pain and was transferred to the Prince of Wales Hospital by ambulance.  He said did not require hospitalisation and did not inform the Department of Orthopaedics and Traumatology at the Prince of Wales Hospital of the incident.  It was noted in the medical records that he had neck pain and left side numbness and hospitalisation was recommended.  He, however, discharge himself against medical advice with four days sick leave.

19.  It is apparent from the joint medical report that the plaintiff’s pre-existing advanced cervical spondylosis would have in any event caused the plaintiff back pain in the absence of injury and that the plaintiff’s later accident in October 2010 would have been a significant cause of injury to him given the circumstances of the accident.

20.  Both Dr Chun and Dr Lung were of the opinion that the plaintiff’s residual pain and symptoms had very little to do with the accident in October 2009 and were a result of pre-existing problems.

21.  Dr Lung diagnosed the plaintiff’s condition as neck sprain with good recovery and an advance degenerative condition of cervical spondylosis with the symptoms under control.  Dr Chun diagnosed the plaintiff’s condition as follows:

“(i) If the traffic accident occurred as described, I agree that there could be minor neck sprain or conventionally called whiplash injury.

(ii) I agree that the minor sprain had attained good recovery.

(iii) He had pre-existing cervical spondylosis, meaning degeneration of the cervical spine. It is noted that his neck pain started since 2003 as he attended AED on 2/10/2003 and from there was referred to DOT clinic first seen on 21/3/2005, about 1.5 years after the referral, indicating that he was still having symptom when he attended DOT clinic after 1.5 years. He complained of neck and back pain on 21/3/2005. He had MRI cervical spine done on 7/5/2006. It was obvious that he had persistent symptom and requested surgery which was arranged but later cancelled by him. It was further reported that he requested referral to pain specialist but despite the steroid injection by pain specialist. And he had been successfully got 50% disability allowance from the attending doctor. It was very unlikely that his symptoms were under control (vide infra).

(iv) When looking at the natural history of neck pain and low back pain, and in the presence of advanced degenerative changes both in the cervical and lumbar spine, he would and will have intermittent recurrences of neck pain and low back pain in the absence of the alleged injury. It is certain that he will NOT remain asymptomatic for the rest of his life in the absence of the alleged traffic accident. Such recurrent symptoms can occur at any time in any event in the absence of the traffic accident.

(v) It is further noted that he bumped his car onto the rear of another vehicle on 18/10/2010 requiring ambulance service to AED QEH immediately for neck pain. This should be another real classical whiplash injury to his neck again. This traffic accident of 18/10/2010 seemed to cause more significant exacerbating effect upon the pre-existing degenerated cervical spine than the accident of 2/10/2009 when looking at the medical evidence from the available medical documentation.”[3]

22.  On the question as to whether the plaintiff’s medical condition was attributable to the accident, the doctors were in general agreement that the accident had minimal effect on his cervical degeneration which was advanced in 2007.  The joint medical report records Dr Lung’s opinion as follows:

“ Dr. Lung thinks the road traffic accident has caused some soft tissue injury in Mr. Chan’s neck and now Mr. Chan is suffering from the residual neck pain. Another major cause of his neck pain and upper limb numbness is the cervical degeneration (MRI proven and causing significant symptoms since 2003, surgery arrangement in 2007). It is not possible to accurately quantify the effect of multiple episodes of neck injuries in 2005 injury on duty, this accident and the road traffic accident in 2010 on Mr. Chan’s disability and loss of earning capacity.

As the advanced cervical spondylosis had warranted Mr. Chan to ask for surgery by then, though not done in the end and the 2010 road traffic accident had led him to ask for ambulance to take him to hospital immediately; from these circumferential evidence, these medical problems seemed to be more major than the 2009 accident. The 2009 road traffic injury is the minor cause of his residual pain and symptoms.

Dr. Lung opines that the road traffic accident happened in 2009 had minimal effect on his cervical degeneration as it was advanced in 2007 and this injury had not prevented him from returning to driving in 2010.”[4]

23.  Dr Chun was more comprehensive in his opinion.  He agreed with Dr Lung’s concluding paragraph and went on to state about the plaintiff that:

“(ii) He had MRI cervical spine done on 23/8/2010 showing no change from the previous MRI cervical spine done on 7/5/2006.

(iii) On the other hand, it appeared that the accident of 18/10/2010 seemed to have at least a more temporary exacerbation effect than the 2009 one but it is likely that there should be insignificant permanent aggravating effect upon the pre-existing degeneration.

(iv) Thus in the absence of the two traffic accidents, because of the pre-existing advanced degeneration on the neck and low back, as the nature of the neck pain and low back pain dictates, he would and will have intermittent recurrences of pain at both sites in the absence of the two traffic accident. In the absence of the two traffic accident, it is certain that he will NOT go through his life unaffected by the pre-existing conditions. Symptoms will occur at any time in any event in the absence of the two traffic accident.

(v) His present symptom of neck pain should be no different from his previous neck pain from 2003.

(vi) His present complaint of radial 3 digits numbness onset date could not tell if indeed genuine, should not be related to the injury of 2/10/2009. It was most likely the natural progressive symptom of the cervical spondylosis. The traffic accidents had no accelerating effect upon the emergence of such symptom.”[5]

24.  Dr Chun also referred to scientific research and medical opinion with respect to neck pain associated with whiplash injury.

25.  Overall it is quite apparent that the plaintiff has grossly exaggerated his injury and whatever injury may have resulted from the accident it would have been relatively minor given the collision between the two vehicles was slight and even with a minor sprain, recovery would have been prompt and any pain that the plaintiff experienced would have been attributable to his pre-existing condition and to the subsequent accident which from all accounts was more serious.  I find that the injury the plaintiff sustained as a result of the present accident was very slight, being a minor sprain with good recovery and that it had no lasting or any effect given the advanced stage of his pre-existing degenerative condition.

The issue of liability

26.  The plaintiff gave various different accounts as to how the accident happened and the nature and seriousness of his injuries as result of the accident.  He made a statement to the police officer on 2 October 2009 who recorded what he said in a statement[6].  He made a further statement to the police on 20 October 2009 which was recorded in writing and signed by the plaintiff[7]. He made a witness statement in support of his claim dated 17 July 2012[8].  He also gave an account of the accident and his injuries to the two doctors who saw him on 31 August 2012 which is contained in a joint medical report dated 2 November 2012[9].  I have already provided a brief account of what he told the doctors. He also gave evidence at trial.

27.  The plaintiff told the police officer at the scene of the accident that he saw the 1^st defendant’s vehicle coming from behind, travelling at a speed of 40 km/hr, wanting to pass along a narrow driveway in front of his vehicle.  He said he feared that there would not be enough space for the truck to pass through and he turned right immediately but the left front of his vehicle was hit by the rear of the truck.  In a later statement to the police on 20 October 2009, he said his vehicle was stationary when it was hit and retracted from his earlier statement that he steered to the right to make room for the truck.  He said the collision happened suddenly and after the 1^st defendant’s vehicle bumped into he is, he turned the steering wheel to the right subconsciously, but without moving the vehicle.  He said he first saw the 1^st defendant’s vehicle when he heard a loud noise next to him.  When the plaintiff testified, he said his vehicle was parked and in “off gear” but the reference to the vehicle being in “off gear” had been crossed out even his statement to the police.  This suggested that the engine of the plaintiff’s vehicle was on at the time and as submitted by the defendants, after checking the road map, drove his vehicle left into the carriageway without looking.

28.  The plaintiff in his witness statement in these proceedings, said that he pulled to one side of the road to study a map.  It appears at the time that he was trying to ascertain a location to make a delivery.  He said he did not see the truck coming from behind but noticed the truck alongside his vehicle when it suddenly veered right and hit his vehicle.  He said he steered to the right after being hit, out of natural instinct.

29.  The plaintiff was a poor witness.  He had as tendency to answer questions by stressing and exaggerating his claim and I found him to be less than frank about the accident and the injuries that he had claimed he had suffered.  He testified that his van was in neutral gear and stationary at the time of the collision.  He said there were no other vehicles in front of him and that the impact of the collision pushed his van against the pedestrian sidewalk.  He said he had both hands on the steering wheel while he was reading the map and he might have subconsciously turned the wheel to the right slightly.  He claimed he did not tell the police officer that he steered his van to the right to make room for the 1^st defendant’s vehicle to pass.  I do not believe him that he did not give this account to the police officer.  The schematic diagram of the accident that he drew at the time showed his vehicle slightly to the right.  He said that upon the collision he instinctively moved his body sideways to the right as he was worried that the windscreen might be shattered.  It was apparent from his evidence that the impact of the collision was minor which caused his vehicle to move slightly sideways to the right.  However, during his evidence he said on occasion that his vehicle did not move as a result of the collision.

30.  The issue is whether the 1^st defendant caused the accident by the right rear side of his vehicle clipping the left front side of the plaintiff’s vehicle when he was either travelling along On Kui Street or seeking to pass in front of the plaintiff’s vehicle, or whether they plaintiff caused the accident by veering his vehicle left into the rear of the 1^st defendant’s vehicle without keeping a proper lookout.

31.  The 1^st defendant gave confusing evidence but tried his best to explain how the accident occurred.  It is a fact that he was driving a large and long container vehicle down a one-way street that had cars parked on either side of it.  He would not have seen what had happened as the cabin of his vehicle had passed the plaintiff’s vehicle.  

32.  I find that the accident occurred in circumstances where the 1^st defendant was driving a vehicle that was fairly conspicuous by its size and length down a one-way street with cars parked on either side which may have resulted in his vehicle coming close alongside the parked vehicles.  The plaintiff was stationary in his vehicle, looking at a roadmap.  Even if he had decided to start his vehicle and move left into the carriageway, given the size and length of the 1^st defendant’s vehicle, it would have been seen by him, especially as the 1^st defendant’s vehicle had nearly passed the plaintiff’s vehicle.  Notwithstanding the unsatisfactory manner in which the plaintiff gave evidence and the changing accounts he gave as to how the accident happened, which would seem to be a product of his desire to exaggerate and make certain his claim, I find that the accident was caused by the 1^st defendant. Given the size and length of the 1^st defendant’s vehicle, I find that did not negotiate his vehicle properly as he was driving down On Kui Street and that the right rear end of his vehicle swiped the left right side of the plaintiff vehicle.  I find that the 1^st defendant was travelling slowly between 15 to 20 km/h and that the collision was of minor impact causing a slight sideways movement to the plaintiff’s vehicle.

33.  It is clear to me that the plaintiff has exaggerated the magnitude of the collision. It was in my view a minor collision.  The plaintiff stated in his witness statement that “As the rear on the right side of the container truck collided with the left door of my vehicle, my vehicle was pushed away from its original position by the impact. … My head and my neck swayed with my vehicle as a result of the impact of the door and my neck was twisted.  I felt severe pain on my neck immediately.”[10]  The point has been made by the defendants that the plaintiff gave two inconsistent accounts.  They argued that according to his first account to the police his vehicle did not move and he would not have experienced any movement as a result of the collision.  Whereas in his witness statement he said that his vehicle moved sideways to the right.  He testified that he suffered no pain at the time of the accident and that he only felt pain a few days after the collision.  And yet in his witness statement he said that he twisted his neck and he felt severe pain.  He claimed in his witness statement that before the accident his health was in good condition.  This was inconsistent with his previous claim for compensation for injury to his neck and back and that had been on sick leave from nearly 4 years prior to the accident.

34.  The plaintiff was not clear as to whether his vehicle moved as a result of the collision.  If it did, it was very slight.  I find that the plaintiff’s vehicle did move sideways to the right.  I also find that the 1^st defendant was travelling slowly and the impact between the two vehicles was not very severe.  I find that as a result, the plaintiff did not suffer any significant injury.  I also find that the injury he sustained did not aggravate or exacerbate his pre-existing condition.

The issue of quantum

1. Pain, suffering and loss of amenities

35.  The plaintiff claimed $250,000 as damages for his pain, suffering and loss of amenities.  It was claimed that he sustained neck injuries as a result of the accident which reduced his physical strength and ability, and prevented him from sleeping normally and engaging in his visual recreational activities.  It was claimed that despite various treatments he suffered pain and stiffness to the neck which severely limited his neck movement and caused numbness and weakness to his arms.

36.  I find that he has exaggerated the injury he claimed he sustained as a result of this accident.  It is not in dispute that he had, at the time of the accident, a fairly advanced degenerating condition of the cervical spine and the accident did not add to any significant degree to his existing disability.  On the evidence before me and on the cases submitted by the parties, I award under this head of damages the sum of $75,000. 

2. Loss of earning

(a) Loss of earning during sick leave period

37.  The plaintiff claimed that at the time of the accident he was a self‑employed delivery van driver earning an average daily wage of $600 during weekdays and $1,000 during weekends.  It was claimed he worked about 26 days and earned about $18,000 per month.  The plaintiff had only commenced his business two months prior to the accident and was unable to provide any documentary proof of income.  I have serious doubts about the figures he gave as he was fairly general and vague about his business, claiming that all payments for his services were settled in cash and that any records he had had been lost.  He testified that he recalled he made $16,000 in September 2009.

38.  The first observation I make is that the claimed monthly income at the time of the accident was in my view an exaggeration.  There was no supporting documentary evidence put before the court and I agree with the submissions of the 1^st defendant that this figure was a gross sum.  I make an allowance for the usual expenses and incidental costs for operating a delivery van, which I calculate at about $4000 per month. In any event, I am not prepared to accept that the plaintiff’s income was as high as $18,000 per month.  I am prepared to allow the $15,000 per month with a reduction of $4000 for expenses and incidental costs which brings the sum to about $11,000 per month.

39.  The plaintiff relied on the fact that he had been granted sick leave from 6 October 2009 to 24 January 2011 which amounted to 476 days (about 16 months).  As noted, the sick leave that had been granted to him was because of his strong insistence for it with doctors.  I find that he did this deliberately to bolster his claim.  It was claimed he suffered loss of earnings of $285,600 over the sick leave period of about 16 months.  I will only allow for a period of 3 months which on a net figure of $11,000 per month amounts to $33,000.

(b) Loss of pre-trial earning

40.  It was claimed that the plaintiff carried on a transportation delivery business.  It involved him driving a light goods vehicle and loading and unloading goods.  It was claimed that due to the severe pain to his neck when lifting heavy objects he was unable to resume his job.  On 4 July 2011, it was claimed that he managed to secure a replacement job as a delivery worker on a motor bike, for which he earned a basic salary of $9,200 and with overtime and other allowances this averaged out at about $10,956.62 per month. 

41.  The plaintiff claimed $310,346.51 for pre-trial loss of earning.  He claimed that because of severe neck pain and the inability to lift heavy objects, he was unable to resume his job as a self-employed delivery van driver.  His sick leave period ended in January 2011 and in July 2011 he returned to work as a delivery worker on a motorbike.  He sold his van in June 2011 and was unable to explain satisfactorily why he kept his van until then if he was not working.  In the meantime, he also had another accident in October 2010 and I note while he was driving his van.

42.  I find that the plaintiff has not told the truth about his pre-existing degenerating condition.  It was claimed that whilst he had suffered from cervical degenerative spondylosis since 2003, he did not regard it as a serious problem as compared to how it was after the accident. This is contrary to the medical evidence.

43.  I have found that the plaintiff has exaggerated his claim.  This finding is supported by the joint medical report of the doctors for the parties who agree that the plaintiff had an advanced degenerating condition of the neck and that the accident resulted only in a neck sprain with good recovery.  Dr Chun stated that a reasonable sick leave should not exceed 4 weeks.  Dr Lung on the other hand noted that 15 months of sick leave from October 2009 to January 2011 was relatively long but thought it appropriate up to May 2010, as he was still receiving physiotherapy treatment at the Prince of Wales Hospital.  He stated, however, it was uncommon for a patient with this kind of injury not to be able to return to work.  In July 2011, the plaintiff went back to work as a delivery worker on a motorbike, earning a basic salary of $9,200 per month which together with overtime and other allowances increased to about $10,957.

44.  Dr Chun was of the opinion that there should be no permanent impairment to the plaintiff from the minor trauma of 2 October 2009.  I entirely agree.  I find that the accident at the most caused only minor trauma and would not have resulted in the injuries as claimed by the plaintiff which he has exaggerated.  Dr Lung was of the opinion that the permanent impairment of the plaintiff was stiffness and mild pain to the cervical spine region.  He said the impairment was not severe and would only impair the plaintiff’s physical activity to a mild extent. According to medical guidelines for the evaluation of permanent impairment, Dr Lung assessed the plaintiff’s impairment and permanent loss of earning capacity resulting from his injury to be 3%.  On the evidence, I prefer the opinion of Dr Chun and find that the plaintiff has no permanent impairment as a result of this accident.

(c) Loss of post-trial earning

45.  The plaintiff claimed $507,123 for post-trial earnings which was calculated by a multiplier of 6 on the basis of the plaintiff having a working life up to 65 years of age. The plaintiff's current monthly income of $10,956.62 was subtracted from his claimed monthly income at the time of the accident of $18,000 which was multiplied by 12 for the number of months in the year and the multiplier of 6.  But as I have already indicated I am only prepared to allow for an income of $11,000 which is roughly the equivalent to the sum he claimed he received since July 2011. 

46.  It was argued on behalf of the plaintiff that he said his health was in good condition before the accident.  As is apparent from the evidence this was contrary to what he said to the doctors he was consulting prior to the accident when he was mounting a personal injury claim against his then employer.

47.  I find that the plaintiff is not entitled to compensation for post-trial earnings or earning capacity.  Whatever the effect of the injury that he sustained as a result of this accident had on him, it was slight with no residual consequences to him.  I find that the accident did not cause him any future loss.  I agree with the submissions of the defendants that the accident did not cause any future loss of earning or earning capacity.

48.  When considering the effect of a pre-existing condition on an award of damages, guidance has been provided in Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 at 527.  I find that the injury was so slight and short lasting that it had no significant if any impact on the plaintiff’s pre-existing condition at the time and no impact in the future.

Pre-trial expenses

49.  Medical expenses in the sum of $1,790, repair costs of the plaintiff’s van in the sum of $17,477.60 and a survey fee of $750 are agreed.

50.  I will allow for tonic food in the sum of $750 and travelling expenses in the sum of $1,250.  The total amount is $22,017.60.

Summary of damages awarded

51.  On the basis of the foregoing, therefore, the breakdown of the damages awarded to the plaintiff in this case is as follows:

Pain, suffering and loss of amenities	$75,000
Pre-trial loss of earnings	$33,000
Post-trial loss of earnings and earning capacity	Nil
Pre-trial expenses	$22,017.60
Total	$130,017.60

Interest

52.  There will be interest on PLSA at 2% per annum from the date of the writ to the date of judgment together with interest on the award of pre-trial loss of earnings and special damages at half of the judgment rate from the date of the accident to the date of judgment.

Costs

53.  There will be an order nisi that the 2^nd defendant to pay the plaintiff his costs of the action to be taxed if not agreed.  There is no order as to costs between the 1^st defendant and the plaintiff as they are both on legal aid.  It is further directed that the plaintiff’s own costs be taxed pursuant to the Legal Aid Regulations.