LO KWOK FAI v. LO KWOK FAI

HCPI 757/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 757 OF 2001

____________

____________

_______________

J U D G M E N T

_______________

The background and principal issues

1. In the early hours of 4 April 2000, the Plaintiff, Lo Kwok Fai, a self-employed taxi driver working the night shift, was driving his taxi through the Tate's Cairn Tunnel towards Kowloon. As is not uncommon late at night, one tube of the tunnel was closed to traffic for cleaning or maintenance, so that a single tube was in operation for two-way traffic. While doing so, the Plaintiff was involved in a head on collision with a Mercedes Benz private car driven by the Defendant. It is clear from photographs of the accident that the impact was severe, and the damage to both vehicles was considerable.

2. Although liability was initially in issue, on 24 October 2002, the Defendant admitted liability. Accordingly the trial proceeded in relation to quantum only.

3. As a result of the accident, the Plaintiff was rendered unconscious for a short time not more than one hour and perhaps rather less. He was taken to the Prince of Wales Hospital, where he was found to have head, arm and hip injuries. The radius and ulna of his right forearm were fractured, and it was necessary for him to undergo an operation on his arm in which open reduction and plating was performed. He also suffered a fracture of the right acetabulum, but this did not require surgery. There is no report of his having received any particular treatment for his head injuries at this time.

4. He was discharged from the Prince of Wales Hospital on 12 April 2000, and underwent physiotherapy for some time thereafter. However, he was subsequently admitted to the United Christian Hospital between 7 June 2000 and 13 June 2000, complaining of headaches, and was given a CT scan of the brain, which revealed the existence of two subdural haematomas, one of which was thought by the attending doctor to be related to the accident, the other being thought to be due to a subsequent incident however, the Plaintiff stated in his witness statement that he had suffered no other head injury after his accident, and believed both haematomas to have been results of the accident. This was not challenged in cross-examination. He was subsequently readmitted to United Christian Hospital twice, for follow up brain scans, between 10 and 12 July 2000, and 26 and 28 July 2000.

5. Thereafter, he had follow up visits to the outpatient department of United Christian Hospital in September 2000 and January 2001, after which he was examined on a number of occasions by the opthalmology unit of that hospital, as he had complained on the latter occasion of blurred vision. The examination by the ophthalmology unit in April 2001 confirmed that his vision was affected, with a mild macular scar and a small choroidal crack nasal to the disc in his right eye, and mild cellophane maculopathy in his left eye. After a number of follow up visits, a fluorescein angiogram was performed in May 2002, which was consistent with the findings on the earlier visit. The question of whether or not the deterioration in the Plaintiff's vision after the accident (it not being suggested that his pre-accident vision was anything other than normal) was caused by the accident was one of the main issues at the trial.

6. Following the accident, the Plaintiff did not work for over two years. Sick leave certificates were issued by the hospitals and doctors whom he consulted, covering the period from his first discharge from hospital on 12 April 2000 until 25 July 2001. Bearing in mind that he was in hospital from 4 April 2000 until 12 April 2000, this represents a period of 15 months and 21 days. He remained unemployed until September 2002, when he obtained work as a shampoo boy in a hairdressing establishment, at a monthly wage of $4,500. This compares with his pre-accident occupation as a night shift taxi driver, in which he says he earned some $15,600 per month, by working 26 days a month for net earnings of about $600 per day. This level of pre-accident earnings was challenged by the Defendant, and was another of the main issues at the trial.

7. The Plaintiff complains that as a result of the accident, he is unable to enjoy his former hobbies of playing football and jogging. He also says that he continues to suffer from pain in his right arm and hip, and weakness in his right arm. He says that he cannot stand for very long (not more than about half an hour) without feeling discomfort and pain, and that sitting for long periods (over two or three hours) also causes him discomfort. He says that he suffers from headaches for up to 45 minutes twice a day, and also has attacks of dizziness. As a result, he says he has lost much interest in life, rarely socialising with his friends, and doing relatively little around the house. He says that because of the headaches and tiredness, he has also suffered a loss of libido, and his sex life with his wife, which was formerly healthy, has also suffered.

8. Although the Defendant accepted that there had been some permanent impairment in the Plaintiff's health and physical condition, the Defendant challenged the Plaintiff's account of his current problems in cross-examination, and suggests that his situation is not as bad as he makes it out to be, at least in relation to the allegations of headache and dizziness.

9. Finally, the Plaintiff says that as a result of his blurred vision he considers it unsafe to return to his pre-accident work as a taxi driver, and has not tried to do so. The Defendant submits that in the light of the medical evidence, there is no reason why the Plaintiff cannot now return to work as a taxi driver.

10. I propose to deal first with these main areas of dispute, and thereafter to assess the damages to which the Plaintiff is entitled under the various heads in respect of which damages were claimed.

11. Apart from the medical reports from the hospitals and doctors by whom the Plaintiff was treated, which were treated as agreed evidence pursuant to the directions given by Master Kwan on 5 February 2002, medical reports on the Plaintiff's condition were also provided by three medical experts who were jointly instructed by the parties pursuant to such directions. These were Dr Lam Kwong Chin, an orthopaedic specialist, Dr Kan Yiu-ting, a neurologist, and Dr Paul Cheung, an ophthalmologist. I shall consider their reports and views below, in the context of the various issues which arise for decision.

Whether the Plaintiff's eye problems were caused by the accident

12. The first main issue which arises for decision is as to whether or not the deterioration in the Plaintiff's vision was caused by the accident. It is clear that the Plaintiff does suffer from diminished visual acuity. This is apparent from three medical reports provided by Dr Li Siu Hung of the United Christian Hospital's Department of Ophthalmology, dated 10 December 2001, 12 January 2002 and 17 June 2002 respectively. In the first of these reports, he expressed the view that the scar and crack in the Plaintiff's right eye "might be due to the trauma" of the accident on 4 April 2000. In the last of these reports, he stated that foveal changes to both eyes, and the subretinal scar in the right eye "could be traumatic in origin".

13. Dr Paul Cheung provided two reports on the Plaintiff's eye problems, both of which also confirmed that the Plaintiff's vision was impaired. In the first report, dated 11 April 2002, Dr Cheung states that the Plaintiff said that he noticed blurring of vision in July 2000, and that his eyesight prior to the accident was good. When Dr Cheung examined the Plaintiff on 13 March 2002, he was unable to find the scar or the choroidal crack observed by Dr Li. At this stage, Dr Cheung concluded that the cause of the visual problems was most likely idiopathic -   explaining that this meant that no cause could be found. He expressed the view that the visual problems were unlikely to have been the result of the accident, as there was no history of direct injuries to the eyes, and because the blurring of vision was not noticed by the Plaintiff until some time after the injuries. He accepted, however, that it would be more appropriate to come to a final view after the results of the fluorescein angiogram (which had not yet been performed) were to hand.

14. Following the fluorescein angiogram, Dr Cheung provided a further report dated 10 July 2002, in which he noted the results of the angiogram, and agreed with the opinion expressed by Dr Li on 17 June 2002 that the scar shown by the angiogram "could be traumatic in origin". However, he also repeated his view that the condition could also be idiopathic, and again pointed out that there was no mention of injury to the Plaintiff's eyes in the medical records. It seems that had there been some mention of such injury, Dr Cheung would have accepted that the scar was caused by the accident. Dr Cheung said that the possibility that such an injury was overlooked could not be ruled out, but in the end was not able to decide whether the blurring of vision was traumatic or idiopathic in origin.

15. In his evidence in chief, the Plaintiff initially said that he first noticed blurring of vision in July 2000. The first mention of blurred vision in the medical records is in the report of his outpatient visit to United Christian Hospital on 4 January 2001. This report notes that the Plaintiff was already suffering from blurred vision, but does not indicate when he first noticed the condition. However, the Plaintiff went on to say that in fact he suffered from headaches and blurred vision from the outset, and that while he at first thought that the blurred vision might be connected to the headaches, he later realised in about July 2000, after the headaches had cleared, that this might not be the case, since the blurred vision persisted.

16. The Plaintiff was pressed in cross-examination as to when he first noticed blurring of vision, and maintained that he noticed it from April 2000, although he accepted that he may not have complained about it to the doctors until July 2000 or possibly later. He accepted that there was no direct injury to his eyes at the time of the accident, which I take to mean that there was no visible injury, and no injury noticed or pointed out by the attending doctors at the time.

17. Having observed the Plaintiff giving his evidence, I am of the view that notwithstanding that (as appears below) the Plaintiff had in some respects a tendency to adhere to his position, even in the face of documented or independent evidence to the contrary, his evidence in relation to when he noticed the blurring of vision was reasonably consistent and credible. It is plausible that he may not initially have regarded the blurring of vision as a problem separate from his headaches, but only did so after the headaches had cleared, and I accept his evidence in this respect.

18. Counsel for the Defendant pointed out that the burden was on the Plaintiff to establish, on a balance of probabilities, that the deterioration in his eyesight was caused by the accident, and emphasised the language used by both Dr Li and Dr Cheung, stressing that Dr Li did not say that the Plaintiff's eye problems were more likely than not caused by the accident. On the other hand, counsel for the Plaintiff drew my attention to the decision in Lee Kin-kai v Ocean Tramping Co Ltd [1991] 2 HKLR 232, in which the Court of Appeal held that causation was a matter to be determined by the judge using a common sense approach when applying the standard of proof on a balance of probabilities to facts and the medical expert evidence. In that case, Hunter JA pointed out (at pp.235I to 236B) that the law and medicine apply different standards to the question of causation in that causation in the legal sense is established if it is shown on a balance of probabilities that the accident was a substantially contributing cause of the injury, whereas doctors tend to look for "clinical cause" applying a standard of proof beyond a reasonable doubt or perhaps even beyond any doubt.

19. It seems to me that having regard to the language of Dr Cheung's reports, particularly his second report, that he may have been trying to determine the question of causation to this higher level, since he appears to be trying to decide one way or another whether the condition was due to the accident or not. Dr Cheung was not called to give evidence (in accordance with the directions which had been given) so that it was not possible to explore this issue with him. I do not, however, regard his inability to ascribe a cause to the deterioration of the Plaintiff's vision as being fatal to the Plaintiff's claim on this point.

20. At the end of the day, it seems to me that having regard to the facts that the impact of the accident was clearly severe, that the Plaintiff undoubtedly suffered some head injury in the accident (as he was rendered unconscious and subsequently was found to have subdural haematomas), that the Plaintiff states that he has not suffered any other head injury (and this was not challenged), and that there is evidence of physical internal injury to his eyes, common sense suggests that it is more likely than not that such injury (which may not have been visible externally) was sustained in the accident. Although the medical evidence cannot confirm this conclusion, neither does it rule it out. Accordingly, I find that the Plaintiff has established, on a balance of probabilities, that the accident was a substantially contributing cause to the deterioration in his vision.

The Plaintiff's pre-accident earnings

21. The second main area of dispute related to the level of the Plaintiff's pre-accident earnings. As I have noted above, the Plaintiff said that prior to the accident his earnings were about $600 per day, net of expenses, and that he worked 26 days each month, producing a monthly income of $15,600. The Plaintiff was unable to produce any documentation, whether in the form of tax returns, bank statements and passbooks, or otherwise, to substantiate this level of income. He said, however, that he worked longer hours than most of his colleagues as he had a mortgage to pay, and that he believed that night shift drivers earned as much as $150 to $200 more per day than daytime drivers, as hirings tended to be for longer journeys.

22. Against this, the Defendant produced information obtained from the Taxi Driver Branch of the Motor Transport Workers General Union, which stated that the average net earnings of taxi drivers working an eight to nine hour shift was about $340 at the time of the accident, increasing to $400 in the first quarter of 2001, but then declining to about $360 in the second half of 2001. The Plaintiff produced figures from the Transport Department suggesting that the average net earnings per shift were $453 in May 2000, and $486 in March 2001. These figures are higher than those provided by the Union. Neither set of figures differentiated between day and night shifts. Moreover, the Transport Department figures do not indicate the average length of each shift, although as these figures are based on surveys, it seems reasonable to suppose that some, at least, of the data would be based on shifts longer than the 9 hours or so which is said to be worked by most drivers.

23. Compared to either set of figures, the earnings which the Plaintiff says he achieved is substantially higher. Even allowing for the possibility that there may be some difference between the earnings of day and night shift drivers, the amount claimed by the Plaintiff appears on the high side.

24. It is for the Plaintiff to prove the amount of his pre-trial earnings (see Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177, at 178 per Lord Goddard CJ). In the absence of any supporting documentation from the Plaintiff for the level of earnings that he claims, and in the light of the gap between his claim and the union and Transport Department figures, I am unable to accept that he actually earned as much as $600 per day. Doing the best that I can in the circumstances, I find that but for the accident, he would have earned an average of about $480 per day  - a figure which is slightly higher than the average of the Transport Department figures over the period producing a monthly income of $12,480.

The Plaintiff's present condition

25. I turn now to deal with the Plaintiff's present condition. As to the arm and hip fractures, it is clear from Dr Lam's report that by a little over a year after the accident, the injuries to his arm and hip had healed well, and that he had good mobility both of arm and hip. His arm strength was also satisfactory. His condition so far as the orthopaedic injuries are concerned had stabilised. Dr Lam appears to have accepted that there was still some residual pain and discomfort, which would cause slight physical hindrance to the Plaintiff when working.

26. As to his complaints of headaches and dizziness, I note that while he complained of headaches (but not dizziness) to Dr Lam in August 2001, his treatment records at the United Christian Hospital indicate that there were no complaints of headache or dizziness in either September 2000 or January 2001. When these matters were put to the Plaintiff, he stated that the records were inaccurate. Dr Kan appears to take the view that these complaints were somewhat doubtful, having regard to the records, and to the fact that the headaches complained of in June 2000 had apparently cleared up by July 2000. He suggested that the complaints might be more psychological than physical.

27. Having regard to the recorded absence of complaint in relation to headaches and dizziness for a substantial period in the latter part of 2000 and early 2001, I am bound to say that I do not regard the Plaintiff's present complaints as to these matters as being of much substance. I can see no reason why the medical officers whom he consulted should have positively stated that there was no longer any complaint about headaches if the Plaintiff had said something different to them, and accordingly, I prefer the evidence of the medical records to that now given by the Plaintiff in this respect.

28. However, I would accept that the Plaintiff still suffers some residual arm and hip pain, and that he tires more easily than he would have done had it not been for the accident, and that this has probably had an impact on his hobbies, social life and sex life, this aspect of his evidence not having been the subject of any significant challenge. As noted earlier, he also suffers from blurred vision, which I have found to have been caused by the accident.

Whether the Plaintiff should have returned to his pre-accident occupation

29. As to whether or not the Plaintiff is now able to return to work as a taxi driver, it is the unanimous opinion of Drs Lam, Kan and Cheung that he is able to do so. The Plaintiff nevertheless persists in his view that he should not do so. In my view, while it might have been reasonable for the Plaintiff to refrain from working as a taxi driver until he had been given clearance to do so by an ophthalmic specialist, having obtained such clearance from Dr Cheung (who had clearly taken into account the degree of impairment in his vision), he could and should have done so, and his failure to return to work as a taxi driver thereafter cannot be regarded as having been caused by the accident.

Pain, Suffering and Loss of Amenities

30. I turn now to deal with the question of damages for pain, suffering and loss of amenities. The key issue under this head was whether or not the Plaintiff's eye problems were caused by the accident. I have found that, on a balance of probabilities, they were. On this basis, counsel for the Plaintiff submitted that the appropriate level of award, was $480,000, placing the case at the bottom end of the serious injury category as defined in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657. Counsel for the Plaintiff cited a number of decisions on quantum under this head, contending that the closest parallel to the present case was Tsang Hing Yuen v Nishimatsu Kumagai Joint Venture [2000] 1 HKLRD 796, where a plaintiff who suffered fractures of the left wrist and hip, requiring hospitalisation for 6 months, and leaving him with residual pain, weakness and numbness, together with headaches, giddiness and general irritability was awarded $450,000. Counsel for the Defendant, however, submitted that the injuries here fell below that level, and that damages under this head should be assessed at about $350,000.

31. In my view, although the injuries suffered by the Plaintiff were not insignificant, taken overall, they fall slightly below the serious injury category. I note that the Plaintiff was hospitalised for relatively short periods, and that the residual effects of the arm and hip injuries appear to be fairly minor. I note also that although the eye problems exist, they do not appear to be such as to prevent the Plaintiff returning to work, or going about his daily activities. I therefore award $400,000 under this head.

Loss of Earnings

32. As to pre-trial loss of earnings, I have found that but for the accident, the Plaintiff would have been able to earn some $12,480 per month. It was not disputed that the Plaintiff should recover on the basis of a complete loss of earnings for the time that he was on sick leave. Counsel for the Defendant also very fairly accepted that if I concluded that the eye injury was caused by the accident, it would not be unreasonable for the Plaintiff not to return to work as a taxi driver until some time after he received confirmation from an ophthalmic specialist that he could do so. However, it was submitted for the Defendant that there was no reason why the Plaintiff could not have sought and obtained some form of employment within a reasonable time after the end of the sick leave period, which lasted for over 15 months. This was not disputed by counsel for the Plaintiff, who suggested that an additional period of two months' complete loss of earnings would be reasonable.

33. In my view, it would be appropriate to give the Plaintiff damages on the basis of a total loss of earnings of $12,480 per month for the whole of the sick leave period (15 months and 21 days), plus a further period of two months within which he could be expected to seek and obtain alternative employment. This takes the Plaintiff up to around the end of September 2001. Thereafter, I allow the Plaintiff damages for partial loss of earnings at the rate of $7,980 per month (taking his current earnings of $4,500 as a fair indicator of what he could have earned from late 2001 onwards had he sought work then) until one year later around the end of September 2002. Having obtained the views of Dr Cheung in July 2002 that he was fit to return to work as a taxi driver (Drs Lam and Kan having expressed the same view having regard to his other complaints in August and December 2001 respectively), the Plaintiff should have been able to return to work as a taxi driver within about two months thereafter, particularly since such work would have been on a self-employed basis, and would only require him to make arrangements to hire a taxi. I do not consider that the Plaintiff is entitled to any damages for loss of earnings from the end of September 2002 until trial, as he should by then have returned to his pre-accident occupation as a taxi driver.

34. I therefore assess the Plaintiff's pre-trial loss of earnings at $316,656 ($12,480 x 17.7 months + $7,980 x 12 months). It follows from my findings that the Plaintiff is not entitled to any award in respect of future loss of earnings.

Loss of Earning Capacity

35. The Plaintiff also claimed damages for loss of earning capacity. This claim was challenged by the Defendant. Damages under this head may be awarded where there is a substantial risk that the Plaintiff will at some time during the rest of his working life lose his current job and be thrown onto the labour market (see Moeliker v Reyrolle & Co. [1977] 1 WLR 132). The Plaintiff's evidence was that in his present employment as a hairdresser's shampoo boy, he is required to stand for long periods, but is unable to do so, and needs to take short breaks every half hour or so something which he thinks causes some exasperation to his employer. However, in view of my finding that the Plaintiff could and should have returned to work as a self-employed taxi driver, in which case he would be his own employer, I do not think that it would be appropriate to make any award under this head.

Future Medical Expenses

36. A claim was also advanced for the costs of a future operation to remove the metal plate in the Plaintiff's right forearm, together with the loss of earnings consequential thereon. This too, was challenged. Although the Plaintiff stated that he intended to have such an operation within the next couple of months, it having been recommended by Dr Lam in his report, under cross-examination he appeared much less certain about this, stating that he was concerned that such an operation might further weaken his arm. I also note that, notwithstanding that he was not working prior to September 2002, and that Dr Lam's recommendation was made as long ago as August 2001, the Plaintiff has taken no steps to pursue this possibility. In these circumstances, I am not satisfied that the Plaintiff will in fact undergo such an operation, and I make no award in respect of this claim.

Other Special Damages

37. Finally, there is a claim for other special damages totalling $4,100, in respect of travelling expenses, medical expenses for physiotherapy, loss of clothing, shoes and spectacles and for tonic food. The amount claimed is relatively small, and was not disputed by the Defendant. Accordingly, I award the further sum of $4,100 in respect of these items.

Summary of Award, Interest and Costs

38. I therefore award the Plaintiff general damages of $400,000 in respect of pain, suffering and loss of amenities, and special damages of $316,656 in respect of loss of earnings and $4,100 in respect of other items, giving a total award of $720,756. Against this, credit must be given for an interim payment of $75,000, which it is common ground was made on 30 October 2001, leaving a net sum payable of $645,756. There will also be interest on the general damages of $400,000 at 2% from the date of the writ, 13 September 2001, until today, and on the special damages of $320,756 at half the judgment rate from the date of the accident, 4 April 2000 until 30 October 2001, and thereafter at the same rate on the sum of $245,756 until today.

39. I shall also make a costs order nisi that the Defendant shall pay to the Plaintiff his costs of this action, to be taxed on the party and party basis, if not agreed.