WONG TSAN MING v. TSE CHI MAN AND ANOTHER

HCPI 73/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 73 OF 2007

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

INTRODUCTION

1. The Plaintiff, the sole-proprietor of a decoration and construction company specializing in painting work, W.M. Company (“the Company”), met a traffic accident on 8 October 2004.  He suffered injuries and brought the claim for damages against the driver and the owner of the offending vehicle.

2. The claim against the driver was discontinued and interlocutory judgment by consent was entered against the owner, the 2^nd Defendant, on 16 May 2007.

3. I am now asked to assess the Plaintiff’s damages arising from the accident.

INJURIES AND TREATMENTS

4. After the accident, the Plaintiff’s felt severe pain at his limbs, particularly at his right leg.  He was conscious when he was admitted to the Government Hospital.  His right tibia plateau (as shown on the x-ray) was fractured.  He also had abrasions at the elbows.  He was hospitalized in the Orthopaedic & Traumatology Department of the Queen Elizabeth Hospital (“QEH”) for 21 days.

5. The CT scan showed that the fracture was extensive.  Close reduction and internal fixation was done 4 days after his admission.

6. The Plaintiff was also treated with a course of antibiotics for the severe soft tissue crush injury and persistent fever after the operation.

7. Due to the extensive fracture, the fracture was not well reduced.  The treating doctor waited for the bone to be healed before further operation.

8. After the operation, the Plaintiff started receiving physiotherapy and walking exercises

9. He was discharged on 28 October 2004 when he could walk with elbow crutches, and was given an Exogen machine to be used at home to help speed up bone healing.

10. After the discharge, the Plaintiff continued to receive physiotherapy at the government specialist clinic.

11. On 11 April 2005, the Plaintiff was admitted into QEH for 4 days for a bone graft operation.

12. The Plaintiff continued receiving regular follow-ups at the specialist clinic.

13. By 25 January 2006, the fracture was found to have healed up.  It was observed (according to the government medical report dated 28 February 2006) that the Plaintiff could tolerate walking without walking aids.

14. On 29 October 2007, the Plaintiff was re-admitted to QEH for 2 days for an operation to remove the metal implants.  Three screws however were not removed because the doctor considered it to be potentially risky to take them out. 

15. After the implant-removal operation, the Plaintiff was only required to have follow-up treatments at QEH every 6 months.

16. The Plaintiff was granted the first period of sick leave from 8 October 2004 to 14 February 2006 (16 months 7 days).  He was granted sick leave again from 29 October 2007 to 14 November 2007 (17 days) for the removal of implants.  Hence, the Plaintiff was granted sick leave for a total period of 16 months and 24 days.

17. The Plaintiff said that as a result of the accident, he was no longer able to continue with his pre-accident business, and could only work as an assistant in a friend’s curtain company (but he became unemployed before the conclusion of the hearing).

ISSUES

18. In additional to the usual heads of claim for pain, suffering and loss of amenities (“PSLA”), loss of pre-and-post trial loss of earnings, loss of earning capacity and costs of the medical treatments, the Plaintiff further claims a usual head of loss of a resale of a property he and his wife jointly owned.

19. The 2^nd Defendant does not dispute the reasonableness of sick leave.  The amount of $36,291.90 special damages is also agreed.  The 2^nd Defendant however vigorously challenges all the other heads of claims.

20. The contentions can be summarized as follows:

(1) whether the Plaintiff can now walk in a normal way without walking aid;

(2) whether the Plaintiff can and in fact had continued to do painting-related work; if not

(3) whether it is reasonable of the Plaintiff to cease his painting work business;

(4) what was his actual profits/ earnings before the accident;

(5) whether the Plaintiff reasonably requires a total knee replacement surgery in the near future.

Before discussing these contentions, I will next examine the evidence in this case.

EVIDENCE

21. The Plaintiff is the only witness.  Both the medical reports of the government hospital and the orthopaedic reports of the parties’ experts were adduced as evidence without oral evidence.  The Plaintiff’s expert is Dr. Poon Kai Ming and that of the 2^nd Defendant’s is Dr. David Cheng.

22. After the case was closed, the 2^nd Defendant however applied for and was granted leave to adduce the evidence of the surveillance conducted on the Plaintiff after he had finished giving evidence.  The surveillance report and the video recording contained in the DVD were agreed as evidence without calling the makers.

(1)  Medical evidence on disabilities

23. According to the medical report of QEH, when the Plaintiff was discharged on 27 April 2005 after the bone graft operation, he could tolerate walking with one stick, and the knee range was satisfactory.

24. By 25 January 2006, the fracture had healed up.  The Plaintiff could tolerate walking without walking aids, and the knee range was satisfactory.

25. On 27 April 2006, the experts jointly examined the Plaintiff for the purpose of litigation. In their joint report dated 24 May 2006, the experts recorded that the Plaintiff had generally complained of discomfort of stiffness, pain, and weakness at the right knee especially when negotiating stairs.

26. The experts found the complaints were consistent with the fracture and associated ligament laxity.  They found that the articular congruity of the knee joint was not perfectly reconstituted, but the incongruity was not severe.  They did not find the Plaintiff had exaggerated his complaints. 

27. They believed that the Plaintiff would be suffering from premature knee joint osteoarthritis of his right knee.  They further thought that the Plaintiff would benefit more from intensive muscles-strengthening exercises than considering an early joint replacement surgery.

28. After the removal of implants, Dr. Shen of QEH commented that the bone was grossly deformed, and the knee joint was not normal.  He opined that the Plaintiff’s right knee would rapidly deteriorate in its function when degenerative arthritis set in within a few years, and by which time the Plaintiff would require a total knee replacement.

29. Dr. Cheng and Dr. Poon were also asked to state their opinions whether there was need for a future total knee replacement.  In his report dated 28 April 2008, Dr. Cheng maintained his view that the replacement would not be necessary.  In Dr. Poon’s supplemental report dated 5 May 2008, he commented on the possible complications of the replacement surgery as a result of the screws left in the knee.  He was unable to state conclusively whether the replacement surgery was reasonably required without examining the Plaintiff again.

(2)  The Plaintiff’s evidence

30. The Plaintiff is a married man, living with his family at a self-owned property in Tai Wong Tung Street, Wanchai.  He was 41 on the date of accident, and is now 45 and 1/2.  He received secondary schooling in Mainland China before coming to Hong Kong in 1979.  Before the accident, the Plaintiff had been in the trade of decoration painting for about 27 years, and the sole-proprietor of the Company for about 13 years.

31. Before the accident, the Company was contracted to carry out  renovation work for phases I and II of Parkside Serviced Apartment for a contractor called Yearfull Contracting Limited (“Yearfull”).

32. After the accident, the Plaintiff said that he had to cancel Phase II of the contract. 

33. At about 3 months after the first period of sick leave expired in February 2006, the Plaintiff started working as a causal worker in a friend’s curtain shop, earning about $4,000 per month.  He said when there were more customers, he would be paid a bit more of about $5,000.

34. In May 2006, the Plaintiff sold a property (“the Property”) called the Serenade Cove at Castle Peak Road, and allegedly suffered a loss of $454,000.

35. After the Plaintiff was discharged from hospital at the end of October 2004, the Plaintiff had stated in his witness statement that he still required a wheelchair.

36. He had clarified in his testimony that he had hired a wheelchair for a month between November and December 2004, but had continued to borrow the use of the wheelchair for about 6 months whenever he attended physiotherapy treatment near his home.

37. The Plaintiff agreed that by January 2006, he could walk unassisted without a walking stick.  After the screws were removed in October 2007, he said he was much better.

38. At the hearing, the Plaintiff told me that he now walked slowly with a limp, and felt tired very easily.  He could not climb stairs.  As a result of these residual disabilities, the Plaintiff alleged that he could not resume his pre-accident business.

39. After the Plaintiff had concluded his testimony on 8 May 2008, the 2^nd Defendant however did not terminate its instructions with the surveillance agent, who subsequently kept the Plaintiff under surveillance for several days after the hearing.

40. The new surveillance evidence led to the re-opening of the 2^nd Defendant’s case and the Plaintiff being recalled on 9 July 2008.

41. The Plaintiff gave further evidence and stated that his lost his employment at the curtain shop as result of the surveillance.  At the resumed hearing, the Plaintiff said that he was still unemployed.

(3)  Surveillance

(i)  What did the surveillance show?

42. According to the surveillance report prepared by Take Result Limited, the Plaintiff was put under surveillance from 14 May 2008 for 8 days. 

43. The video recording, which was played in court, recorded the Plaintiff’s activities for 5 days.  In the video, the Plaintiff was seen coming out from his residence at Tai Wong Tung Street in Wanchai, mostly after 9 a.m. (with the exception of two days on 16 and 29 May when the Plaintiff left home at around 11 a.m. and 12 noon respectively).

44. The recording also showed that the Plaintiff started the day with a quick breakfast in a local café. He was seen going to shops selling paint, to a Classical Curtain Company and into a building called Phoenix Court, all of which places were within walking distance of his home in Wanchai.

45.  He was also observed chatting through his mobile phone frequently whilst he walked.  On 16 May 2008, he was observed walking down some stairs at a Wanchai MTR station to meet up a young male, walking together with him to a paint shop.  The Plaintiff bought several cans of paint there.

46. The Plaintiff had also gone to the curtain company for about 10 minutes around noontime.

47. He was also seen entering into a building called Phoenix Court on three days on 26, 28, and 29 May 2008.

(ii)  What did the Plaintiff say about his movements?

48. The Plaintiff did not challenge the accuracy of the recording.  He said that at the material time of the surveillance, he was still working in his friend’s curtain shop, called Classical Curtain Company. 

49. Regarding the Plaintiff’s movements on 16 May 2008, the Plaintiff explained that he was previously served with a removal notice from the Building Department ordering him to remove an illegal structure from his flat. He therefore engaged a contractor to demolish the illegal structure.  The day before the 16^th  of  May, the demolition work was just completed.

50. The Plaintiff went on to explain that after the illegal structure was removed, the walls where the demolition work was done needed to be repainted. In order to save money, he asked his former worker to do the painting job.  This accounted for his purchase of paint in the paint shop as recorded in the video.

51. When the painting work was completed, the scaffolding constructed for the demolition work was also dismantled on 6 June 2008.

52. The Plaintiff’s presence at the vicinity at Phoenix Court, according to the Plaintiff, was because his boss of the Classical Curtain Shop had parked her cars at the carpark of that building.  At that time, the Plaintiff was asked to drive his boss’ cars in connection with the employment after the latter’s driving penalty points were deducted. 

DISCUSSION

(1)  Whether the Plaintiff can now walk in a normal way without walking aid?

53. The medical evidence shows that the Plaintiff had suffered a very bad fracture of his right tibia, and soft tissue injuries.  The operations and treatments (apart from the issue to be discussed below on whether there is need for a complete knee replacement in the near future) are now finished.  I have observed the Plaintiff in court as well as from the surveillance video, and find that he can walk unaided, but with a very noticeable limp. 

54. I further observe from the video that the Plaintiff was able to walk down the stairs at the MTR station (though with a limp) without much difficulty. 

55. In the surveillance video, I was also able to see the Plaintiff walk up a flight of rather steep stairs when entering Phoenix Court.  The Plaintiff was carrying the umbrella, which he used for support as he was walking up the stairs.

56. These recordings show that the Plaintiff walked around streets in Wanchai for quite some time without showing much pain or discomfort.  He was able to walk up and down the stairs.  I accept that he had probably found it harder to walk up stairs than walking down.  I do not find that he required any walking aid when walking up stairs although he was seen using an umbrella for support when he was walking up the stairs outside Phoenix Court.  I believed he used the umbrella for support not because he needed it. It was simply because he had it handy on the rainy day. 

57. On the whole, I am satisfied that the Plaintiff has by the date of the hearing recovered reasonably well, and is independent in his daily activities.

(2)  Whether the Plaintiff can and in fact had continued to do decoration painting or such related work?

58. The Plaintiff said that because of his residual disabilities, he was not fit to do any painting work, and was not able to resume his pre-accident business even after the sick leave had expired.  He could only work at his friend’s curtain shop as a causal worker doing light duty, earning between $4,000 and $5,000 per month three months after the expiry of the sick leave.

59. The Plaintiff’s residual disabilities and their effect were considered by the joint experts. In their joint report, both Dr. Poon and Dr. Cheng took the view that the Plaintiff was unfit to do work that required a lot of physical demand of his lower limbs, like squatting, climbing on ladders and scaffoldings.  They also opined that he was not suitable to work at height on scaffoldings due to his weaker and less agile right lower limb.  He was regarded as unfit to work as a decoration painter.

60. Mr. Lam contended that the experts’ joint opinion was based on the Plaintiff’s misleading description of the Plaintiff’s nature of work.  He submitted that as the experts had not been properly informed of the nature of the Plaintiff’s work, the experts’ comments should not be relied on.

61. Decoration painting was one of the many aspects of the Plaintiff’s pre-accident occupation.  In that sense, therefore, the experts were not entirely misinformed.  They have at least given their opinions in one aspect of the Plaintiff’s job.  I do not therefore think that just because the experts have not commented on the entire nature of the Plaintiff’s work will affect the reliability of the opinion, and should be rejected.  I accept the experts’ opinion and find that the Plaintiff was unfit to do actual decoration painting because of the residual disabilities caused by the injury.   

62. Mr. Lam further questioned whether the Plaintiff had in fact returned to his pre-accident related job.  The surveillance evidence was produced with a view to undermine the Plaintiff’s credibility in this regard.

63. According to the surveillance video, the Plaintiff was seen walking around Wanchai streets and chatting on his mobile phone.  After having watched the video and considered the Plaintiff’s explanation for the movements recorded in the video, I find his explanation credible.

64. I find the Plaintiff’s explanation for his purchase of paint and his meeting up with a man – which he said was for the purpose of the demolition of the illegal structure -  credible because it is supported by the documents the Plaintiff produced.

65. I further find that the Plaintiff’s frequent chatting on the phone as shown in the video is likely to be related to his work for the curtain shop.  I also find that the Plaintiff’s presence at the vicinity of Phoenix Court was in the circumstances the Plaintiff had told me.

66. For these reasons, I find there is no evidence suggesting that the Plaintiff had returned to his pre-accident business or engaged in painting-related work.  I further find that he was indeed employed by his friend at the Classical Curtain Company.

67. To conclude, I find that the Plaintiff (for the period to be discussed below) was not fit to do painting work and had not continued with such related work.

(3)  Whether it is reasonable that the Plaintiff ceased his pre-accident business?

68. The Plaintiff used to be a contractor of painting works in renovation and decoration of both residential and commercial buildings.

69. As the sole-proprietor of the Company, his task was to obtain renovation contracts.  He was required to do some simple paper work such as preparation of work schedules, calculation of estimates and submission of invoices for payments.

70. Once a contract was secured, he would be required to find sufficient casual workers to do the work.  Sometimes, he was also required to engage another sub-contractor if he had to meet a tight completion deadline or when he had more than one project underway.

71. When a project commenced, he would be required to buy materials, monitor and coordinate project.  He would also be required to do some actual painting work himself, which work required him to climb ladders and construction platforms, to squat (when mixing paint, for example), and lift heavy bucket of paint.

72. The Plaintiff agreed that he has now recovered from the accident to the extent that at least he could walk without aid.  However, he said his legs were unsteady when climbing stairs.  He said not only he could not do any decoration painting but it was not practical to continue to run the business because people in this field knew he was crippled and would not give him any contracts, without which, his business would not survive.  He stressed that as his field of work required a high degree of personal involvement, there would be no money to be made if he could not be   personally involved (“力不到不為財”).

73. Thus, the nature of work, according to the Plaintiff, was a combination of experience and labour in the field of construction and designe related work.  The fact that I have found the Plaintiff not fit to do decoration painting does not automatically follow that the Plaintiff will be unsuited to resume the pre-accident business.  It is because the Plaintiff’s business (according to his evidence) is not only painting.  It also involves many other less physically demanding tasks of, among other things, discussing business, making phone calls, doing cost estimates, on-site supervision, coordination of workers, monitoring work quality and progress etc.

74. As can be observed in the surveillance video, the Plaintiff’s main duty at the curtain company seems to be chiefly of finding clients.  If the Plaintiff could chat on the mobile phone almost non-stop whilst walking up and down the Wanchai streets (as the video showed), I believe his disabilities should not prevent him from discussing business projects, which can be done by phone calls and going around to see clients. 

75. Whilst I am able to observe from the surveillance the Plaintiff’s physical condition and walking ability at the time of the surveillance, I have not been shown any video of his condition before the surveillance.

76. As the 2^nd Defendant does not dispute the reasonableness of the sick leave granted to the Plaintiff, there is no need to discuss whether the Plaintiff should return to his pre-accident business during this period. I only need to examine the Plaintiff’s condition after the expiry of sick leave on 14 February 2006.

77. The Plaintiff’s condition after the expiry of sick leave can best be gleaned from the examination by the experts on 27 April 2006.  According to the joint report of the experts, the experts found that the Plaintiff had shown genuine complaints of “right knee pain associated with right leg weakness when walking upstairs, especially when he is tired after exertion.  There is no pain while at rest.  Feeling of right knee stiffness and discomfort on the first few steps after sitting for some time.  General sense of discomfort over his right lower limb after walking for about half an hour on level ground” (see paragraph 6 of the joint report).

78. In view of the Plaintiff’s condition at that time (as shown in the joint report), I do not find it reasonable to require the Plaintiff to do strenuous work before the implants were removed.  I find that his work at the curtain shop was suitable for his condition at the time.

79. Before the Plaintiff’s metal implants were removed, I am satisfied on the evidence that the Plaintiff was not suitable to do any painting work (as the experts have opined), or return to his pre-accident business, which I believe involved, a fair amount of walking.

80. After the expiry of sick leave, I find the Plaintiff had taken reasonable steps by working in an alternative employment with the curtain shop.  In view of the nature of his work, I accept his evidence that he earned about $4,000 to $5,000 per month.  Hence, when calculating his pre-trial income below, I will adopt a median of $4,500. 

81. Between the expiry of sick leave in February 2006 until the removal of the implants in October 2007, the Plaintiff was only doing very light duty work for his friend’s curtain shop. Hence he had further 18 months to recuperate.  I am satisfied (as evidenced by the reports from QEH) that his condition had progressively improved before the operation for the removal of implants.

82. After the implants were removed, the Plaintiff’s condition was much improved.  When he was examined in the QEH on 14 November 2007 after the implants were removed, he told the doctor that he felt better.  At the hearing, the Plaintiff also agreed that he was undoubtedly better because (as he said) there was less weight on his leg after the screws were removed.  However, he said his legs still shook when he walked stairs.

83. After the implants were removed, I find the Plaintiff’s condition should have been dramatically improved.  However, in light of Dr. Shen’s comments that the knee joint was far from normal and that the function would rapidly deteriorate, I do not find that the Plaintiff would be able to meet more physically demanding task of actual painting or its related work, but should be suitable to perform most of other non-painting related tasks of a less strenuous nature. 

84.  Therefore, should the Plaintiff resume his pre-accident business, he would need to find someone else to do the strenuous work. Is such arrangement possible?  If yes, is it financially viable in light of the Plaintiff’s emphasis on personal involvement (as discussed in paragraph 72 above)?

(i) Possibility of engaging outside help

85. During cross-examination on this issue, the Plaintiff insisted that it would not be possible to engage somebody else to do the painting work alone if he were to resume his pre-accident business.  When Mr. Lam pressed the Plaintiff for elaboration, he simply said that such arrangement would result in little profit.

86. The Plaintiff had run the business for many years before the accident, and must have been, in my judgment, extremely experienced with this field of business.  I accept that by engaging a substitute worker to do the work that the Plaintiff is presently unable to do may not be ideal, or even cumbersome.  However, the Plaintiff has not demonstrated to my satisfaction that it is not impossible. I believe that this arrangement is not impossible.

(ii) Financial viability

87. By engaging a substitute worker would necessitate extra expenses, which would reduce the business’ profit.  Thus, in order to find out whether this arrangement would be financially practical, it would be necessary to find out the amount of the extra expenses need to be incurred.

88. The only aspect of work I find the Plaintiff is now unable to do is actual painting and its related work (such as mixing paint).  Thus, the Plaintiff only needs to find a casual decoration painter to do strenuous work such as painting, mixing paint or taking delivery of materials, which the Plaintiff said he also needed to do occasionally.  However, as strenuous work was only part but not all of the Plaintiff’s work, the Plaintiff should not require his substitute to work as many days (of about 26 days a month) as other workers.  For the purpose of calculating the likely extra expenses to be incurred, I would say that the Plaintiff would probably need a substitute for about 16 to 20 days a month, and an average of 18 days.

89. The average daily wage of an ordinary painting work is $650.  Hence the costs of hiring a substitute would be about $11,700 a month ($650 x 18 working days).

90. The Plaintiff’s pre-accident profit was not less than $19,000 per month (see paragraph 116 below). Hence, should the Plaintiff resume his pre-accident business, he will only suffer a loss of profit of about $11,700 per month.  Therefore, I find that the Plaintiff should be able to earn more than what he could earn from the curtain shop.

91. In the circumstances, I conclude that it is not reasonable for the Plaintiff not to return to his pre-accident business after the removal of the implants.  I find that the Plaintiff should have resumed his pre-accident business (though with reduced profit) when the sick leave for the implant operation had ended in about mid-November 2007.  I would say that the reasonable time he should have resumed business is around December 2007.

92. When a plaintiff is able to resume his pre-accident job, he will usually be expected to do so in order to mitigate his loss.  However, I consider it equally reasonable if a plaintiff finds an alternative employment with comparable earnings as the pre-accident job.

93.  Is there such an alternative employment available to the

Plaintiff?

94.  I have found in the above that after the Plaintiff’s implants were removed, he should be able to, with his improved condition, do some less physically demanding work such as a foreman or a supervisor of construction and decoration projects. With his experience and skill in this field, he will certainly be paid more than a mere $4,500 per month. Hence, I do not regard it as an adequate mitigation for the Plaintiff to have continued to work in the curtain shop after the removal of the implants.

95. I do not have evidence on the wages of such kind of work.  Doing the best I can, I will accept a monthly wage of $8,000 as a reasonable wage, which- according to Mr. Lam - is the wage of a light duty job (see Tsang Hing Yuen and Nishimatsu Kumagai Joint Venture [2000] 1 HKLRD 796).  Hence, I find that after the screws were removed, the Plaintiff should be able to earn at least $8,000 per month even if he did not return to his pre-accident business.

96. In view of my finding that the Plaintiff was able to find a job earning more than $4,500, I do not find it necessary to resolve the contention of whether the Plaintiff’s employment was allegedly terminated on 28 June 2008.

97. For completeness, I will simply say that, in view of the Plaintiff’s relationship with the employer, his working arrangement was likely to be loose and informal.  I find that his duty was mainly to find clients, and was rarely required to perform fixed-hour duties inside the shop (as the surveillance recording revealed).  I think the Plaintiff can work for his friend at anytime if he wishes. 

98. Hence, I find the Plaintiff has chosen to stop working for his friend.

(4) What was the Plaintiff’s pre-accident profit?

99. The Plaintiff said that although he also did painting work when he was operating the Company, he had not counted himself as one of the workers of or drawn wages from the Company.  Thus, the profit of the Company represented the Plaintiff’s income.

100. The Plaintiff relies on the profit and loss accounts of the Company for the two financial years of 2003/2004 and 2004/2005 to prove his pre-accident earnings.

101. The profit and loss account of the Company for the period between 1 April 2003 and 31 April 2004 shows a net profit of $221,910 and for the period between 1 April 2004 and 31 March 2005, $253,390.

102. Both counsel agree that the average monthly profit for the financial year 2003/2004 should be $18,492.50.  The contention is about whether the total profit for the financial year 2004/2005 should be divided by 6 or by 12 months. 

103. Mr. Wong submitted that as result of the injuries, the Plaintiff had to cancel Phase II Parkside Serviced Apartment renovation contract for Yearfall.  He submitted that had the Plaintiff not injured, the Company could have received the said contract fee. Mr. Wong therefore submitted that as the Plaintiff’s earnings ceased after the accident, the sum of $253,390 should only reflect the net profit for the first 6 months before the Plaintiff met the accident.  Thus, dividing the amount by 6 months, Mr. Wong asserts that the Plaintiff’s average monthly profit for the financial year 2004/2005 should be $42,231.67.

104. Based on the said assertion, the Plaintiff claims that his pre-trial monthly income is $30,362.09.

105. Mr. Lam disagreed with this approach.  He said that the fairer way of determining the Plaintiff’s profit for year 2004/2005 was to divide the total net profit by 12 months instead of 6 months. 

106. Mr. Lam argued that as the Plaintiff had chosen not to divide his account to specifically reflect his earnings before the accident, the Plaintiff should not therefore be allowed to take an unfair advantage on the assumption that the earnings of his business immediately dried up after the accident. 

107. Mr. Lam further contended that the Company’s account with the Standard Chartered Bank did not support the Plaintiff’s assertion as the statements showed continuous deposits into this account after the accident. The continuous banking transactions, Mr. Lam contended, clearly showed the erroneous approach Mr. Wong had adopted in calculating the average profit for the said financial year.

(i) Discussion

108. The Plaintiff has the burden of adducing evidence in proving his pre-accident earnings.  Mr. Wong’s approach, in my judgment, is speculative at best, and is clearly not supported by any evidence.  Instead of filing accounts to separate the Company’s profit before and after the accident, the Plaintiff’s used an assumption that the Company’s business was completely wound up immediately after the accident. 

109. I am not in favour of this approach as there is no justification for the said assumption. Hence, I reject Mr. Wong’s approach.

110. I agree with Mr. Lam that after the accident, the bank statements of the Company tend to show that the Plaintiff’s business did not halt immediately.  In fact, as shown in the table I have prepared in paragraph 111 below, the Company’s bank statements with the Standard Chartered Bank show a large amount of deposits into the Company’s account up till around the end of July 2005 (which is well beyond the ending date of 31 March 2005 for the financial year 2004/2005).

111.  Deposits between 6 October 2004 and 5 August 2005

STATEMENT DATE: 6th of	TOTAL MONTHLY DEPOSITS ($)
November 2004	577,722
December 2004	597,548
January 2005	296,000
February 2005	1,398,786.92
March 2005	133,874
April 2005	370,800
May 2005	113,000
June 2005	184,450
July 2005	105,950
August 2005	140,000

112. The deposits shown in the table above show that notwithstanding the Plaintiff’s injuries, the Company’s business had continued for some time (at least up to the time of the closure of the Company in July 2005) after the accident.

113. Further, according to a Subcontractor Payment Certificate of Yearfall, the final account of the Parkside Serviced Apartments contract showed that the final amount payable was $112,498.85.  It appears that a cheque dated 15 October 2005 (numbered 024435) was paid to settle the said final sum.  However, the bank statements of the Company’s account with the Standard Chartered Bank show no such cheque deposit.  When the Plaintiff was cross-examined about this cheque, he was unable to account for it.

114. I find the Plaintiff’s inability to account for this payment in his business bank account is unsatisfactory.  In conclusion, I find that it is likely that the Plaintiff still received payments for projects he had commenced either before or after the accident, or even both.

115. For these reasons, I agree with Mr. Lam that the average monthly profit for the financial year 2004/2005 should be divided by 12.

116. The Plaintiff’s average monthly profit before the accident is therefore $19,804.17. 

(5)  Whether the Plaintiff requires a total knee replacement operation in the future?

117. The Plaintiff relies on the medical report of Dr. Shen of the QEH dated 8 April 2008 to support his claim.

118. In the report, Dr. Shen opined that the Plaintiff’s extensive injuries would lead to rapid deterioration of the function and aggravation of pain at the right knee in a few years, and he would require a total knee replacement.

119. Before the removal of the Plaintiff’s implants, the experts had commented that the Plaintiff “may finally require a right total knee replacement, but the need is probably not imminent in the next few years”.

120. After the Plaintiff’s implant-removal operation, Dr. Cheng   opined that it would be more practical for the Plaintiff to concentrate on muscle strengthening programme rather than contemplating on an early total knee surgery.

121. Dr. Poon is unable to say conclusively without a re-examination of the Plaintiff.  He only commented in the supplemental report of the possible complication of the remaining screws still left in the knee for the future operation.  He further stated in the report that “the on-the-spot technical difficulties would still be speculated on theoretical grounds and the genuine final situation will remain an open verdict until the surgery has been performed”.

122. Mr. Lam submits that the Plaintiff has failed to adduce sufficient medical evidence to satisfy the criteria for awarding cost for a future operation as a separate award laid down by Master Patrick Chan (as he then was) in Lam Kwong Ting v Ho Yau Yuen [1990] 2 HKC381 at 385A-C.

123. There is no dispute that where the cost of a future operation is to be awarded as a separate claim, a plaintiff needs to satisfy the criteria laid down in Lam Kwong Tin.  I summarize the criteria below:

(i)        the burden is on a plaintiff to satisfy the court that the future operation to be carried out is done on medical advice, and that it is necessary or reasonably required for the purpose of recovery or improvement of the injuries sustained or the relief of persistent pain and suffering;

(ii)       the operation is anticipated or likely to take place in the near or reasonably foreseeable future;

(iii)      the expenses to be incurred must be reasonable.                              

124. Does the Plaintiff satisfy the above criteria?  According to the medical evidence discussed above, I find that the only medical evidence alluding to a need for a future operation is the brief comment by Dr. Shen in his medical report.  I am however unable to find if Dr. Shen, when making the said comment, had considered and evaluated the effect of the remaining screws on the future knee replacement operation.  Further, his comments appear to be quite general without showing whether he had weighed up the pros and cons of such an operation.

125. The experts also cannot assist the Plaintiff because they opined that they were unable to properly evaluate whether a future operation would be reasonably required when they had not been able to re-examine the Plaintiff after the removal of screws.

126. In the circumstances, I am unable to find sufficient evidence that a future recovery would reasonably benefit the Plaintiff’s recovery. Thus, I agree with Mr. Lam that the Plaintiff has failed to adduce sufficient medical evidence to satisfy criteria (i) and (ii).

127. As to the reasonableness of the expenses, I also agree with Mr. Lam’s submission that the Plaintiff has failed to show that the cost of $180,000 estimated by the experts is reasonable.  The said amount is calculated on the basis that the Plaintiff is going to receive the future treatments in a private sector.  An injured plaintiff can recover reasonable costs of private medical care.  However, in a case where a person receives treatments mostly in a government hospital, he will be required to prove, in my view, that he will likely receive future treatments in a private sector.

128. The Plaintiff has so far received all his medical treatments in the government hospital, and is satisfied with them.  He has not said that in the future he would prefer receiving his future treatments in the private sector.

129. For these reasons, I do not consider that the Plaintiff has succeeded in proving his claim for a separate award for future costs of medical treatment. 

130. On the medical evidence however, I am satisfied that there exists the possibility of a need for a future total replacement.  I can take into account this possibility (as I am entitled to) in assessing the award for PSLA (see Lam Kwong Ting (ibid.) at 385C)

DAMAGES

(1)  PSLA

131. The Plaintiff claims a total sum of $750,000 under this head.  Mr. Wong relies on three authorities.  Lai Chi Ming v Ng Pak Chuen& Ano. (unrep.) HCPI 1085 of 1999, Chan Yiu Ping v Mok Yuk Kwong & Ors. (unrep.) HCPI 92 of 1998 and Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306.

132. Mr. Lam contended that the Plaintiff’s injuries should be placed below the bottom end of the “serious injury” category, which category of injuries is one where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim (see Lawati Bhawani Birkram v Ting Kau Constructors Joint Venture, (unrep.) CACV 3 of 2002).

133. Relying on Lee Chun Fat v Chan Kin Wo (unrep.) HCPI 306 of 2000, Vallance Simon Neil v Lai Sze Fung(unrep.) HCPI 707 of 2003 and Phoon Ka Wai v Wong Ka Chung (unrep.) HCPI 768 of 2003, Mr. Lam asserted the appropriate award should only be $350,000.

134. In considering the Plaintiff’s injuries and disabilities, I have taken into account of the Plaintiff’s period of hospitalization, the treatments and operations he had received, his present condition and the possibility of a future total knee replacement operation as a result of degeneration. I find that the Plaintiff’s injuries can be compared to those in Lai Chi Ming (ibid) and Phoon Ka Wai (ibid.), and find that they roughly fall within the lower end of the serious injury category.  I find that an award of $500,000 is a reasonable sum, and so order.

(2)  Pre-Trial Loss of Earnings

(i)        For the period between the accident and the expiry of sick leave (8/10/2004 – 14/2/ 2006), agreed damages based on the average monthly profit of $19,804.70 (I have found) is $336,670.89.

(ii)       For the period between the expiry of sick leave and before the Plaintiff’s commencement of the alternative employment with the curtain shop in June 2006, I am inclined to allow a reasonable period of time to enable the Plaintiff to find a suitable alternative job.  I consider a period of 3 months reasonable.  Hence, I will allow a claim for total loss of earnings for this period, calculated as follows:

           (15/2/2006 – 31/5/06)

           $19,804.70 x 3.5 = $69,316.45

(iii)      Before the expiry of the sick leave for the removal of implants, the Plaintiff’s average monthly income from the alternative employment at the curtain company was $4,500.  Hence, his loss of earnings for this period is

           (1/6/2006 – 30/11/2007)

           ($19,804.70 - $4,500) x 18 = $275,484.60

(iv)      After the removal of implants, I find that the Plaintiff can either resume his pre-accident business but with a reduction of profit of $11,700 per month from 1 December 2007 until trial or suffer a loss of wages of about $11,804.70 from the alternative light duty employment.  Hence, ether jobs, the Plaintiff’s loss of earnings for this period would be around $11,750, and I so find.

           (1/12/07 – 8/5/08)

           $11,750 x 5 months and 8 days = $61,883.30

(v)       The total pre-trial loss of earnings is therefore $336,670.89 + $69,316.45 + $275,484.60 + $61,883.30 = $743,355.24.

(3)  Loss of Profit

135. In addition to the loss of earnings, the Plaintiff also claims that he has suffered loss of profit as a result of the cancellation with Yearfall of the Parkside Phase II contract.  The agreed contract sum was $1,697,897.  The Plaintiff alleged that he could have but for the accident and the subsequent cancellation earned a 25% profit of the contract sum.  Hence, he claims a loss of $424,474.25.

136. According to the Renovation Contract signed between the Plaintiff and Yearfall, the Plaintiff was paid $1,649,685.00 and $1,897,897 respectively for Phase I and Phase II renovation work. 

137. The Plaintiff said that as a result of the accident, he had agreed with Yearfall to cancel the performance of Phase II contract without paying any damages.  The Plaintiff referred to a Final Account issued by Yearfall (page 304 of the hearing bundle) as evidence of the cancellation, and the amount he had allegedly lost as a result of the cancellation.  

138. According to this document, the original contract amount is $3,506,345, and a sum of $1,583,506.80 for “variation, overtime works and material purchased” is deducted from the contract sum, which yields the total amount of $1,922,838.20.

139. The Plaintiff said that the deduction of the said sum of $1,583,506.80 in fact represented the loss from the cancellation.  He therefore submitted that had the Phase II contract not cancelled, he would have earned this sum as well.

140. I have much difficulty in understanding the basis of the Plaintiff’s claim for this item of loss, much more so in following Mr. Wong’s adoption of a 25% profit margin in calculating the alleged loss of profit as the profit and loss accounts of the Company before the accident do not bear out a profit margin of 25%.  I decline to accept this method of calculation.

141. More importantly, the Plaintiff has not adduced any evidence to support this claim.  The Plaintiff’s business is not in the nature of say, trading, which profit does not equate to one’s earnings.  The Plaintiff (as discussed in paragraph 99 above) did not share any profit in addition to any wages for the work he put into the Company.  Hence, the profit of the Company in fact was his actual earnings.

142. For these reasons, I am unable to make any award for this claim.

(4)  Future Loss of Earnings

143. According to the finding above, the multiplicand is $11,750.

144. The Plaintiff was 41 at the time of the accident, and is now almost 46.  The nature of his pre-accident’s business (apart from the actual painting work), in my judgment, should reasonably enable the Plaintiff to work beyond the age of 60. Mr. Wong submitted that the appropriate multiplier should be 12, and Mr. Lam contended for 9.  After having considered the comparables[1] and the nature of the Plaintiff’s work, I consider a multiplier of 10 is appropriate.  Hence, his future loss of earnings is calculated as: $11,750 x 10 x 12 = $1,410,000.

(5)  Loss of Earning Capacity

145. The Plaintiff claims that as a result of his residual symptoms and disabilities, he would likely suffer disadvantage in the labour market, and he further asks for an award of $96,000.

146. Mr. Lam contended that a plaintiff could only recover damages for this head of loss if he can prove that he is likely to suffer a real and substantial risk in the labour market should he lose his present employment.  Therefore, a pre-condition for such claim was that a plaintiff should be an “employee”.

147. Mr. Lam has not submitted any authority in support of this pre-condition requirement of “an employee”.  However, I agree with his submission in respect of the general principle that before a plaintiff is allowed to recover, he should demonstrate a real risk of disadvantage in the labour market.  In my view, such risk should be assessed in the context of the kind of work a plaintiff does or will likely do.

148. The Plaintiff, as I have found, will be able to continue his self-employed business by engaging a substitute worker to do work on his behalf or alternatively do some light duty job.  As either of these jobs  - which I find to be suitable for the Plaintiff  - is not labour- based, I do not find that he needs to compete in the labour market in the same way as an ordinary labourer.  In the circumstances, I am not satisfied that there is a real and substantial risk of disadvantage, and I disallow this claim.

(6)  Future Medical Treatment and Loss of Income

149. Based on the discussion above, I decline to grant a separate award under this head.

(7)  Loss at Property Sale

150. This is a rather unusual head of claim.  The Plaintiff claims a total loss of $454,000 for the sale of the Property, which he jointly owned with his wife.  According to the land search record, the Property was purchased in 1999 for $2,352,000, and was sold in May 2006 for $1,898,000.  Hence, the Plaintiff claims the difference of the resale price.

151. The Plaintiff said that the Property was purchased for investment, and for future retirement.  He had, before the Property was sold, rented it out and used the rental income to service the mortgage repayments.  However, after the accident, he discovered that the rental income was insufficient to cover the mortgage payments.  As he could not return to his pre-accident business (as the Plaintiff alleged), and only earned about $4,000 a month from the curtain shop, his financial condition was badly affected.  Hence, the Plaintiff alleged that he was forced to sell the Property, and suffered a loss. 

152. The Plaintiff further added that as he was the only contributor to the purchase and payment of the mortgage instalments, the loss was entirely his, and he was therefore entitled to the whole loss, rather than half of the total loss.

153. Before the Plaintiff sold the Property, he owned together with his wife two other properties, one at Wanchai and one at Aberdeen.  The Wanchai property at Tai Wong Tung Street was used as the Plaintiff’s residence, and the Aberdeen property was let out. 

154. According to the evidence, before the sale of the Property, the Plaintiff used part of the compensation of about $170,000 he had received in February 2006 from the government urban redevelopment to discharge the mortgage loan of the Wanchai property in March 2006. 

155. According to the Plaintiff, after paying for the monthly mortgage instalments with the rental payments he had received from the Aberdeen property, he still had a surplus of about $1,000.

156. On the other hand, the Plaintiff said that the rental payments he received from the Property had a shortfall of about $1,000 to $2,000 after paying for the monthly mortgage instalments.  The Plaintiff alleged that he had to pay an extra of about $1,000 out of pocket, and was therefore forced to sell it after he ceased his business.

(i)    Discussion

157. For any loss to be recoverable, the loss has to be “reasonably foreseeable” (see The Wagon Mound [1961] AC388 at 426).  In other words, whether the loss from the resale of the Property was reasonably foreseeable.

158. The Plaintiff’s reason of selling the Property in May 2006 was allegedly due to his financial difficulty after the accident.  The evidence however does not show that the Plaintiff had financial problem.

159. According to the Plaintiff’s evidence, after the accident, his financial situation was not in such a state, which justified the sale of the Property.  He received a lump sum compensation of $652,162 from the government for his Wanchai property as a result of the government’s urban redevelopment.  He received the first sum of compensation of $326,000 in December 2005, and the second sum of $326,162 in February 2006.  He had in fact used part of the second sum of payment to discharge the mortgage loan of the Wanchai property in March 2006.

160. After discharging the mortgage loan, the Plaintiff should still have about $480,000 left.  When Mr. Lam asked him to account for the use of the remaining balance of the compensation, the Plaintiff said that he had used it to repay his friends and relatives for the money he had borrowed from them.

161. Towards the end of the cross-examination in relation to this part of evidence, the Plaintiff agreed that he had not been forced to sell the Property.

162. In my view, the Plaintiff’s concession is a clear admission that it was not necessary for him to sell the Property at the time.  As a matter of fact, according to the evidence, the Property was almost, though not entirely, financed by the rental repayments. 

163. The evidence makes it quite difficult to resist Mr. Lam’s contention that the decision to sell was a purely investment decision.  I am unable to resist such an inference and accept Mr. Lam’s contention that the decision was more likely to be for investment rather than as a result of the accident.

164. To conclude, I find the evidence wholly insufficient to support any nexus between the accident and the Plaintiff’s decision to sell the Property, and further that the alleged loss is far too remote to sound in damages.

165. I decline to grant any award for this claim.

(8)  Special Damages

166. The total pre-trial special damages of $36,291.90 are agreed.

SUMMARY OF AWARDS

(1)	PSLA	$500,000.00
(2)	Pre-trial loss of earnings	$743,355.24
(3)	Pre-trial loss of profit	$0
(4)	Future loss of earnings	$1,410,000.00
(5)	Loss of earning capacity	$0
(6)	Future medical treatment & loss of income	$0
(7)	Loss at property sale	$0
(8)	Special damages	$36,291.90
	Total	$2,689,647.14

INTERESTS

167. I further award interest on general damages for PSLA at 2% per annum from the date of writ (23 January 2007) to the date of judgment and on pre-trial special damages at half of the judgment rate from the date of the accident (8 October 2004) to the date of judgment.

CONCLUSION

168. I enter judgment for the said sum of $2,689,647.14 together with interests calculated in accordance with paragraph 167 above.

169. I further grant a costs order nisi that the Plaintiff shall have the costs of the assessment, with certificate for counsel, to be taxed if not agreed.

[1] Mr. Wong referred to Li Wan Kei v Hyundai Engineering & Construction Co Ltd (unrep) HCPI 577 of 2004 and Chan Fu Man v Lam Fook Loi & Ano.  (unrep) HCPI 962 of 2004.  In both these cases, the courts adopted a multiplier of 10 for respectively a 47-year-old general construction worker and a 50-year-old forklift truck operator.  Mr. Lam relied on Lau Tuen Ping v Law Wai Kwong [2003] HKLRD 446 and Tsang Hing Yuen (ibid.), in which a multiplier of 9 was adopted for respectively a 45-year-old demolition worker and a 46-year-old carpenter.