WONG HOI HUNG v. DUNG KAM KIT

HCPI 81/2019

[2022] HKCFI 52

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 81 OF 2019

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BETWEEN

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ASSESSMENT OF DAMAGES

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Background

1.  The plaintiff encountered a road traffic accident on 12 February 2018 when he was alighting from a green minibus driven by the defendant. His right lower limb including the knee and the ankle had been run over by the minibus and he suffered personal injuries.

2.  Liability has been admitted by the defendant and by a consent order dated 9 April 2019, interlocutory judgment on liability has been granted in favour of the plaintiff leaving damages to be assessed.

3.  This is a hearing for assessment of damages. The main dispute turns on whether the plaintiff could return to his pre-accident job and when.

Plaintiff’s case

4.  The plaintiff is the only witness for this hearing. He adopted his witness statement dated 30 August 2019 and his supplemental witness statement dated 16 July 2020 as his evidence-in-chief.

5.  The plaintiff was born on 3 December 1974 and was 43 years old at the time of the accident. He is now 46. He is a chef for 29 years and had been working as a chef in a hotel since 30 July 2012 until he was dismissed on 17 July 2018 because of his absence from work due to this injury. He earned an average monthly salary of $33,545 (before tax). His job in the hotel required him to keep standing and walking, squatting down, going up and down the staircase and to lift a weight of 50 lbs food material and 100 lbs cooking utensils.

6.  Upon admission to the Accident & Emergency Department of United Christian Hospital after the accident, physical examination showed right medial knee abrasion with tenderness over calf and mild abrasion over right upper leg. There was also tenderness, bruises and swelling over right anterior foot. The plaintiff was diagnosed to have fracture of fibular neck. He was wheelchair bound for the first 2 months and was referred to the out-patient clinic of the Department of Orthopaedics & Traumatology for follow up and had undergone occupational therapy treatment (from 27 February 2019 to 2 May 2019) and physiotherapy treatment (a total of 24 sessions from 28 February 2018 to 8 August 2018) as well. He was granted sick leave from 12 February 2018 to 21 October 2020 (E/76-92).

7.  The plaintiff said he still had pain in his right foot which affected his ambulation and he couldn’t stand or walk for long so he could not go back to his pre-accident job as a chef with the hotel. He had obtained a license to work as security guard and had managed to start working as a security guard since 1 July 2020 with a monthly income of $16,900. But he can only manage to work for 7 to 8 days each month since the pain on his right foot aggravated after the first day at work. His duty as a security guard included foot patrol once a day of the building and of the carpark, other than this, he can be seated most of the time.

8.  At this hearing, the plaintiff claimed for:

a. PSLA	HK$200,000.00
b. Pre-trial Loss of Earnings	HK$1,161,599.50
c. Loss of Future Earnings	HK$3,646,326.60
d. Loss of MPF	HK$240,396.30
e. Loss of Earning Capacity	HK$300,000.00
f. Special Damages	HK$37,890.00
Total:	HK$5,586,212.40

The Expert Evidence

9.  The plaintiff was jointly examined by 2 orthopaedics experts, Dr Wong for the plaintiff (“Dr Wong”) and Dr Yip for the defendant (“Dr Yip”) on 17 October 2019.

10.  At the joint examination, the plaintiff told the experts that he still had, inter alia, the following symptoms:

a. Right 2^nd to 4^th toe numbness, right foot electric shock sensation twitching;

b. Right ankle pain and swelling sensation (circumferential);

c. Right foot dorsum and sole pain and swelling;

d. Difficulty with stairs (weakness and pain), needs both stick & holding rails for support. Level Ground walking slowly, tolerance 1.5 hours and needs rest intervals;

e. Medial knee pain on pressure, pain on squat and cannot achieve full squat; and

f. Left ankle and heel pain due to shifting weight.

11.  The respective opinion of the experts is summarized hereinbelow:

	Dr Wong	Dr Yip
Diagnosis	Apart from fibular head and neck fracture, a significant amount of soft tissue injury resulted in weakness, persistent pain and stiffness. Healing of abrasion wound takes 6 weeks which showed the degree of soft tissue injury was not light.	Non-displaced right fibular head fracture, right knee simple abrasions and minor abrasions over right shin and soft tissue injury of the right foot. Abrasion injury is a minor skin injury and not objectively known when the abrasion was healed.
Treatment	Appropriate and reasonable.	Standard and appropriate.
Working Capacity	Not able to return to his pre-accident job. Suitable for employment not involved in prolonged standing or walking.	Should be able to return to his pre-injury work if he was motivated.
Sick Leave	Sick leave granted till 5 June 2020 is justified.	A reasonable period of sick leave would be 2 months.
Surveillance evidence	Needed to carry a walking stick with him most of the time, this showed the pain experienced by him on walking was genuine. A mild limping gait only and could walk more than 1.5 to 2 hours but often needed an aid. Believe there was residual chronic pain when walking.	Able to walk with confident normal gait with big strides, forceful on his feet and able to wear flip-flops which provides no support for the feet. Inconsistent with the alleged difficulty with standing on single leg at the joint examination.

Monthly Income after Tax Deduction

12.  It is not in dispute that the plaintiff was earning an average monthly income of $33,545. However, the defendant contended that the tax liability should be deducted in the calculation of the monthly multiplicand for assessment of loss of earnings. Mr Lau for the plaintiff had accepted this contention in his closing submissions. Hence, after deducting the tax liability of $7,411/year, the net average monthly income should be $32,928. It is also not in dispute that for the income earned, the plaintiff is entitled to a loss of $1,500 for his MPF.

Reasonable Sick Leave

13.  There is the argument as to what should be the reasonable sick leave for the plaintiff. The defendant adopted the opinion of Dr Yip and contended that 2 months from the accident should be reasonable. The plaintiff however said that Dr Wong’s recommended sick leave for the period from 12 February 2018 to 5 June 2020 should be accepted instead.

14.  It is trite that the sick leave certificates are not binding on this court. Dr Wong is endorsing the sick leave period granted by the treating doctors on the ground that “(T)he persistent pain, which I regarded as chronic and failed exercise tolerance after the injury justified the period of sick leave granted” till 20 December 2019 (D/160). And as for the sick leave after that, Dr Wong found that the consultation notes on 20 December 2019 still show pain at right lower limb with weakness and painkiller prescribed “has a side effect of drowsiness and its not safe for patient to work … (as a cook), so I think the extended period of sick leave till 5 June 2020 is justified” (D/164). Dr Yip opined that “(A) reasonable period of sick leave would be 2 months at the most, given the pace of the recovery and the absence of any objective serious pathology in the acute phases” (D/161).

15.  It is not in dispute that the plaintiff was on wheelchair for 2 months after the accident and had been receiving treatment all the way until 8 August 2018 for physiotherapy and 2 May 2019 for occupational therapy. To suggest that the plaintiff should only require a 2-month sick leave is a bit farfetched. As revealed from the physiotherapy progress note dated 11 April 2018 (F/29-30), the plaintiff still had not regained full power for his right ankle and foot and there was still acute inflammatory sign on his right lower limb.

16.  Having said so, neither do I agree that the plaintiff should have sick leave till June 2020. Dr Wong relied on the subjective complaint of the plaintiff of pain on his foot to justify the sick leave until December 2019 and thereafter on the side effect of the painkillers prescribed. Yet, there is no evidence from the plaintiff as to how often he was required to take the painkillers and there is no objective evidence to support the allegation of pain (detailed analysis to be dealt with below).

17.  With the occupational therapy ended in May 2019, it can be taken that no further therapeutic treatment was required for the plaintiff and his condition should be considered static or stable. Further consultation with orthopaedics of United Christian Hospital also confirmed the same since only painkillers were prescribed and to be taken on need basis without any further treatment or recommendations. There is no need for sick leave to be continued until achieving full recovery or perfect health.

18.  I found the sick leave should end by May 2019.

Can the plaintiff resume his pre-accident work

19.  The next question is whether the plaintiff could return to his pre-accident work.

20.  It is the plaintiff’s case that he cannot resume his pre-accident work since the pain on his right foot had affected his ambulation and he cannot stand or walk for long which is the requirement of his work as a chef with the hotel.

21.  Dr Wong had expressed similar observation whilst Dr Yip opined that the pain demonstrated by the plaintiff was an exaggeration and not genuine. Having considered the evidence, I agree with Dr Yip.

22.  The plaintiff was captured in surveillance on different occasions in May, July, August 2019 and February, March and May 2020. As depicted in the surveillance video, the plaintiff could walk with normal gait in flip flop and had not shown any discomfort. He was captured walking with his wife in most of the recordings and as the two walked side by side, one can see that the plaintiff was walking in the same gait and pace as his wife did and no abnormality could be seen on the part of the plaintiff. And the plaintiff was also captured overtaking other pedestrians on his way. Even though the plaintiff was having a stick or an umbrella in his hand, I agree with the observation of Dr Yip that the plaintiff “often carrying the walking stick … rather than actually needing it” and “able to walk with confident normal gait with big strides, with a tendency to be forceful on his feet and yet able to wear flip-flops which provides no support for the feet” (D/164).

23.  When being cross-examined on his walking performance and why he was not using the walking stick, the plaintiff tried to offer different reasons to explain, including the physiotherapist told him not to rely on the walking stick, there were good days and bad days and he deliberately not bringing his stick because he did not want his wife’s friend know of his disability. All these explanations had never been stated in the witness statements of the plaintiff. In the witness statements, the plaintiff is painting a picture that he had pain which affected his walking and standing tolerance, and the walking stick was a must for him. Not using the walking stick is inconsistent with someone who had so much pain on his foot and the explanation of the plaintiff in his evidence shows exaggeration.

24.  Most importantly, the explanation by the plaintiff that he was never advised not to wear flip flops is apparently inconsistent with the advice to put on “wide box shoe wear” at the orthopaedics consultation on 13 November 2018. In any event, even without such advice, if the plaintiff did have persistent foot pain, flip flops should never be his choice.

25.  And the recording taken on 25 August 2019 in the surveillance video showed the plaintiff walked for a very long day and could manage to squat without any difficulty. If the plaintiff could manage to walk all day, even with rest during MTR or whilst having food (as suggested by the Plaintiff) which will only be brief, one wonders why he would not be able to manage with his pre-accident job as a chef which should not require any walking as lengthy as he had on 25 August 2019.

26.  Further, there is no objective sign in this case to show the element of pain. As observed by Dr Yip, “there clearly is no objective medical evidence clinically on examination or radiologically to explain his symptomatology, if genuine” (D/158).

27.  It is sufficient to add that the records by treating doctors show that the plaintiff managed better mobility and flexibility before the examination by the experts in October 2019. As observed by Dr Yip in the Joint Medical Report, objective evidence showed significant symptoms of exaggeration and feigning (D/157-158):

a. At the orthopaedics consultation on 20 February 2018, the plaintiff was allowed full weight-bearing walking which was inconsistent with his complaint to the experts;

b. Able to use elbow crutches with non-weight bearing instructions with good stability after only 1 session of physiotherapy training on 13 February 2018, the reliance on wheelchair and walking frame and crutches is simply untrue;

c. Physiotherapy progress note of 28 March 2018 already documented to already walking unaided but with a very mild limp, yet attended the Orthopaedics & Traumatics (“O&T”) consultation on 3 April 2018 and 30 April 2018 with a walking stick;

d. From the O&T consultation notes on 3 April 2018, Dr Yip opined that the plaintiff showed “little objective residual serious abnormality” but at the O&T consultation on 30 April 2018, his situation deteriorated so much so that his right ankle’s plantar flexion was decreased to 10 degrees as “limited by pain” and he could not perform the McMurrary test “due to significant pain” (F/7);

e. Could not achieve a full squat at the joint examination but full squat performance recorded in the occupational therapy records dated 27 February 2019, 9 April 2019 and 2 May 2019;

f. The MRI findings at the O&T consultation on 11 June 2018 showed no abnormality on the right ankle and did not support the severe disability/tenderness demonstrated at that outpatient session;

g. Demonstrated slight weakness on his right knee at the joint examination but was found with full power on his right knee at the physiotherapy treatment on 21 June 2018; and

h. On 8 November 2018, the last physiotherapy test show the plaintiff had unlimited walking tolerance, full muscle power and close to normal range of movement for both right knee and right ankle with occasional pain at the minimal level of 1-2/10 (F/65-66), yet the plaintiff’s condition had become worse as demonstrated in the joint examination.

28.  Dr Wong did not make any comments on Dr Yip’s above opinion and his assessment of the plaintiff’s impairment relied heavily on the subjective complaint of pain from the plaintiff without any objective support or analysis.

29.  The plaintiff (so did Dr Wong), relied heavily on the findings of the physiotherapist and occupational therapist that the plaintiff was not fit to continue with his pre-accident job. In any event, the findings of the therapists were way back in 2018 and 2019, ie at a time close to the accident and whilst the plaintiff was still on sick leave and the therapists did not have the benefit of seeing the plaintiff in action in his daily life as depicted in the surveillance videos. It would only be fair for the physiotherapist to come to the conclusion that the plaintiff’s “current functional capacity level not matched previous physical job demand” (F/52) (emphasis added) and the occupational therapist also found “not match” in the item under “Overall Matching of Work Demand & Current Capacity” (F/83) (emphasis added). However, as time goes, his condition should have improved as revealed from the surveillance videos. And during assessment by doctors or therapists, the results depends a lot on the voluntary effort of the injured. A more reliable assessment should be based on the nature of injury and objective findings as demonstrated by Dr Yip in the Joint Medical Reports.

30.  As for the lifting capacity of the plaintiff, he told the experts at the joint examination that “he could only carry his usual 2kg sack of rice” (D/154). However, in the physiotherapy progress note dated 16 October 2018 (F/63-64), he was found to have “LIGHT to MEDIUM level of work capacity (40 lbs)” even with ankle pain then. It is beyond belief that his ability will be deteriorated as time passes. And given the findings that his pain is unlikely to be genuine and not persisting, his lifting ability should also have been improved. I do not accept that the plaintiff had any difficulty in meeting the lifting capacity required in his pre-accident job.

31.  Having considered all the evidence, I do not accept that the plaintiff’s pain and disability is so serious that he could not return to work in his pre-accident job. I found the plaintiff should be able to return to work as a chef in the hotel without any reduction of working capacity as opined by Dr Yip.

PSLA

32.  There is no dispute on this item and parties agreed that the PSLA should be in the sum of HK$200,000. I agree.

Pre-trial Loss of Earnings

33.  Given my ruling on the reasonable sick leave period and the plaintiff can resume his pre-accident job, the period for total loss of pre-trial loss of earnings should run from the date of accident, ie 12 February 2018 to 2 May 2019 plus a period of at least 3 months to be allowed for the plaintiff to look for new job. Accordingly, the total loss of earning shall end on 11 August 2019.

34.  The full loss for the period of sick leave should be ($32,928 + $1,500) x 18 months = $619.704.00. Credit should be given to the sick leave allowance received from the plaintiff’s employer in the sum of $114,776.00.

35.  As for the pre-trial loss from 12 August 2019 to 12 October 2021, given my ruling that the plaintiff should be able to resume his pre-accident job, the pre-trial loss should end on the expiry of his sick leave as well.

Future Loss of Earnings

36.  Given my ruling that the plaintiff should be able to resume his pre-accident job as a chef in a hotel, there should be no post-trial future loss of earnings suffered by the plaintiff.

Loss of Earning Capacity

37.  The plaintiff has to establish that he will be handicapped in competing in the open market due to his disability.

38.  Dr Yip opined that there should be no permanent impairment of the whole person for the right knee and right foot of the Plaintiff, hence no loss of earning capacity. Dr Wong disagreed and found that given the persistent pain, stiffness and weakness of right knee, right ankle and foot, the Plaintiff is only suitable for employment not involved in prolonged standing or walking and he needs interval resting periods of 5 to 10 minutes after 2-3 hours standing or walking.

39.  In view of my ruling that the plaintiff should be able to return to his previous job as a chef, the issue to be considered will be whether there is a real or substantial risk that the plaintiff might lose his pre-accident job in the future and what is fair and reasonable for the loss of earning capacity.

40.  Since I have found the pain and stiffness of the right foot and ankle of the plaintiff are unlikely to be genuine, the basis of Dr Wong in support of his conclusion that the plaintiff did have some impairment in his earning capacity cannot stand. In any event, the impairment described by Dr Wong, ie employment not involved in prolonged standing or walking and he needs interval resting periods of 5 to 10 minutes after 2-3 hours standing or walking cannot be considered an impairment at all. A rest interval of 5 to 10 minutes after 2-3 hours standing or walking should be a must for ordinary people as well.

41.  I do not accept that the plaintiff had suffered any disadvantage in the labour market and this head of claim should be disallowed.

Special Damages

42.  There are 3 heads of claim under this item. The defendant had no dispute on the claim of medical expenses in the sum of $10,890. The only issue turns on the claim for tonic food and travelling expenses.

43.  Since the plaintiff admitted under cross-examination that other than the receipts produced in the hearing bundle, he did not purchase any other tonic food, the defendant submitted that the total sum on tonic food should only be $450. And the plaintiff also admitted that not all the taxi receipts he produced are for medical need since some of the taxi receipts showed that the service of a taxi was being engaged in very late hours. The defendant accepted a lump sum of $4,000 is reasonable for the claim on travelling expenses.

44.  The plaintiff on the other hand submitted that a total sum of $10,000 is reasonable for the 2 items in dispute taking into consideration the evidence of the plaintiff in court.

45.  Given the admission by the plaintiff in his testimony, I fail to see why a sum more than supported by the receipts should be awarded for tonic food. As for the travelling expenses, the plaintiff is claiming a total of $7,000 in the Revised Statement of Damages. With his admission as revealed from the evidence and having considered the receipts produced (E2/152-165), I allow a sum of $5,000 for this head of claim.

46.  In conclusion, I allowed $10,890 + $450 + $5,000 = $16,340 for special damages.

Summary on Quantum

47.  In summary, the quantum of damages is assessed at:

PSLA			$200,000.00
Pre-trial loss of earnings and MPF			$619,704.00
Post-trial loss of earnings			nil
Loss of earning capacity			nil
Special Damages			$ 16,340.00
	Sub-total		$ 836,044.00
Less: Sick leave allowance			($114,776.00)
Final award:			$721,268.00

Interest

48.  Interest on damages for PSLA runs at 2% per annum from the date of writ to judgment. Interest on pre-trial loss of earnings and special damages runs at half judgment rate from date of accident to judgment. Interest from judgment until full payment runs at the judgment rate.

Costs

49.  As for costs, the plaintiff should be entitled to costs. Since the award is within the jurisdiction of the District Court, costs should be taxed according to District Court scale.

50.  Costs order nisi that the plaintiff do have costs of the assessment with certificate for counsel to be taxed on District Court scale if not agreed with Legal Aid taxation for the plaintiff’s own costs. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.