CHONG SIU LUNG v. AU-YONG SHONG SAMUEL AND ANOTHER

HCPI 489/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 489 OF 2008

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ASSESSMENT OF DAMAGES

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Introduction

1. On 19 September 2008, Judgment on Liability was entered for the Plaintiff against the Defendants.  Parties thereafter proceeded with the case and they appeared before me for Assessment of Damages on both 10 and 11 December 2009.

Preliminary Application

2. At the outset of the hearing, the Plaintiff applied for leave to adduce his supplemental witness statement.  It attempted to give further details of how and why his chance of being promoted to a police sergeant was greatly reduced by the injury caused by the subject accident.  The Defendant opposed to the application.

3. To avoid the wasting of time and costs, I allowed the application on a de bene esse basis.  After thoughts, I hereby formally grant leave to the Plaintiff as he prayed for.  While agreeing that such late application should generally be refused, especially in light of the Civil Justice Reform, I see that the Defendant has suffered no prejudice on this particular instance. Indeed, it would save some time of “top-ups” at the examination-in-chief of the Plaintiff.

4. The application took about half an hour.  The Plaintiff should bear such costs.  There will be an order nisi that costs of the application are borne by the Plaintiff to the Defendant, to be taxed if not agreed.

Background

5. On 17 July 2005, at about 4:54 a.m., the Plaintiff was driving along Harcourt Road on his police motorcycle. Suddenly, the private vehicle driven by the 1^st Defendant crashed into the offside body of the motorcycle.

6. The 1^st Defendant was later charged and convicted of the offences of dangerous and drunk driving.  After trial, he was sentenced to 3 months’ imprisonment and disqualification of his driving licence for 2 years.  On appeal, the custodial sentence was reduced to 200 hours community service order and a fine of $10,000.

7. The Plaintiff suffered no pre-trial loss of earning as the Government had paid him $180,800.00 in the related Employee’s Compensation Proceedings after taking into account the periodical/advance payments of $423,811.16.  On 29 June 2007, the Employees’ Compensation Board assessed him a loss of earning capacity of 6% due to fractural right femur resulting in residual pain and left eye injury resulting in visual impairment.  At the review on 5 October 2007, it was revised to 8%.

8. On 11 July 2008, the Plaintiff commenced the present proceedings to seek for common law damages that he suffered.  The Plaintiff’s injuries are conveniently summarized in the Medical Reports dated 17 April 2007 and 23 August 2007 prepared by the Queen Mary Hospital and Pamela Youde Nethersole Eastern Hospital respectively.

“The above named patient suffered injury on duty while driving a motorcycle.  He was involved in a motor vehicle accident in the early morning on 17/7/05.  Mr Chong suffered an injury to his right leg after being thrown out of his motorcycle.  He was admitted to our unit through the accident and emergency department.

The patient complained of severe pain, swelling and a deformity over left thigh, Xray confirmed a fracture of the right femur shaft.  There were also skin abrasions over his left forearm, and both knees.

Operative reduction and fracture fixation by intra-medullary nailing was performed on 18/7/2005.  The patient recovered and was transferred to The Madam McLehose Rehabilitation Center on 22/7/2005 for rehabilitation as in patient from 22/7/2005 to 10/7/2005 and 29/8/2005 to 6/9/2005.

He was seen in our clinic for multiple instances.  He was able to walk unaided but with persistent pain.  There was a delayed healing of the fracture.  Further operative removal of distal locking screw was performed on 15/3/2006 which he was discharged on 22/7/2006.

His fracture eventually healed on Xray.  Operative removal of all implanted devices was performed on 16/10/2006.  He was discharged on 19/10/2006.

He was last seen in our clinic on 3/5/2007.  He still experienced mild discomfort over his right hip and back of knee.  An ultrasound scan performed on 25/5/2005 show no significant abnormalities.”

(QMH: 17.4.07)

“Examination revealed visual acuity of both eyes of 1.0 and old peripheral retinal scars, which are functionally unrelated to his symptoms.  Repeated visual field tests in February 2006 and April 2007 confirmed absence of significant visual field defect.

Subsequent assessment in April 2006 revealed bilateral temporal old and pigmented retinal degenerations, for those prophylactic laser barrier was performed in November 2006.

Mr. Chong was last seen in April 2007 was stable ophthalmic findings.”

(PYNEH: 23.8.07)

The Plaintiff’s Evidence and His Witness

9. While the above medical evidence from the Government hospitals is not in dispute, the parties do argue on the extent of injury suffered by the Plaintiff.  It turns on the credibility of the Plaintiff himself as well as the medical experts engaged by the parties.

10. The Plaintiff produced 2 witness statements and gave oral testimony at the hearing.  Surveillance evidence was also produced by the Defendants to challenge the credibility of the Plaintiff and he was cross-examined in details by the Defence Counsel Mr. Paul Lam.  He asked me not to accept the evidence of the Plaintiff.  Miss Abigail Wong, Counsel for the Plaintiff, argued otherwise.

11. Upon consideration, while not intending to describe the Plaintiff as not being honest to the Court, I agree with the observation of Mr. Lam that the Plaintiff is very subjective and is therefore not a reliable witness objectively.  Regarding his disabilities and the impact thereof on his career, in particular the promotion prospect of being a police sergeant, I find him having failed to come up with the proof on balance.

12. As pointed out by Mr. Lam, the Plaintiff’s evidence is contradicted in the following ways.

(a)   The Plaintiff said that he could not squat completely when both experts found that he could squat normally.

(b)   The Plaintiff also said in his statement that he had to rest after about a walk for 60 minutes.  However, it was not the case as revealed by the surveillance evidence.

(c)   Dr. Li, the Plaintiff’s own expert, recommended a step-by-step training and treatments program to the Plaintiff.  The expert took the view that the Plaintiff could then improve his muscle condition. He would also be able to resume driving motorcycle thereafter.  Such program would cost $17,100 and had been included in the Revised Statement of Damages signed by the Plaintiff.  However, under cross-examination, the Plaintiff confirmed that he disagreed with Dr. Li and would not follow the recommendation.  Upon being challenged by Mr. Lam as to why he signed the Revised Statement of Damages and claimed for such costs, he simply replied that the same could be dismissed.

(d)   The Plaintiff described in his statement that his performance was greatly lowered (“本人的表現亦大大下降”) because of the injuries.  Nonetheless, when being shown with his latest appraisal report, which is indeed better than those before the accident, he explained that his performance should have been outstanding but for the injury. I find such explanation far-fetched and unbelievable.

12.  On the other hand, regarding the Plaintiff’s witness Mr. Wong Chi Man, with respect, he could not improve the case of the Plaintiff.  The witness does not know the Plaintiff.  He has been retired and has not been sat in the promotion board.  His evidence regarding how a police officer is to be promoted to a police sergeant is indeed a matter of common sense only.

The Medical Experts

13. The parties adduced 2 joint medical reports, one on Orthopaedics and the other, Opthalmology.

14. Regarding the latter, the experts largely agreed that:

“Mr. Chong is suffering from 3% permanent impairment in visual acuity and 5% permanent impairment in visual field of his left eye.  Thus, he is suffering from 8% permanent visual impairment in his left eye as the result of the maculopathy.  He has completely recovered from his right eye minimal maculopathy.  There is no permanent visual impairment in his right eye.

The left eye condition has stabilized and permanent.  There is no effective treatment that can assist further improvement.  No deterioration is expected and no further treatment is required.

Mr. Chong is not suffering from any other relevant pre-existing condition or injury.

In the ophthalmological point of view, Mr. Chong is capable of returning to his pre-injury duties as a policeman now.”

I accept the experts’ view on balance.

15. However, as to the Orthopaedic experts, other than agreeing that the Plaintiff was able to handle all basis activities of life, they differed between themselves in various aspects.

16. Briefly, the Defendants’ expert said that the Plaintiff had exaggerated his injury.  He could have resumed full duties as a police constable.  He was orthopaedically fit to resume all sports activities, with temporary initial decrease in efficiency.  There might be occasional ache and pain, but generally rare.  A 2% permanent impairment of the whole person is estimated.  The Plaintiff had reached maximal medical improvement and no training or physiotherapy was needed.

17. On the other hand, the Plaintiff’s expert took the view that the Plaintiff could have substantial over-straining to the soft tissues of the right knee in the course of rehabilitation with strengthening exercises.  He proposed that planned treatments to the Plaintiff, including pain relieving modalities and muscle strengthening exercises for about 7 months.  The expert considered the Plaintiff having suffered from 4% whole person impairment.  Unless the Plaintiff agreed to his recommended program, there would be no significant change in future.  As to the Plaintiff’s status of Health Impaired Officer (“HIO”), the same could be reassessed after the suggested treatments.  The expert anticipated a high probability of improvement.

18. In my view, the opinion of the Plaintiff’s expert is to be accepted on balance.  It is indeed coinciding with my observations of the Plaintiff during his performance at the witness box.

19. With the above findings, I now turn to the damages claimed by the Plaintiff.

PSLA

20. Having accepted the evidence of the Plaintiff’s orthopaedic expert and found that there was subjective exaggeration on the part of the Plaintiff, I will award the Plaintiff a sum of $360,000 damages for pain suffering and loss of amenities.  There is no need for me to go through all the authorities raised by both Counsel as none of the cited cases resemble the present one.  It suffices for me to refer to the case of Lo Kwok Fai v Ngan Cheung Wah [2003] 1 HKLRD 82.  Deputy High Court Judge Barma (as he then was) therein awarded a sum of $400,000 to the victum who suffered a bit more serious injury than the Plaintiff herein.

Loss of Post-trial Loss of Earnings

21. In my judgment, the Plaintiff suffers no post-trial loss of earnings as he has been remaining working as a police constable, albeit being classified as HIP, for the time being.

22. The Plaintiff’s claim for loss of future earnings is premised on the fact that:

(a)   But for the accident, the Plaintiff would have been promoted or would be promoted to a police sergeant in some future time and/or

(b)   The Plaintiff has been classified as “HIO”.  It is permanent and his chance of promotion is therefore greatly reduced, if not lost completely.

However, with respect, I disagree.  As revealed from the evidence from the Police, the promotion from a police constable to a sergeant is on its own very competitive.  Each year, for those who are eligible for promotion, only 1-2% of them will be successful.  As also revealed from the past appraisal reports about the Plaintiff, he performance has been in average only.  There was improvement and he still needs a lot of effort.

23. Hence, the objective evidence does not support a substantial or significant chance of promotion, with or without the accident.  While appreciating the effort spent by the Plaintiff as well as the fact that the injury will lower the chance of promotion (say by 10% at most if one has to describe it in terms of mathematics), it does not help persuading me to accept the Plaintiff’s case on balance.

24. Certainly, having accepted the evidence of the Plaintiff’s own expert, on balance, I also find that the status of HIO for the Plaintiff is not permanent.  It can be improved and removed when appropriate measures are to be adopted, as suggested by Dr. Li.

Loss of Earning Capacity

25. The Plaintiff is and has been for more than 10 years, in secure employment with the Police, I find the risk of losing the job negligible in the circumstances.  There will also be no compensation awarded to him for loss of earning capacity.

Loss of Congenial Employment

26. The Plaintiff’s injury to his eyes is permanent. While his position generally should be improved as suggested by his own expert, he certainly will be deprived to a certain extent, and have indeed been deprived of chances of performing some posts requiring more physical strength.  He should be compensated for the same.  I find the claim of $120,000 fair in the circumstances and award the same accordingly.

Future Medical Expenses

27. I accept the evidence of the Plaintiff’s expert, but the Plaintiff does not agree to the recommendation of his own expert.  On balance, it is likely that he will not do so.  The claim of future medical expenses of $17,000 is not to be awarded to him.

Domestic Helper

28. The Plaintiff underwent 3 operations.  Sick leave was granted to him for about 20 months.  I accept Miss Wong’s submission that a reasonable sum for the employment of a domestic helper to take care of the household chores. I would allow the sum of  $76,000 ($3,800 x 20 months).

Travelling Expenses and Tonic Food

29. I find the sum of $15,000 and $8,000 reasonable in the circumstances for the traveling expenses and tonic food respectively for the Plaintiff.

Summary

30. In conclusion, I award to the Plaintiff:

		$	$
1.	PSLA		360,000
2.	Loss of Congenial Employment		120,000
3.	Special Damages
	(a)   Domestic helper	76,000
	(b)  Travelling expenses	15,000
	(c)   Tonic Food	8,000
			99,000
			579,000
	Less: Employees’ compensation received		180,800
			398,200

Interest and Costs

31. The Plaintiff is also entitled to interest on PSLA and loss of congenial employment at 2% per annum from the date of Writ herein until the date hereof.  As to special damages, interest will be calculated at half of the judgment rate per annual from the date of the accident until today.

32. There will be an order nisi that the Plaintiff is entitled to costs of the Assessment, including all costs reserved and Certificate for Counsel for hearings on 10 and 11 December 2009, at District Court Scale, on party-and-party basis, to be taxed if not agreed.