LAI HON CHIU v. CHOY KAM TIM

HCPI 260/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 260 OF 2007

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J U D G M E N T

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INTRODUCTION

1. The 46-year-old dim sum “si-fu” (master), Mr. Lai, met a traffic accident whilst traveling as a passenger in a public light bus on 1 October 2006, and suffered injuries.  He claims against the driver for damages arising from the injuries.

2. Interlocutory judgment was entered on 3 May 2007.  I now assess Mr. Lai’s damages.

ISSUES

3. Mr. Lai alleged that as a result of injuries he had suffered, he was no longer able to return to work as a dim-sum si-fu because of the residual pain.  He was granted sick leave until 17 October 2007. Mr. Lai however claimed that he should be entitled to a reasonable time to enable him to look for alternative employment after the expiry of his sick leave.  Hence, he claimed damages for full loss of pre-trial earnings, and partial future loss of earnings as a result of a reduction of earnings from a lighter job such as a watchman– as his orthopedic expert, Dr. Lau Hoi Kuen, had recommended – which type of job Mr. Lai claimed he could only do after the accident.

4. The Defendant challenged Mr. Lai’s credibility, and contended that he had exaggerated his injuries, and inflated his pre-accident earnings.  It was further contended that his sick leave should only be for 6 months (as opined by his expert, Dr. Lam Kwong Chin), and more importantly that Mr. Lai had malingered.  The Defendant contended that Mr. Lai was fit to resume his pre-accident employment, and hence suffered no future loss of earnings.

5. The only agreed item of damages is the sum of $30,000 for special damages.

6. Further, the multiplier for calculating future loss of earnings (should I award damages under this head) is agreed at 10.

EVIDENCE

7. The only witness in the assessment is Mr. Lai.  The reports of the Government hospitals relating to Mr. Lai’s treatments and care were agreed.  The expert reports of Dr. Lau and Dr. Lam prepared for the purpose of the litigation were ordered to be adduced without oral evidence.

(1)  Medical evidence

8. According to the reports of the Government hospitals, Mr. Lai was first seen in the United Christian Hospital (“UCH”) after the accident.  He was discharged after being given intramuscular injection.  Mr. Lai attended the outpatient of Tuen Mun Hospital (“TMH”) for his complaint of pain at his neck, back, chest wall and right thigh.  An X-ray of his cervical spine and right thigh did not show any fracture.  He was referred to physiotherapy.

9. On 31 October 2006, Mr. Lai attended UCH for similar complaints of pain. An x-ray of Mr. Lai’s lumbosacral spine revealed normal alignment and no fracture.  Mr. Lai was prescribed analgesic for his pain.

10. As Mr. Lai lived in Tuen Mun, he was arranged to receive follow- up treatments at TMH.  For this reason, the doctor from UCH prepared a referral letter dated 9 November 2006, in which he made a remark of “fracture sacrum”.

11. On 13 November 2006, Mr. Lai had a MRI of his lumbar spine in a private clinic.  According to the MRI report dated 14 November 2006 (“the MRI Report”), Mr. Lai’s lumbar spine was found to be normal, and that his lumbar nerve roots were not compressed or displaced.

12. Mr. Lai was treated conservatively with physiotherapy and occupational therapy.

13. Dr. Lau examined Mr. Lai on 12 March 2007, and prepared a report on 17 March 2007.  In his report, Dr. Lau found that Mr. Lai had mild wasting of the muscles of his right lower limb, which was more severe in the calf.  There was weakness at the right lower limb.  After Dr. Lau had studied the MRI Report, he formed an opinion that Mr. Lai had suffered whiplash injury to his neck. 

14. Dr. Lau however was unable to find any evidence of nerve compression to account for Mr. Lai’s complaint of numbness at his left upper limb. Dr. Lau conjectured that it could be the result of the “bizarre upper limb symptoms commonly seen in patients with whiplash injury.”  However, he was unable to explain for the diffuse sensory deficit of Mr. Lai’s upper limbs he said he had observed at the assessment.  As for Mr. Lai’s complaint of left shoulder pain, Dr. Lau opined that it was not related to the accident, as the X-ray of the left shoulder did not reveal any evidence of trauma to the relevant joint.

15. Dr. Lau recommended Mr. Lai to receive more intensive physiotherapy and occupational therapy for 3 more months, and recommended sick leave for the same period to allow Mr. Lai to complete the recommended treatments.

16. Two months later Dr. Lam examined Mr. Lai on 5 May 2007.  Regarding Mr. Lai’s complaint of tenderness at the neck, Dr. Lam found that there was no loss of cervical lordosis, no paraspinal muscle tenderness or spasm.  Hence, he was of the view that Mr. Lai had only suffered a mild sprain of neck tissues, which should have recovered after conservative treatment.  Dr. Lam found that Mr. Lai’s neck complaint was exaggerated, as it was not supported by any other independent medical investigations such as the MRI Report or the reports from UCH. 

17. As for Mr. Lai’s complaint of chest pain, Dr. Lam believed that it was due to a simple chest contusion.  Dr. Lam also could not find any objective evidence supporting Mr. Lai’s said complaint.

18. Dr. Lam agreed with Dr. Lau that Mr. Lai’s shoulder pain was not related to the accident.

19. In relation to Mr. Lai’s lower back pain, Dr. Lam – after having noted the confusing reports of the government hospitals as to whether Mr. Lai had a fracture sacrum- assessed that Mr. Lai probably had a contusion to the lower back.  All in all, Dr. Lam opined that whatever pain Mr. Lai might have suffered as a result of the back injury, the symptom would have been gradually improved with time.

20. Dr. Lam concluded that Mr. Lai had only suffered soft tissue injuries, and that he would not require any further specific treatment.  He was of a further view that Mr. Lai should be able to resume his work as a dim sum cook, though with reduced efficiency in the beginning.  He opined that the reasonable sick leave should not be more than 6 months, and he should have resumed his pre-accident work on the date of his report.

21. On 11 September 2007, Mr. Lai was jointly examined by the experts.  At the examination, the experts had further reviewed updated medical reports from TMH and a private urologist, as well as work capacity evaluation reports from the Labour Department.

22. In their joint report, both experts agreed that Mr. Lai suffered soft tissue injuries to his neck and chest, and contusion injury to his lower back.  They could not find any injury to his shoulder.  They also found that Mr. Lai’s complaints of penile pain and erective dysfunction were not related to any spinal neurological deficit.  They jointly opined that Mr. Lai’s injury had reached maximal medical improvement, and further that Mr. Lai showed signs of exaggeration. 

23. Dr. Lau commented that he had seen patients suffering from chronic pain exhibit similar exaggerated response.  He therefore remarked that Mr. Lau’s exaggerated response did not necessarily suggest malingering.

24. Dr. Lam thought the otherwise as he was of the view that Mr. Lai’s exaggerated response was not supported by any objective medical evidence.  Dr. Lau however found that the clinical findings of motor weakness, decreased touch sensation and wasting of the calf muscles were suggestive of the presence of radiculopathy (that is, significant alteration in the function of nerve roots) caused by pressure on one or several nerve roots.

25. The experts also held divergent views regarding whether Mr. Lai was fit to return to his pre-accident job as a dim sum si-fu.  Dr. Lau held the view that Mr. Lai’s residual pain in his neck and back, and muscle wasting and weakness of his left lower limb would have prevented him from returning to his pre-accident job as a dim sum si-fu.  Dr. Lam opined the otherwise.

(2)  The Plaintiff’s evidence

26. Mr. Lai is a married man living with his wife.  Before the accident, he had been working as a dim sum si-fu for more than 20 years.  Prior to the accident, he worked in a Chinese restaurant called Tak Hing Yuen Seafood Restaurant (“the Restaurant”) operated by a limited company called American Food & Beverage Company Limited as a dim sum si-fu, allegedly earning a monthly salary of $18,000.  In addition to the basic salary, Mr. Lai said that he was also paid a traveling allowance of $1,000, and an extra $3,000 for supervising the dim sum quality in another branch restaurant.  He therefore claimed that his total income was $22,000 per month.

27. After the accident, Mr. Lai said that he had not obtained any gainful employment after his sick leave expired on 17 October 2007 because of the serious residual pain at his legs and waist, and of his inability to lift heavy objects.  In any event – according to Mr. Lai – the Restaurant had hired a replacement dim sum si-fu after the accident.

28. Mr. Lai had in the past months since the accident been receiving very intensive physiotherapy and occupational therapy treatments at the government hospitals.  At the time of the hearing, he told me that he was receiving hydrotherapy by swimming every day to prevent wasting of his left leg and to build up his left shoulder bone.

29. At the hearing, Mr. Lai said that the quality of his sleep was poor because of the pain at the neck, radiating to the shoulders, as well as pain at the left chest wall.  He could sit for less than one hour, walk for less than 45 minutes and stand for only 20 to 25 minutes because of pain at the waist.  His legs were weak, and particularly at the left due to muscle wasting.

30. Throughout the hearing, Mr. Lai exhibited extreme discomfort whilst giving evidence.  I observe that Mr. Lai had to place both hands underneath his buttocks for support when seated.  I also saw him frequently change his sitting posture by shifting his body from side to side.  On one occasion at the middle of the testimony, Mr. Lai needed to get up for a moment, and patted his hands on his knees before sitting down again.  He explained to me that he did it to relieve the pain at the buttocks and the back.

31. Mr. Lai also told me that recently in April 2008, he went to see a government psychiatrist at Castle Peak Hospital because of poor sleep and depression.  His next appointment would be on 3 June 2008. 

32. Mr. Lai was the breadwinner of the family.  Since the accident, Mr. Lai said that his living was supported by a fund in the sum of $81,000 he had obtained from the Social Welfare Department’s Traffic Accident Victim Assistance (“TAVA”) as well as the monthly payments of $10,000 – which were only disclosed for the first time during the hearing - from his employer.

33. As for his future, Mr. Lai said that in view of his limited literacy and age, he considered that he was only suitable to work in less strenuous jobs such as a watchman.  He said that since the expiry of the sick leave, he had been trying to look for this kind of job, but with nil success.

DISCUSSION OF THE EVIDENCE

(1)  Medical evidence

(i)  Injuries and disabilities

34. The experts agreed substantially on the extent of Mr. Lai’s injuries, and I am therefore inclined to accept their joint opinions that Mr. Lai has suffered injuries to various parts of his body as a result of the traffic accident.  However, I find that Mr. Lai has only suffered soft tissue injuries to his neck and chest, and contusion to his lower back.

35. Further, I accept the joint views of the experts that it is unlikely that Mr. Lai’s complaints concerning the shoulder, erectile dysfunction, knees andears were related to the traffic accident.  Therefore, Mr. Lai’s complaints regarding these parts of his body will be excluded from this assessment.

36. The medical reports are slightly confusing as to whether Mr. Lai has suffered a fracture sacrum or not.  Apart from a remark of “fracture sacrum” stated in the referral letter dated 9 November 2006 from UCH, all the other reports in fact confirm that Mr. Lai suffered no fracture.

(a)    The medical report dated 17 November 2007 of TMH states that Mr. Lai attended the outpatient there on 3 October 2006, and the X-ray of the cervical spine and right thigh showed no fracture or abnormal alignment;

(b)   In the MRI Report, the MRI of the lumbar spine on 13 November 2006 showed no fracture;

(c)   The reference letter from UCH dated 11 March 2007 states that Mr. Lai attended the outpatient there on 31 October 2006, and the radiology report of the x-ray of the lumbosacral spine revealed normal alignment, and no fracture;

(d)   When Dr. Lau examined Mr. Lai in March 2007, the x-ray of the cervical and lumbosacral spine only showed degenerative changes.

37. The totality of the above medical evidence leads me to conclude that it is unlikely that Mr. Lai has suffered any fracture in the accident.

38. Based on the experts’ joint report, I further find that by September 2007, Mr. Lai’s injuries have reached maximal recovery requiring no further treatments.

  (ii)  Sick leave

39. In March 2007, Dr. Lau recommended sick leave of a further period of 3 months in order to enable Mr. Lai to undergo more intensive physiotherapy treatment.  Accordingly, Mr. Lai’s sick leave should have ended around June 2007.

40. On the other hand, In May 2007, Dr. Lam was of the view that Mr. Lai’s multiple soft tissue injuries should have been satisfactorily recovered in 6 months.  Therefore, he opined that the appropriate period of sick leave should be 6 months, which period should have ended at the end of March 2007.

41. As Mr. Lai had indeed continued to receive treatments after March 2007, I am prepared, despite the view of Dr. Lam, to find that the reasonable sick leave should be at the end of the 3 months’ further treatment Dr. Lau had recommended, which would have been the end of June 2007.

  (iii)  Working Capacity

42. The only major difference of the experts’ opinions is whether Mr. Lai was fit to return to work as a dim sum si-fu.  Dr. Lau’s view was premised on Mr. Lau’s complaints of residual pain on his neck and back, as well as muscle wasting and weakness of his left lower limb.  Whether Mr. Lai would be fit to return to work, in my view, will also depend upon my evaluation of Mr. Lai’s credibility. 

43. In deciding which experts’ views I should prefer, I have taken into account the followings:

(a)    Dr. Lau had in the examinations in March and September 2007 administered Waddell tests to find out the genuineness of Mr. Lau’s complaints. The results both tests were substantially similar.  As the result of the test, Dr. Lau had agreed with Dr. Lam that Mr. Lau had exaggerated his complaints in the joint report.  However, without any explanation, Dr. Lau had not made similar remarks in his March report.

(b)   Further, in the March report, Dr. Lau not only failed to remark on the Waddell test result - which would have similarly shown signs of exaggeration- he had also readily justified Mr. Lau’s various subjective complaints of pain by conjecturing that “bizarre upper limb symptoms commonly seen in patient with whiplash injury” (see paragraph (8) of his report).

(c)   Whilst acknowledging the possibility of exaggeration in the joint report, Dr. Lau appeared to defend Mr. Lau’s observed exaggerated response by commenting that it “does not necessarily suggest malingering” (see paragraph 53).   

(d)   (1) Dr. Lau in both his own report as well as the joint report opined that Mr. Lai could not resume his pre-accident job because of the residual pain of his neck and back as well as

(i)    “… right lower limb even after completion of the recommended conservative treatment programme” (see para. 14 of Dr. Lau’s report in March 2007).

(ii)   “ … even more so with the wasting and weakness of his left lower limb…” (para.63 of the joint report)

(2)  Dr. Lau’s said comments appear to be rather confusing, as they cannot show which of Mr. Lai’s legs was weaker.  The measurements shown in both reports also do not bear out Dr. Lau’s views.   The measurements of Mr. Lai’s calf girths of his right and left legs were respectively 36.7 cm and 38.3 cm. in March 2007 and 36.3 cm. and 38.3 cm. in September 2007. On both occasions, the right side measurements were slightly smaller than the left.  Dr. Lau however had failed to explain how he came to a view that why Mr. Lai had weakness in his legs or further why Mr. Lai had muscle weakness. 

(3)    Dr. Lau also did not explain why in his March report that he came to the view that Mr. Lau would be unable to resume his pre-accident job before Mr. Lai had completed the treatments he had recommended in the report.

44. In light of the matters aforesaid, I find that Dr. Lau tended to make sweeping statements basing more on conjecture than on objective findings. On the other hand, I think Dr. Lam’s opinions are more reasoned and supported by objective medical findings such as the MRI Report.  All in all, where the experts’ opinions are at variance, I am inclined to prefer the opinions of Dr. Lam to those of Dr. Lau’s.

(2)  The Plaintiff

(i)  Injuries

45. Mr. Lai’s demeanour (such as the sitting posture and the standing up at the middle of his evidence already summarized in paragraph 30 above) has given me an impression that Mr. Lai appeared to be still suffering from severe pain, especially at his lower back, buttocks and knees.  The exhibition of such an excessive pain however – as Mr. Lai has demonstrated at the hearing – does not appear to be congruent with the medical evidence.

46. In September 2007 when the experts examined Mr. Lai in the joint session, Mr. Lai was reported to have received 22 sessions of physiotherapy and 27 sessions of occupational therapy. He had also been receiving hydrotherapy since August 2007, with further follow up in the orthopedic clinic about once a month.  After the joint examination in September 2007, both experts were of the views that Mr. Lai’s condition had reached maximal medical improvement, requiring no further treatment.

47. In spite of the experts’ favourable assessment in September 2007 that Mr. Lai did not require any further treatments, Mr. Lai had in fact continued receiving physiotherapy for a further period of about 9 additional months on the date of hearing.  Therefore, were Mr. Lai indeed suffering from any residual pain at the joint examination in September 2007, I believe that his pain would have likely be satisfactorily managed or diminished by the date of the hearing.

48. Further, Mr. Lai had also complained of weakness of his legs at the hearing.  Mr. Wong, counsel for Mr. Lai, submitted that Mr. Lai’s complaints were borne out by the measurements of his calf girths.  I have in paragraph 43 above discussed the measurements Dr. Lau had taken of Mr. Lau’s calf girths.  For easy reference, I set out all the measurements both experts took.

Date of measurement	Right side (cm)	Left side (cm)
March   2007	36.7	38.3
May      2007	36.0	37.0
September 2007	36.3	38.3

49. The measurements above show two things.  First, There was only a small difference of about 2 cm of the calf girths. Second, the calf muscles appeared to have grown back to the similar sizes as in March 2007 within a period of about 4 months between May and September 2007. This is certainly a sign of improvement. From these measurements, I am unable to find any sound basis to support a suggestion of weakness in strength or muscle wasting as Dr. Lau had opined or Mr. Lai had allegedly complained.    

50. Were there indeed muscle wasting or weakness, in view of the daily hydrotherapy Mr. Lai had been receiving since August 2007, it is unlikely, in my finding, Mr. Lai would still be suffering from weakness in his legs as Mr. Lai alleged said in his evidence.

51. I therefore do not find Mr. Lai’s complaints of persistent residual pain and weakness of his legs due to muscle wasting can be believed for they are inconsistent with the experts’ assessment of Mr. Lai’s injuries that they had satisfactorily recovered.

52. On the other hand, I find ample evidence that Mr. Lai had greatly exaggerated his injuries and disabilities.  In Dr. Lau’s report in March 2007, Dr. Lau reported that Mr. Lai could sit for 30 minutes.  Mr. Lai’s condition had improved (as he had also admitted) since March 2007.  I find it is therefore quite inconceivable that Mr. Lai would need to get up from his seat for the alleged purpose of relieving the pain in his buttocks.  In my finding, this performance tends to show that Mr. Lai had exaggerated his disabilities, no doubt, with a view to obtain a more favourable assessment.  Unfortunately, in my evaluation of Mr. Lai’s evidence, I am inclined to say that Mr. Lai has failed badly in his attempt to impress me as a credible witness.

53. I find Mr. Lai has grossly exaggerated not only the magnitude of the pain of the actual injuries he suffered from the accident, he had deliberately attempted to magnify the extent of his injuries by complaining of pain in areas which were found not to be related to the accident – of which example are complaints of pain to the chest, shoulder and upper limbs, and of erectile dysfunction and hearing impairment.

54. One of the glaring examples of Mr. Lai’s exaggeration is his complaint of depression, which he allegedly said required psychiatric treatment.  At the hearing, Mr. Lai told me that about 3 months after the accident, he was not able to sleep, and had nightmares, and the problem had persisted.  He however only went to see a government psychiatrist in April 2008 when his wife told him that he had “mental problem”.  He said he had not told either of the experts of this psychiatric problem because he thought his sleeping disturbance was caused by pain, not by the depression. 

55. I do not find Mr. Lai’s reason for not disclosing his sleeping problem to the experts convincing.  From the complaints recorded in the experts’ reports, it appears that Mr. Lai’s complaints of physical discomfort tended to multiply with the passage of time.  For example, when Mr. Lai first saw the respective experts, Mr. Lai’s had already made complaints of pain and discomfort in about 7 to 8 various parts of his body.  In September 2007 when the experts jointly examined him, Mr. Lai’s condition should have likely been better than the earlier interviews by the respective experts, and the number of complaints should have correspondingly reduced.  I find in the joint report however, instead of a reduction in Mr. Lai’s complaints, new additional complaints about erectile dysfunction and impaired hearing of his left ear. What is even more telling is that these new problems or symptoms were in fact not recent but had already occurred shortly after the accident. 

56. Since Mr. Lai said that the erectile dysfunction and the hearing impairment were already present since the accident, I do not find any logical reason why he had not told the experts in their earlier separate sessions.  Similarly, Mr. Lai had never told the experts in any of the interviews about his alleged sleeping disturbance or depression, which he only mentioned at the hearing. Similarly to other later complaints, the alleged depression had also occurred shortly after the accident.  The only inference therefore I am entitled to draw is that Mr. Lai had either likely fabricated most of his injuries or symptoms or the various disabilities he complained of were unlikely to be related to the accident.

57. In the absence of any supporting evidence, I am not satisfied that Mr. Lai was suffering from a psychiatric condition that requires treatment.  In my view were Mr. Lai indeed suffering from depression requiring treatment, it is unlikely, similar to the other complaints such as hearing impairment and erectile dysfunction, be related to the accident.

58. In the circumstances, in considering Mr. Lai’s disabilities and injuries, I will also leave out Mr. Lai’s alleged symptoms of depression.

  (ii)  Sick leave

59. Mr. Lai obtained medical certificates granting him sick leave until 17 October 2007.  Sick leave certificate cannot be treated as conclusive evidence of whether a plaintiff is fit to work or not.  Hence, Mr. Lai’s medical certificates do not bind me.

60. I have already found above – based on the experts’ evidence – that Mr. Lai’s reasonable sick leave should have ended after June 2007.  After having had the opportunity of observing Mr. Lai in court (and found that he had largely exaggerated his physical disabilities), I am not persuaded that his physical condition was such that requires a sick leave period beyond the reasonable length the experts have opined.

  (iii)  Working capacity

61. Mr. Lai told me he could no longer work as a dim sum si-fu because of the pain on his legs and waist.  I have found his complaints of residual pain not genuine.  Contrary to Mr. Lai’s evidence, I am satisfied – based on the medical evidence discussed above - that Mr. Lai has recovered well when the experts examined him in September 2007.  Given the satisfactory recovery, is it reasonable for Mr. Lai to claim that he could not go back to his pre-accident employment?

62. In order to properly assess Mr. Lai’s working capacity after the accident, I should, apart from taking into account of the medical evidence discussed above, consider Mr. Lai’s nature of job before the accident. 

63. Before the accident, Mr. Lai had 20 years of experience in the field of dim sum cooking.  Mr. Lai’s work position before the accident however was at a master level, not a mere dim-sum cook, and he was entrusted with, according to his evidence, the management role of supervising the entire team of dim sum chefs in the Restaurant.  The nature of his duty would have been less physically demanding than a mere dim sum worker or chef. 

64. Furthermore, Mr. Lai’s nature of his pre-accident job is also evident by the extra supervision duty, which required him to control the quality of dim sum of another branch restaurant his employer entrusted him before the accident.

65. Further the nature of Mr. Lai’s pre-accident job can also be gleaned from the two letters of income proof issued by Mr. Lai’s employer dated respectively on 28 October 2006 and 8 June 2007.  In the first letter, Mr. Lai’s position with the Restaurant was described as “the head of dim sum Department”.  The employer’s second letter stated that Mr. Lai was paid an extra $3,000 for the additional management duty.  In it, it stated that Mr. Lai as from October 2004 “started to assist in the supervision of the quality of the output” of the Restaurant’s dim sum department.

66. These two letters from the employer show that Mr. Lai’s primary duty was management rather than actual dim sum making.

67. Based on the above discussions, I am inclined to find that the nature of Mr. Lai’s pre-accident job tended to be more management oriented than labour intensive. In the circumstances, I believe that Mr. Lai’s nature of his pre-accident job would not have required him to stand for long hours or lift heavy weights, which duties would have been likely be those of a mere worker or chef.

68. In view of the nature of Mr. Lai’s pre-accident duty, I believe that Mr. Lai could likely have returned to his pre-accident job.  I find however Mr. Lai had regarded sick leave certificates as licenses enabling him to stay out of work but be compensated. Thus, although the medical officer of the Occupational Therapy Department had assessed Mr. Lai to be ready for open employment between the period of April and August 2007, Mr. Lai claimed that he had not sought work because he was still on sick leave. 

69. Further, when Miss Tsang asked Mr. Lai to explain why he had not worked during the said period in paragraph 68 above, Mr. Lai answered that it was because he was still on sick leave. Mr. Lai’s response, in my view, reinforces my belief that the reason that Mr. Lai claimed he could not work during the validity of the sick leave certificates not because he was not able to work, it was mainly because he felt he was entitled not to work.

70. After the sick leave period expired, Mr. Lai, in my view, in an attempt to avoid being accused of malingering, purportedly attempted to make various efforts to mitigate his loss by allegedly looking for an alternative employment.

71. He had applied for a training course for security and property management with Caritas Institute for Further and Adult Education (as shown by the letter dated 30 October 2007).  However, he was not selected for the course.

72. He had further completed a 2-day pre-employment training programme on job-search skills etc in around February 2008 (as evidenced by a Certificate of Attainment Pre-employment Training issued by the Labour Department dated 27 February 2008).

73. The aforesaid attempts, in my view, are mere pretexts. On the evidence, I am unable to find Mr. Lai had actually shown any real effort to look for a suitable job such as by registering with the Labour Department or approaching a job agency.  I do not find Mr. Lai had ever been serious about finding any alternative job.  Neither do I believe that Mr. Lai had any real interest to be retrained as a watchman or car park attendant.  I find that the courses he had attended above were only motivated solely by a desire to make good his claim for damages arising from an alleged future loss of earnings.

74. In the circumstances, having carefully considered the medical evidence and the nature of his pre-accident employment, I find that Mr. Lai should have likely been able to return to his pre-accident job (and I have in fact found that he had indeed returned to his pre-accident job as further discussed below).

75. Having taken into account the experts’ opinions, I accept that Mr. Lai had reasonably recovered by the end of the three-month’s recommended treatments by June 2007.  In spite of my finding that the reasonable period of sick leave should have ended in June 2007, I am however - in view of Dr. Lam’s comments that Mr. Lai would work with reduced efficiency in the beginning - inclined to allow a reasonable period of further 3 months to enable Mr. Lai to slowly regain his full working capacity.

76.  In the circumstances, I find that Mr. Lai should have been able to continue to work as a dim sum si-fu in full capacity as from October 2007.  The extra management job that he also did before the accident was a duty over and above his normal full time job. Thus, I do not think it is reasonable to require him to immediately undertake the extra duty shortly after he resumed his full working capacity.  I consider that he should be allowed some reasonable time to gradually take on the extra management task in another restaurant. I find that a further period of 9 months up to the date of trial is not unreasonable.

  (iv)  Pre-accident earnings

77. Mr. Lai claimed that before the accident, his total monthly salary was $22,000 per month ($18,000 for working as a dim sum si-fu, $1,000 as traveling allowance and $3,000 for supervising dim sum quality).

78. Mr. Lai said he was employed to work for the Restaurant since 2003 up till the date of accident.  However, the two letters of income proof referred to above contain conflicting information as to when Mr. Lai actually commenced working for the Restaurant.  The first letter stated that Mr. Lai started working for the Restaurant in August 2005.  However, the second letter stated that Mr. Lai was engaged to perform extra supervision duty with monthly extra payment of $3,000 from October 2004 (strangely, this date appears to be before the date when Mr. Lai was said to have only been employed in August 2005). 

79. The records of the Inland Revenue Department showing Mr. Lai’s income between the period of November 2004 and March 2006 also appear to be a little baffling.  According to the record for July 2005, the name of the employer was not Sino-American Food & Beverage Company Limited (which operated the Restaurant) but Strong Sing Ltd.

80. Notwithstanding the confusion, I think it was probably due to the common practice in the restaurant business that restaurants are sometimes operated by companies under different names.  Whether the company operating the Restaurant had changes its names or not, for the purpose of this discussion, is irrelevant.  Therefore, I find that Mr. Lai had likely worked for the Restaurant for several years before the accident.

81. The above records of the Inland Revenue Department only show that Mr. Lai’s average monthly earnings – apart for the months between August 2005 and March 2006 during which period his average monthly salary was in fact only $16,000 – was about $18,000.

82. The records from the Inland Revenue Department only show monthly earnings of no more than $18,000.  When Miss Tsang questioned Mr. Lai as to why the wages he claimed he earned was not reflected in the records of the Inland Revenue Department, Mr. Lai answered that it was because his employer had filed the tax returns, and he did not know how the returns had been filed.

83. Mr. Lai was also unable to explain why the Restaurant had stated in his application for the TAVA that his monthly pre-accident salary was $18,000 instead of $22,000 as Mr. Lai had claimed.

84.  Apart from the said letters of income proof by his employer, which I find are of little weight for the purpose of proving Mr. Lai’s income because of their self-serving nature, there are no other documents showing Mr. Lai’s alleged earnings of $22,000.

85.  After having considered all the documents, I am however satisfied that Mr. Lai is able to prove that his pre-accident earnings were not less than $18,000 per month. The real contentious issue is whether Mr. Lai earned an additional $4,000 as Mr. Lai had claimed

86. Mr. Lai relied on his joint-named account in the name of himself and his wife with the Bank of China (01288910053236) to prove the additional traveling and management allowances.  Mr. Lai said that the said account, apart from his regular wages, also shows deposits of sums of $1,000 and $3000.

87. In the circumstances, the best way to determine Mr. Lai’s pre-accident earnings, in my view, is by calculating the total payments shown in the said account for the 12 months before the accident. As Mr. Lai was paid in arrears, I therefore use the period of November 2005 and October 2006 for calculating Mr. Lai’s pre-accident earnings. 

88. I have listed out in the table in Annexure A, annexed with the judgment, most of the payments for the said 12 months in the said accounts. I observe in the said account that Mr. Lai was paid, most of the time, sums of $17,100, mostly on the 4^th day of each month.  In addition, there were payments of the sums of $1,000 and $3,000, though the dates of payment were rather irregular.  After having considered these payments, I am inclined to accept that Mr. Lai received extra allowances of some sorts in sums of $1,000 and $3,000.  In computing Mr. Lai’s pre-accident earnings, I have also included all payments, including deposits in the amounts of $1,000 and $3,000, but excluded three payments of $6,600.72, $20,371.79 and $42,714.19 for the month of August 2006. It is because the said payments contain decimals, they are therefore unlikely to be earnings.  I believe they were either part-payments of the proceeds of the sale of Mr. Lai’s property around the end of 2006 or some unrelated deposits.

89. Mr. Lai’s pre-accident earnings, according to my calculation, are in the total sum of $206,000.  Before I divide the said sum by 12 months in order to work out Mr. Lai’s average monthly income, I am however unable to find any payments in the said account for the whole month of July 2006.  I cannot find evidence to explain for this total absence of payments in July. However, I do not think it is appropriate for me to speculate whether it was due to Mr. Lai having taken on a no pay leave or for some other reasons, I am inclined to simply leave that month out of count. Hence I divide the total amount of payments by 11 months instead of 12.  According to my calculation, therefore, the monthly average income including allowances is $18,727.

90. Mr. Lai has further referred a letter dated 8 June 2007 from the Restaurant, and claimed that his earnings would have likely been further increased by an additional amount of $3,000 as from June 2007.  In this letter, the Restaurant states that the employer had opened another branch restaurant in Siu Sai Wan on 6 June 2007, and it intended to engage Mr. Lai to supervise the food quality by paying an additional sum of $3,000.  It further states that Mr. Lai was not employed because of his injury from the accident.

91. This letter is entirely self-serving, and is hearsay.  Not only will I not attach any weight to the letter, I find the letter further contradicts Mr. Lai’s case.

92. Mr. Lai’s claim of a total loss of pre-trial earnings is on the basis that he was absolutely incapable of returning to his pre-accident job, and that the Restaurant had since found a replacement.  That being Mr. Lai’s case, in my view, it would certainly appear to be inherently unlikely that his employer would still be offering Mr. Lai extra supervisory duty to supposedly a former employee more than 18 months after Mr. Lai had allegedly ceased working for the Restaurant.

93. In my view the employer would only have written such a letter if Mr. Lai were still working for the same employer when the position was available.  In any event, whether Mr. Lai had continued to work for the same employer or not, the said possibility, in my view, is too remote to be able to have sounded in damages.

94. In the circumstances, I find Mr. Lai’s total pre-accident earnings inclusive of allowances are in the sum of $18,727.

(iv) The nature of the monthly payments of $10,000

95. A further complication in this case is Mr. Lai’s disclosure for the first time during the hearing of the monthly regular payments of $10,000 from his employer he had received since the accident continuing up to the date of the hearing.  Mr. Lai was rather evasive about the nature of the payments.  At first, he said the payments were for his living and medical expenses.  Later at the cross-examination, Mr. Lai said that the payments were loans, and he would repay them.  When he was asked how long his employer would be paying him, he said that his employer would continue to pay him until he was paid damages in this case.

96. The bank statements of Mr. Lai’s said joint account disclosed up till January 2007 do show payments of $10,000, also on the 4^th day of each month- the usual payment date before the accident.

97. However, I do not consider Mr. Lai’s evidence regarding the nature of the payments has any ring of truth.  I find Mr. Lai’s first explanation that the payments were for medical and living expenses wholly unbelievable.  Mr. Lai’s traffic accident did not arise in the course of his employment.  Thus, unless his employer was exceptional generous (and I do not see any evidence of that), there is no logical reason why his employer has continuously been paying for his living and medical expenses.  In any event, Mr. Lai’s medical expenses do not appear to be substantial as he received almost all his treatments in the government hospitals.  In the absence of any supporting evidence, I do not accept Mr. Lai’s evidence.

98. I also reject Mr. Lai’s second explanation that the payments were in the nature of loans.  Shortly after the accident, Mr. Lai already received a sum of about $80,000 from TAVA.  In addition, Mr. Lai also sold a property shortly after the accident, and received more than $200,000 as proceeds of sale.  There is no evidence that Mr. Lai was in such financial difficulty that required a regular monthly loan of $10,000 from his employer.

99. Further, there is also no agreement showing either how much Mr. Lai was “borrowing” from his employer or when Mr. Lai was required to repay the loans.  The absence of any documentary evidence to support Mr. Lai’s alleged reasons for the said monthly payments makes the nature of the payments highly suspect.

100. In the circumstances, I disbelieve Mr. Lai.  I find that the payments are likely to be his post-accident earnings of $10,000 per month.  The reduced wages Mr. Lai received was probably due to the reason that he did not return to work full capacity after the accident.  I further find that in the first month after the accident, Mr. Lai had even continued to undertake the supervisory duty as the said bank account shows that he was paid $3,000 on 6 November 2006 – which would likely have been for the allowance for the month of October 2006.

101. I do not find the said letter of income proof dated 13 January 2007 stating that Mr. Lai’s additional allowance of $3,000 was suspended from October 2006 is likely to be true as Mr. Lai’s said bank statements clearly show a payment of $3,000 in November 2006.

102. Mr. Lai had only produced bank statements of the said joint account up to January 2007.  There are no documents showing whether Mr. Lai was only paid $10,000 a month or in fact more after January 2007.  However, in the absence any evidence suggesting the contrary, I am prepared to accept that Mr. Lai had only been paid partial monthly wages of $10,000 up to the date of trial for the purpose of calculating his pre-trial loss.

DAMAGES

(1)  Pain, Suffering, and Loss of Amenities

103. Mr. Wong submits that the injuries Mr. Lai suffered fall within the lower range of the serious injury category, and the award should be about $440,000.  He cites Muhammad Saddiq v Cheung Chi Keung, unrep. (HCPI 1018 of 2003, d.o.j. 8 April 2008), and Yuen Pak Cheong v Chan Ka Leung unrep. (HCPI 254 of 2003, d.o.j. 20 April 2004).

104. Miss Tsang contends that the medical evidence shows that Mr. Lai has recovered, and his present complaints of residual pain were exaggerated. She further contends that the appropriate award should only be $220,000, citing Chan Chung Keung v Greenroll Limited trading as Conrad Hong Kong, unrep. (HCPI 275 of 2005, d.o.j. 20 December 2005), Fung Lee Hung v The Spastics Association Hong Kong, unrep. ( DCPI 1112 of 2005, d.o.j. 16 October 2007), Shah Nisar v Wai Kit Enginering Company Limited & 2 ors., unrep. (HCPI 1092 of 2003), Limbu Ramesh v Chu Fung Man, unrep. (HCPI 192 of 2005, d.o.j. 28 April 2006) and Mohammed Ashaq v Royal Honour Industrial Limited, unrep. (DCPI586 of 2007, d.o.j. 27 November 2007).

105. I have found that Mr. Lai has only suffered soft tissue injuries to his neck, chest and contusion to his lower back, which injuries have satisfactorily recovered. I am of the view that Mr. Lai has exaggerated his residual pain and muscle weakness.  In the circumstances, I consider the injuries bear resemblance (though not identical) to the injuries of the plaintiffs in Chan Chung (ibid.), Keung Fung Lee Hung (ibid.) and Mohammed Ashaq(ibid.).  I accept the Defendant’s contention in the Answer, and award a sum of $220,000.

(2)  Pre-trial loss of earnings

106. I have already found in the above that Mr. Lai’s pre-accident earnings inclusive of all the extra allowances were in the total sum of $18,727.  As I have found that Mr. Lai has been receiving partial wages from his employer, these payments should also be deducted from the loss of earnings.

(i)  For the one month of October 2006, I have found that Mr. Lai received altogether $13,000 as partial wages (see paragraphs 100 and 101 above), his loss is therefore:

$18,727 - $13,000 = $5,727

(ii)    Between the periods of November 2006 till September 2007, Mr. Lai had also been paid $10,000 per month. His loss is therefore:

($18,727 - $10,000) x 11 months =  $95,997

(iii)  For the period of October 2007 up to the date of trial, I have found that Mr. Lai should be able to return to work in full capacity as a dim sum si-fu, but unable to immediately undertake the extra management duty (see paragraphs 75 and 76 above).  Hence, the only loss during this period would only be the extra allowances.  He said he was paid of $3,000 per month.  In calculating Mr. Lai’s pre-accident earnings, I have observed in the said account that there were indeed payments of sums of  $3,000, but they were not regular. I further note in the said account other payments of different sums of, for example, $9,000 and $4,000 on 21 January 2006.  These payments might also be allowances for the management duty.  I believe that it is likely that Mr. Lai would only be paid when he performed the extra duty. Hence, the irregular payments.  After having considered all the evidence in the round, I am inclined to find that it is likely that Mr. Lai’s would be performing the extra duty more regularly every month, and was paid $3,000 a month.  Hence, the loss is:

$3,000 x 8 months = $24,000

107. The total amount of pre-trial loss of earnings is ($5,727+ $95,997+ $24,000) $125,724.

(3)  Pre-trial loss of MPF

108. As Mr. Lai’s earnings are found to be less than $20,000, the loss of the MPF contributions from the employer would have been 5% of the total loss of earnings.  The loss is therefore calculated at $125,724 x 5%  = $6,286.

(4)  Future Loss of earnings and loss of MPF

109. As I find on balance that Mr. Lai has failed to prove that he is unable to return to work as a dim sum si-fu, I find there is no loss under this head of claim.

(5)  Loss of earning capacity

110. In view of his age, and the injuries he has suffered, I am inclined to find that sometime in his future career, Mr. Lai would probably be at a disadvantage in the open labour market.  Mr. Wong suggests an award of $100,000.  This amount represents a sum slightly less than Mr. Lai’s 6 months’ earnings.  I consider it reasonable, and allow this amount.

(6)  Special Damages

111. I also grant an award of $30,000 as agreed.

SUMMARY OF AWARDS

		HK$
(1)	Pain, Suffering, Loss of Amenities	220,000
(2)	Pre-trial loss of earnings	125,724
(3)	Pre-trial loss of MPF	6,286
(4)	Future loss of earnings and loss of MPF	0
(5)	Loss of earning capacity	100,000
(6)	Special damages	30,000
	TOTAL	HK$482,010

INTEREST

112. I further award interests at the usual rate of 2% on general damages from the date of the writ until judgment, and half of the judgment rate on pre-trial loss of earnings and special damages from the date of accident until judgment.

CONCLUSION

113. I therefore enter judgment for the sum of $482,010 together with interest calculated in the rates set out above.  As the amount Mr. Lai is allowed to recover falls within the District Court limit, I therefore grant in his favour a costs order nisi to be taxed at District Court scale, together with a certificate for counsel.

Annexure A

The Plaintiff’s pre-accident earnings between November 2005 to October 2006 (as shown in his bank account)

Date of payment	Amount ($)
04/11/05	1,000
04/11/05	17,100
10/12/05	3,000
05/01/05	1,000
05/01/05	17,100
21/01/06	9,000
21/01/06	4,000
04/02/06	8,100
04/02/06	1,000
04/03/06	1,000
04/03/06	17,100
04/04/06	18,100
04/05/06	17,100
04/05/06	1,000
08/05/06	3,000
05/06/06	18,100
06/06/06	3,000
08/08/06	3,000
08/08/06	17,100
08/08/06	1,000
04/09/06	17,100
04/09/06	1,000
07/09/06	3,000
04/10/06	17,100
04/10/06	1,000
04/10/06	3,000
05/10/06	3,000
Total	206,000