CHAN TSZ WING v. WONG WING KWONG

DCPI 671/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 671 OF 2012

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ASSESSMENT OF DAMAGES

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1.  This is the assessment of damages for the 3 plaintiffs in the above actions. 

2.  In all the above 3 actions, interlocutory judgment on liability had been entered against the defendant on 22 May 2012, with damages to be assessed.

Background

3.  The personal injuries sustained by the plaintiffs in these 3 cases arose out of the same traffic accident which happened on 23 September 2010.  At the material time, all 3 plaintiffs were passengers at the rear seat of a taxi, when the taxi collided with a private vehicle near Sai Kok Mei Tsuen, Tai Mong Tsai Road, Sai Kung (“the Accident”).

4.  By an Order made by Master J Chow on 17 April 2013, all 3 actions were ordered to be heard together with DCPI 671/2012 as the leading action.

5.  I shall deal with the quantum in relation to each of the above 3 plaintiffs in turn below.

DCPI 671/2012 – plaintiff: Chan Tsz Wing, a minor, by her mother and next friend, Chan Mei Ling

The Injuries

6.  The plaintiff in this case was born on 16 February 2007, and was 3 years old at the time of the Accident.  She is right-handed.

7.  Immediately after the Accident, she was admitted to the Accident & Emergency Department (“A&E”) of Tseung Kwan O Hospital (“TKOH”) for treatment.  Examination revealed pain and deformity over right wrist, pain and bruising over right shoulder and forehead, and pain over left knee.  X-rays of right forearm showed fracture of distal radius and ulna.  She was diagnosed with fracture distal radius and ulna of right wrist; and contusion of right shoulder, left knee and forehead.

8.  She was admitted to the orthopaedics ward of TKOH for further management, and was put on a long arm cast for treatment of the fracture of the right wrist.

9.  The plaintiff was discharged from TKOH on 28 September 2010, and was referred for regular follow-up treatments at the Department of Orthopaedics and Traumatology of Prince of Wales Hospital (“PWH”) on 29 September 2010.  She was granted sick leave from 23 to 27 September 2010, ie a sick leave period of 5 days only. 

10.  The plaintiff was a kindergarten (K1) student at the time of the Accident.  She returned to school about a week after the expiration of the sick leave period, ie in early October 2010.

11.  The long arm cast was trimmed to a short arm cast on 13 October 2010.  It was further removed on 3 November 2010.

12.  Prior to the date of the Accident, she had a fracture of the left leg due to a fall in a swimming pool on 27 July 2010 of which she already fully recovered by the time of the Accident.

13.  According to the joint medical report dated 15 January 2012 prepared by Dr Lam Kwong Chin (instructed by the plaintiff) and Dr Lau Hoi Kuen (instructed by the defendant), at the time of the examination, the plaintiff did not complain of any discomfort, although her mother noted that the plaintiff had easier tiredness of the hand, and needed more frequent breaks during prolonged writing and drawing.

14.  Both experts agreed that the plaintiff had recovered well from the fracture of the right wrist and the contusion to the other areas; no further medical treatment will be required; and that the injuries would have no permanent adverse effect on her activities of daily living or earning capacity in the future.

Pain, Suffering & Loss of Amenities (“PSLA”)

15.  As regards her claim for PSLA, the plaintiff’s counsel referred me to the following authorities and submitted in his opening submission that an appropriate award for PSLA for the plaintiff should be in the region of HK$400,000:-

(i)  Ng Wai Yip v Borich Contracting Ltd, DCPI 2222/2007, there the 26 year old plaintiff sprained his left wrist.  He was sent to hospital for medical treatment.  On examination, he was found to have a local tender around his left wrist with scaphoid tenderness.  X-ray showed there was scaphoid fracture in his left wrist.  He was hospitalised for 5 days.  Whilst in hospital, reduction and screw fixation surgery to the left scaphoid was done.  6 months later, removal of the implant was performed.  Thereafter he had sessions of physiotherapy and occupational therapy.  He suffers from wrist pain in the end range of motion and heavy exertion of the left wrist.  $200,000 was awarded for PSLA in October 2008.

(ii)  Ho Chong Peng v Yue Hin Engineering Co, HCPI 1025/2004, there the 37 year old plaintiff sustained fracture distal radius in his left wrist.  He was taken to hospital and an operation was performed to treat the fractured bones in his left wrist.  He was discharged from hospital the following day.  However, he experienced very considerable pain and movement of his left wrist was restricted.  That pain later extended to his left arm and shoulder.  Despite the court found that he was not a very convincing witness, the court accepted that he did experience considerable pain and suffering as a result of the accident and developed frozen left shoulder.  $400,000 was awarded for PSLA in December 2005.

(iii)  Yu Pun Yuen v Ng Kwok Man, HCPI 293/2002, there the 52 year old plaintiff sustained a fracture of the distal right radius and ulna.  The fracture was managed with a plaster of paris cast after closed reduction.  He was also found to have suffered complete disruption of the subscapularis tendon and partial tear of the superspinatus tendon.  He had 10 sessions of occupational therapy. Later on, open repair of the right shoulder rotator cuff was performed.  The wrist fracture healed with mild redial deviation and dorsal tilt.  The range of movement remained nearly normal except for some loss of wrist flexion.  The disability to the wrist was mild but there was some weakness of the right grip due to pain from the right shoulder.  $450,000 was awarded for PSLA in May 2003.

(iv) Tang Bo Ling v Chan Po, DCPI 79/2007, there a 43 year old plaintiff suffered a fracture in her left wrist, she was treated with close reduction and long arm plaster.  She complained of continuous pain in her left wrist particularly when the weather changed.  The movement in her left wrist was restricted and she could not lift heavy objects.  She cut down on her social gatherings and sports activities.  $200,000 was awarded for PSLA in August 2008.

16.  The defendant’s counsel, on the other hand, referred me to the following cases and submitted that an appropriate award for PSLA should be no more than HK$160,000 in this case:-

(i) Law Muk Yau v So Cheuk Po t/a Po Kee Logistics, DCPI 852/2011 (6 August 2012), the plaintiff was a master baker who sustained injuries from an accident in the course of his employment.  He suffered tenderness and swelling over left wrist, and subsequent x-ray of his left wrist showed avulsion fracture of the triquetrum. He was granted sick leave for 82 days and provided with a splint for protection.  Thereafter, he suffered from residual pain and had deficiency in lifting heavy objects.  PSLA was awarded at $140,000.

(ii) Chan Chung Lop v Chan Yun Sun [1999] 3 HKLRD 442, the plaintiff was assaulted by the defendant and sustained a fractured left ulna which required surgery. Reduction and lateral fixation of left ulna with plate and screw was performed.  PSLA was awarded at $140,000.

(iii) Chan Cheunk Yiu v Chan Ho Kwan, HCPI 879/2000 (30 June 2001), the plaintiff while delivering pizza in the course of his employment was hit by a taxi.  As a result, he sustained injuries to his head, right wrist and knee, with fracture to his distal radius of his right wrist and a 5 cm laceration at his antero-lateral knee joint of his right knee.  He was hospitalised for about 10 days with debridement, irrigation and sutures done to his knee, and close reduction and short arm plaster for his right wrist.  He was granted 3 months sick leave.  He fully recovered from his head and wrist injuries.  PSLA was awarded at $145,000.

(iv) Yu Yixin v Leung Chi Tin Andy, DCPI 306/2007 (13 March 2008), the plaintiff sustained injuries from an accident in the course of his employment.  He lost balance and fell from a ladder to the ground together with an electric drill, as a result of which he injured his right wrist and left forearm.  Examination showed swelling, deformity and decreased movements over right wrist, and 5 cm abrasion over left forearm, and X-ray showed fracture of right distal radius and ulna styloid.  The short-arm cast removed at 6 weeks.  He attended 14 sessions of physiotherapy treatment from 9 September 2005 to 18 January 2006, had residual pain/stiffness over his right wrist region, mild limitation of motions of his right wrist in flexion and extension movements, and weakness of right hand grip.  PSLA was awarded at $170,000.

(v) Lam Kwok Ling v Lam Kwok Wing and Others, DCPI 529/2011 (18 June 2013), the plaintiff was a formwork supervisor working at a construction site.  Whilst moving from mould to mould in performing his duty, he was caught by one of the metal wires, as a result of which he lost his balance and fell, fracturing his right wrist.  He was aged 44 at the time of the accident.  He was treated by plaster cast, but as a result of the fracture he subsequently developed de quervain syndrome and suffered from residual pain in his wrist.  PSLA was awarded at $180,000.

17.  I agree with Ms Lui, counsel for the defendant, that the plaintiff’s injuries are not as serious as those in Yu Yixin and Lam Kwok Ling referred to by her.  Even Mr Wong, counsel for the plaintiff, in his final submissions conceded that the plaintiff’s injuries are more in line with the injuries in the cases of Ng Wai Yip and Tang Bo Ling referred to in his list of authorises.  In those cases, an award of HK$200,000 was made for PSLA.  He therefore revised his submission that an appropriate award for PSLA for the plaintiff should be at HK$200,000.

18.  In this case, I have particularly taken into account of the fact that what the plaintiff had sustained was a “greenstick fracture” of the distal radius and ulna of the right wrist.  The experts explained what is a “greenstick fracture” in their joint report in the following terms:-

“A greenstick fracture is a fracture in a young person, in which the soft bone bends and partially breaks. Owing to the thick fibrous periosteum of immature bone, the fracture is usually incomplete, with breaking in cortex on one side. The usual treatment is conservative, with close reduction and a few weeks of immobilization. As the child has good healing power and potential of remodelling, the prognosis is usually good after proper treatment.”

19.  It is a well known fact that a young child is much more resilient when it comes to recovery from a fracture injury.  The above opinion jointly expressed by the experts lends support to that.  In this case, it is clear that the plaintiff has recovered fully from the fracture and no “rateable permanent impairment” was assessed by the experts, ie permanent impairment is assessed at 0%.

20.  Despite the plaintiff’s mother attempts in trying to associate the leg injuries with the wrist injuries sustained by the plaintiff in the Accident when she gave evidence, there is simply no medical evidence to support this.

21.  In my judgment, a reasonable sum as award for PSLA in this case should be at HK$150,000.

Special Damages

22.  The plaintiff, through her mother and next friend, also claimed the following expenses:-

(1)	travelling expenses incurred by her mother in visiting her while she was in TKOH
	($100 per round trip x 6)	HK$600.00
(2)	travelling expenses incurred by the plaintiff for follow-up treatment at PWH
	($100 per round trip x 4)	HK$400.00
(3)	tonic food	HK$8,000.00

23.  On the travelling expenses, I am satisfied that it was reasonable for the plaintiff’s mother in taking taxi to visit her from their home in Tai Wai to TKOH in Tseng Kwan O for two reasons.  First, as submitted by Mr Wong, the plaintiff’s mother herself had suffered extensive bruising and injuries herself in the Accident and therefore it was unrealistic to expect her to travel by other means of transportation.  Second, the plaintiff’s mother is a single parent and, besides the plaintiff, also has to look after another young child at the same time.  As there was no direct bus or train route from her home to TKOH, I am of the view that HK$500 she has stated when giving evidence as taxi fare is reasonable and should be allowed, despite the lack of receipts.

24.  Likewise, for the travelling expenses incurred for the follow-up treatment at PWH, despite the lack of receipts, I consider that HK$400 claimed for such trips are reasonable.  Thus, a total of HK$900 will be allowed as travelling expenses.

25.  For the claim of tonic food at HK$8,000, the plaintiff has not provided any receipts.  In evidence, the plaintiff’s mother claimed that she had purchased bird nest（燕窩）, fish maw（花膠）, bone supplement pills（補骨丸） and notoginseng（田七）for the plaintiff as she had been told and believed that they were all tonic food which would be beneficial for the plaintiff’s recovery.

26.  For the bone supplement pills, she said that she had purchased about 6 bottles costing at around HK$300 per bottle, which was consumed over a 6 months period.  She did not keep any receipts for them.

27.  For the fish maw, she was told that the collagen produced by it would be helpful for the healing of her daughter’s fracture.  She would use fish maw to prepare soup for her once a week.  She said she used about HK$1,000 for the purchase of the fish maw. Again, she did not keep any receipts for the purchase.

28.  For the bird nest, the plaintiff’s mother claims that she had bought them in ready made bottle form.  She claims that she had purchased about 6 bottles over a period of 6 months at around HK$700 per bottle.  Thus, the total amount spent on bird nest was at HK$4,200.  Again, no receipts were produced to support such claim.

29.  On top of that, the plaintiff’s mother also claim in evidence that she had spent about HK$300 on notoginseng which she would grind into powder form for the daughter’s consumption   Again, she has not provided any receipts for the claim.

30.  Having took into account of the relatively minor nature the plaintiff’s injuries and the speedy recovery made by her as opined by the experts, I am of the view that, while it was reasonable for the plaintiff’s mother to provide her with tonic food at the early stage of her recovery,  it is doubtful whether the food need to be consumed over such a long period of time.  In the absence of any receipts, I consider that a reasonable amount to represent tonic food in the plaintiff’s case should be at no more than HK$4,000.  I shall allow that amount accordingly.

Summary

31.  In summary, in my judgment, the plaintiff in this case is entitled to the following amount by way of damages:-

32.  There would be interest on the general damages at 2% per annum from the date of writ (29.3.2012) to date of assessment (2.9.2013) and on the special damages at 4% per annum from the date of accident (23.9.2010) to date of assessment (2.9.2013).

DCPI 673/2012 – plaintiff: Ma Kwan Tung, a minor by her mother and next friend, Chan Kam Lan

The Injuries

33.  The plaintiff in this case was born on 3 June 1998 and was 12 years old at the time of the Accident.

34.  Immediately after the Accident, she was admitted to the A&E of TKOH, and suffered from pain and abrasion over the left clavicle area close to the left shoulder. Bruising was found over the right eyebrow area and left leg.  She was diagnosed to suffer contusion of the face, left clavicle and left leg.

35.  She was granted sick leave from 23 to 28 September 2010.  She was a Form 1 student at the time of the Accident.

36.  No medical expert evidence has been obtained or adduced.  No photographs have been adduced to show the relevant injuries suffered by the plaintiff.  The area around her right eye has become swollen after the Accident.  In evidence, she told the court that she had a “black eye” of around 3 inches in diameter which had only subsided after 2 to 3 weeks.  When she returned to school upon the expiry of the sick leave, she was teased by her classmates due to her swollen face. She was called various unpleasant names.  The situation only improved a little bit after she complained to the teacher.  As an adolescent, it is not surprising that she felt embarrassed and distressed over such teasing by her peers.  The plaintiff however was able to rejoin the school’s extra-curriculum activities 2 to 3 weeks after return to school.

PSLA

37.  In relation to her claim for PSLA, the defendant’s counsel asked the court to take into consideration the following authorities and submitted that an appropriate award for PSLA in this case should be at HK$50,000:-

(i)   In Cheung Yu Tin Alvin v Ho Hon Ka, DCPI 853/2004 (9 June 2005), the plaintiff was a passenger in the upper deck of a bus.  As a result of a motor vehicle accident involving a collision with a taxi, the plaintiff, then aged 27, sustained soft issue injuries to his lower back, and suffered lower back pain.  He was granted sick leave for 4 days, with no follow-up attendance required.  PSLA was awarded at HK$25,000.

(ii)   In Wong Shing Kam and Another v Leung Ming Kwong, DCPI 171/2005 (24 January 2006), the two plaintiffs were passengers on board a public light bus, and suffered personal injuries as a result of the collision caused by the negligence of the defendant.  The injuries suffered by the 1^st plaintiff supported by medical evidence were: a 1cm laceration over the lower gum region, right elbow bruising; swollen right face; and bleeding of the mouth.  PSLA was awarded at HK$25,000.

The injuries suffered by the 2^nd plaintiff supported by medical evidence were: neck sprain and bruises on the legs.  He was granted sick leave for five days.  PSLA was awarded at HK$30,000.

(iii)   In Yip Tung Fung and Others v Pun Chi Leung, DCPI 2149/2006 (23 November 2007), the 1^st to 3^rd plaintiffs all sustained personal injuries as the result of a traffic accident.

The 1^st plaintiff was 29 years old at the time of the accident.  At the scene of the accident, he only felt some headache and declined to attend hospital; but in the evening on the following day, he felt pain in his neck and lower back for which he sought medical consultation.  PSLA was awarded at HK$40,000.

The 2^nd plaintiff was also 29 years old at the time of the accident, and suffered neck and lower back pain, and mild abrasion and erythema to her left arm.  She was discharged after would dressing, and no follow-up was arranged.  She consulted a doctor on the following day for lower back and neck pain.  PSLA was awarded at HK$40,000.

The 3^rd plaintiff was 38 years of at the time of the accident and attended hospital immediately after the accident.  He had a laceration with endema near lateral eyelid, for which simple suture was performed; and he also suffered bilateral knee abrasion and bruising.  PSLA was awarded at HK$55,000.

(iv)   In Mohammed Ashaq v Royal Honour Industrial Limited, DCPI 586/2007 (27 November 2007), the plaintiff worked as a forklift driver and was injured when the gas cylinder of the forklift car broke loose and hit the back of the driver’s seat, which in turn hit his back, causing him to fall onto the ground.  Doctors found tenderness over the posterior aspect of the left shoulder and low back.  He was treated with analgesic and physiotherapy, and discharged from hospital after 4 days.  He continued with physiotherapy treatments in the next four to five months.  PSLA was awarded at HK$50,000.

(v)   In Jackson Ivan O’Neil Amrol, a minor, claiming by his mother and next friend Melissa Lippencott Amrol v Marisol Rivera [2008] 4 HKLRD 110, there was a collision between the plaintiff , then aged 4, and a dog, as a result of which the boy suffered a fracture of the right temporal bone and a traumatic perforation in his right ear.  PSLA was awarded HK$80,000.

38.  On the other hand, the plaintiff’s counsel submitted that an appropriate award for PSLA should be in the region of HK$200,000 by relying on the following authorities:-

“(i) Fong Yuet Ha v Success Employment Services Ltd, HCPI 345/2009, the 44 year old plaintiff sustained contusion of left forearm with abrasion and bruising, right heel pain and right buttock contusion. She was jointly examined by her own expert and the defendant’s expert. Both doctors agreed that she suffered from soft tissue injuries to multiple sites including left forearm, right heel, right buttock and back. The soft tissue injuries to the left forearm and right heel had recovered. With regard to the back, there was tenderness over the lumbosacral junction and right iliac crest and there was mild guarding over right paraspinal muscle of the lower back though there was no muscle spasm over the lower back. She in fact had pre-existing degenerative changes at L3/4, L4/5 and L5/S1 disc spaces. Her expert considered that the degenerative changes were rather asymptomatic before the accident and it was likely that the accident had triggered the persistent symptoms in the back. The defendant’s expert, however, opined that given the plaintiff’s complaint all along was right-sided symptoms, but the MRI scan showed this bulging at L4/5 and L5/S1 levels on the left side, the symptoms were unlikely to be an aggravation of the more severe pathology on the left side. The court accepted the defence’s expert opinion that the accident was unlikely to have aggravated the pre-existing back degeneration. Her residual psychiatric symptoms were also mild. $250,000 was awarded for PSLA in April 2012.

(ii) Tong Siu Wai v Poon Wing Fu [2012] 5 HKLRD 407, HCPI 44/2010, the 24 year old plaintiff sustained contusion injuries to lower back and left knee, and “at most” a mild head injury. $300,000 was awarded for PSLA by the trial Master in November 2011 which was upheld by the Court of Appeal.

(iii) Wong Ching Ha v Manbright Co Ltd,DCPI 886/2007, there the plaintiff fell on her right shoulder and right face.  There was a slight laceration on her lip, a small fracture to her incisor and tenderness over her shoulder.  She complained of right shoulder pain radiating down her right arm.  She could not lift her right arm.  She undertook physiotherapy treatment.  $200,000 was awarded for PSLA in March 2008.”

39.  I agree with the defendant’s counsel that the injuries suffered by the plaintiff in this case were clearly not as serious as the cases of Jackson Ivan O’Neil Amrol and the 3^rd plaintiff in Yip Yung Fung, referred to by her in her list of authorities.  I also do not consider the injuries of the plaintiff in this case are as serious as those suffered by the victims in cases cited by the plaintiff’s counsel.

40.  I am of the view that an award of HK$50,000 will be a fair amount to represent PSLA in this case.

Special Damages

41.  As regards her claim for other special damages, the defendant agreed to her claim for treatment fees at the A&E of TKOH and the related travelling expenses in the sum of HK$280.

42.  Although her claim for tonic food in the sum of HK$2,000 is not supported by any receipts, I accept the evidence given by her during the assessment hearing that she was advised and believed that the tonic food, ie fish maw（花膠）and notoginseng（田七）was beneficial for her recovery.  In the absence of any receipts, I consider that a sum of HK$1,000 will be regarded as reasonable, given the relatively minor and transient nature of her injuries.

Summary

43.  In summary, it is my judgment that the plaintiff in this case will be entitled to the following amount of damages:-

44.  On top of that, there would be interest on the general damages at 2% per annum from date of writ (29.3.2012) to date of assessment (2.9.2013) and on the special damages at 4% per annum from date of accident (23.9.2010) to date of assessment (2.9.2013).

DCPI 675/2012 – plaintiff: Chan Mei Ling

45.  The plaintiff in this case was born on 5 March 1971 and was 39 years old at the time of the Accident.  She is and was at all material times a housewife and the mother of Miss Chan Tsz Wing (the plaintiff in DCPI 671/2012).

46.  Immediately after the Accident, she was admitted to the A&E of TKOH for treatment. Examination revealed bruising over right leg, swelling over left knee, and pain over right angle of jaw, left posterior pelvis and both shoulders.  She was diagnosed with contusion of both shoulders, left knee, right leg and right face.

47.  She was discharged from TKOH on the same day, and was not required to attend any follow-up treatment.  She was granted sick leave from 23 to 26 September 2010.

48.  No medical expert evidence has been obtained or adduced.

49.  As regards the claim for PSLA by the plaintiff in this case, the defendant’s counsel submits that the plaintiff’s injuries were not as serious as those suffered by the two other plaintiffs herein, namely, Miss Ma and Miss Chan.  Ms Lui submits that the plaintiff’s injuries were similar to the cases of Cheung Yu Tin Alvin, the two plaintiffs in Wong Shing Kam, mentioned above.  In the light of the authorities cited, it is submitted on behalf of the defendant that she should be awarded no more than HK$30,000 for PSLA.

50.  On the other hand, the plaintiff’s counsel submits that the plaintiff’s injuries are compatible to those in Fong Yuet Ha, supra and Tong Siu Wai, supra and that an appropriate award for PSLA would be in the region of HK$200,000. 

51.  Judging from the photographs produced by the plaintiff and the medical report from the government hospital, I am of the opinion that her injuries are slightly more serious than those suffered by Ms Ma (plaintiff in DCPI 673/2012) but not anywhere close to the injuries suffered by the plaintiffs in the cases cited by the plaintiff’s counsel.  I am of the view that an appropriate sum for PSLA will be at HK$80,000.  I would award such sum accordingly.

Special damages

52.  As for her claim for other special damages, I am of the view that a sum of HK$100 should be allowed for travelling expenses.

53.  For the claim of tonic food at HK$2,000, given her relatively minor injuries and the lack of receipts, I consider a reasonable sum to represent the cost of such Chinese herbal medicine for soup and notoginseng mentioned by her in evidence should be at no more than HK$1,000.  I shall award such sum accordingly.

Summary

54.  In summary, I am of the view that the plaintiff in this case is entitled to the following amount of damages:-

Interest

55.  There would be interest on the general damages at 2% per annum from date of writ (29.3.2012) to date of assessment (2.9.2013) and on the special damages at 4% per annum from date of accident (23.9.2010) to date of assessment (2.9.2013).

Costs

56.  Costs should follow the event.  I will make a costs order nisi that the plaintiffs in all the above 3 actions will be entitled to their costs of the action, including the assessment hearing, with certificate for counsel.  Such costs to be paid by the defendant, to be taxed if not agreed.   The above costs order will be made absolute after 14 days from the date of this order unless any party makes an application to vary the same. The plaintiff’s own costs in all 3 actions to be taxed in accordance with the Legal Aid Regulations.

57.  Lastly, I would like to thank counsel on both sides for their very helpful assistance.