LAW YAU KEUNG v. CHU SAI CHUEN

HCPI 846/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 846 OF 2011

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BETWEEN

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ASSESSMENT OF DAMAGES

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1.  The plaintiff claims against the defendant for damages arising from personal injuries he suffered from a traffic accident on 15 December 2008.  Liability has been admitted and interlocutory judgment entered against the defendant for damages to be assessed.  The assessment is before me today.

2.  According to the Revised Statement of Damages, the plaintiff claims PSLA at $400,000.  The amount has been reduced by his counsel Mr Cheung to a sum between $180,000 and $200,000 at the opening. The plaintiff claim his pre-trial loss of earning at $810,000 (as modified by Mr Cheung) adopting a monthly income of $15,000.  The plaintiff claims that he cannot return to work as a taxi driver and could not find another suitable job.  He further claims 1 years’ salary for his loss of future earnings.  He also claims $90,000 as loss of earning capacity and other special damages.

3.  The main issue in dispute is the seriousness of the injury of the plaintiff.  A joint orthopaedic expert report and a joint psychiatric expert report commenting on his injuries are produced by order of PI Master without calling the makers, and I shall come to them later.  An investigation report and surveillance video about the activity of the plaintiff have been admitted as evidence by agreement. 

4.  The plaintiff is the only factual witness and he adopts his witness statement dated 18 June 2012 as his evidence in chief.

5.  According to his witness statement, in the afternoon of 15 December 2008, he was driving a taxi, registration number KB6014 (“the taxi”) along the 2^nd lane counting from the left of Wang Kwong Road towards Kowloon Bay direction.  He was about to turn right into Kai Cheung Road towards To Kwa Wan direction.

6.  As he had to turn right, he put on the right turn signal and at the same time he looked at the right side rear mirror.  He noticed a private vehicle registration number LF1753 (“LF1753”) was travelling on the 3^rd lane counting from the left of Wang Kwong Road.  It is not disputed that LF1753 was driven by the defendant.  According to a sketch produced, vehicles on the 3^rd lane must turn right into Kai Cheung Road.

7.  When the plaintiff began to turn his taxi into Kai Cheung Road, he maintained his observation of traffic from the right rear mirror.  He noticed that LF1753 had not turned right and continued to travel forward, and rammed into the right side of the taxi.  The front left part of LF1753 collided with the right rear part of the taxi and the plaintiff stopped his taxi.  He alighted to check the damage and found that the front left part of LF1753 dented the right door and the right rear wing of the taxi. At that time he felt serious pain in his neck and chest and he was unable to move.

8.  Mr Lim, counsel for the defendant cross examined the plaintiff on the accident.  The plaintiff agrees with Mr Lim that the damage is not serious.  But when Mr Lim suggests that the dent is not noticeable from the photograph, he disagreed.

9.  The plaintiff agrees that before the accident, his taxi was travelling at about 25 km/hr.  During cross examination, he said LF1753 was very close.  He was wrapped by the safety belt and on seeing LF1753 approaching, he turned to his left and stretched his neck.  The plaintiff took out 2 model cars and explains that LF1753 has rammed into his taxi in a perpendicular direction.  He said the collision is life threatening.

10.  The plaintiff was taken to United Christian Hospital (“UCH”) after the accident to receive treatment.  The plaintiff said he suffered from neck and chest injuries after the accident. After examination by the doctor of UCH, he was diagnosed to have tenderness over his cervical spine and sternum.  X-ray examination revealed that there was no bone fracture of his neck or sternum.  He stayed in UCH overnight for observation, and was given analgesics.  The plaintiff said he had consistent pain over his neck and the numbness in his right upper limb became more serious.

11.  On 16 December 2008, he was referred to the department of orthopaedic and traumatology of UCH for further management. X-ray examination showed that there were degenerative changes over C5/6/7 cervical vertebrae.  He was given analgesics and received physiotherapy and was discharged on 17 December 2008.

12.  The plaintiff said the problem of neck pain persisted and he re-attended the Accident and Emergency Department (“AED”) of UCH on 31 December 2008 for medical treatment.  On 11 January 2009, he sought treatment from the AED of Queen Elizabeth Hospital (“QEH”) for neck pain.  From 14 January 2009 to 29 September 2009, the plaintiff attended follow up treatments at the outpatient clinic of UCH on various occasions.

13.  On 30 January 2009, the plaintiff also attended the AED of Princess Margaret Hospital (“PMH”) for neck pain.  His condition did not improve and he re-attended the AED of PMH for neck pain on various occasions.  He was referred to the physiotherapy department of PMH for treatment.  He had 27 sessions of physiotherapy treatment at PMH from 11 September 2009 to 3 March 2010.

14.  On cross examination, the plaintiff said it is painful to turn his neck and he has to turn his body instead.  And before the accident, he can turn his neck freely.  Mr refers to the record of QEH on 11 January 2009 when the doctor said the plaintiff had normal range of movement without local tenderness.  The plaintiff maintains that he could not move his neck without pain.

15.  Mr Lim refers to the record of PMH for the treatment on 30 January 2009.  It is written “ROM full” and Mr Lim suggests that the doctor considered the plaintiff had full range of motion.  The plaintiff disagreed and said when he turned to left, he had a stretching feeling.  He could not have full motion.

16.  Mr Lim again refers to the record of PMH on 6 February 2009, when it is again marked by the treating doctor that the plaintiff has “ROM of neck full”.  The plaintiff agrees that the doctor asked him to turn his head to left and right.  But he said if his neck had no problem, he would not have pain.  He would disagree with the record if he was told about the record.

17.  Another record from PMH on plaintiff’s examination on 13 April 2009 was quoted.  It was “AROM of neck full”, which means the active range of motion of neck is full.  The plaintiff recalls being asked to turn his neck by him.  But he disagrees with the conclusion of doctor.

18.  The plaintiff said his neck pain persisted.  And on 13 August 2009, he was admitted to AED of PMH and he told the doctor that he had attempted to commit suicide by jumping from height but was in vain.  He complained of insomnia because of the neck pain.  He received treatment in PMH and was referred to have psychiatric assessment and was diagnosed to have post traumatic stress disorder (“PTSD”).  He was arranged to have further treatment at West Kowloon Psychiatric Centre ("WKPC").  He received treatment for psychiatric problem.

19.  On this visit, the plaintiff also complained of erectile dysfunction and he was referred to the urology department for investigation.  He was discharged on 14 August 2009.

20.  On 18 September 2009 and 16 October 2009, he attended the Tung Chung General Outpatient Clinic (“TCGOC”) for treatment for his psychiatric problem.  He was diagnosed as having PTSD and was referred to have regular treatment at WKPC.  He complained of low mood, lack of energy, poor memory and concentration after the accident.

21.  On cross examination, the plaintiff agrees that his wife has depression.  He does not agree that her illness make him stressful.  He believes she was stressful because he had no income.

22.  He also agrees that his wife had cancer and received treatment by operation and chemotherapy.  He disagrees that he became tired because of his wife illness.

23.  He agrees with Mr Lim that his sons had credit card loans.  As he could not work, he asked his sons to borrow money from credit card company to help him with his living and medical expenses.  But he denies that he had informed his treating doctor or nurse about these loans.

24.  After the surveillance tapes are played in court, Mr Lim points out to the plaintiff that he could turn his head on a number of occasions.  The plaintiff said he could turn his head a little bit as shown but he felt painful.

25.  On cross-examination the plaintiff said he could only walk a few minutes and he would feel tired.  It was put to him that he could walk more than 10 minutes in the video.

26.  And in a video taken on 22 December 2010, he was seen walking at a faster pace.  The plaintiff explains he rested well the previous night.

27.  On his income, the plaintiff said he was a self-employed taxi driver before the accident.  He would work 12 hours a day and 28 days a month.  His monthly earning is about $15,000.  No documentary proof on the daily earning of the plaintiff has been produced.  Mr Lim put to the plaintiff that he does not earn $15,000 a month which the plaintiff disagrees.

28.  He said he had low education and he worked as manual labour  in the past.  Because of the neck pain and numbness, he cannot carry heavy object.  He could not handle work with required heavy physical demand.

29.  After expiry of the sick leave, he registered with the Labour Department to find jobs like security guard, catering assistant.  Nevertheless, employers considered he was old with low education level and he was not given a job offer. 

30.  That is the evidence of the plaintiff.

31.  A joint orthopaedic report was prepared by Dr. Peter Lung and Dr Chun Siu Yeung.  As recorded in the report, the plaintiff said he still suffers from neck pain and upper limbs numbness.  The neck pain is felt in the back of the neck and proximal trapezius region.  It is persistent and severe.  The plaintiff rated the numeric pain score to be 9 out of 10 and decreased to 7 out of 10 after taking analgesics.  The pain is not completely relieved by medication and he needs analgesics every 4 hours.  The pain affects his sleep, almost 6 nights per week.

32.  His exercise level on level ground, walking, is poor.  He can walk up to 3 to 4 minutes.  His sitting tolerance is also poor, which is 10 minutes.  His standing tolerance is 20 minutes.

33.  The plaintiff also feels bilateral upper limb ‘numbness’, meaning reduction of sensation, soreness and ache and weakness.  It is more severe when he lies down.

34.  According to Dr Lung, the plaintiff suffered from soft tissue injury in cervical spine region with partial recovery.  There is no significant neurologic deficit and sign of discs prolapsed. There is pre-existing mild cervical spine degeneration.  Dr Lung noted that the plaintiff is also suffering from PTSD and psychotic depression, as diagnosed by psychiatrist.

35.  Dr Lung opines that the road traffic accident has caused the soft tissue injury and now the plaintiff is suffering from the residual neck pain.  However, the residual numbness, upper limb power and sensation reduction cannot be explained by the soft tissue injury, or nerve compression by disc prolapsed.  He cannot offer any explanation to the present pattern.  Dr Lung suggests that the plaintiff is suffering from psychotic depression, psychiatric patients sometimes present with symptoms that are not anatomically correct.

36.  Dr Lung also said that the residual pain was so intense and his neck stiffness is so marked, it is disproportionally severe.  The limb numbness does not correspond to any nerve injury patterns.  There are signs of exaggeration.  But he considers psychiatric disease as another possible cause of this kind of behaviour.

Dr Chun agreed that the plaintiff suffered from minor soft tissue sprain of the neck on the right side with the right trapezius muscle with no neurological deficit.  He commented that the injury, if any, should be insignificant.  With reference to the clinic notes, he is of the opinion that the plaintiff's symptom of right upper limb numbness recorded in some notes as against other attendance notes of having no upper limb numbness or weakness was inconsistent, and cannot be explained on structural or physiological basis.

37.  Dr Chun is of the opinion that the plaintiff has exaggerated his deficit.  On the plaintiff's complaints of continuous neck pain, upper limbs symptoms and weakness, and his failure to perform simple preliminary testing such as heel walk, tiptoe walk during the examination, he opines that these clinical presentation were out of proportion to the minor initial injury but grossly exaggerated.

38.  Dr Chun also comments that at the joint examination, there was no indication that the plaintiff was in constant severe pain.  He also remarks that the marked limitation of neck movement as claimed by the plaintiff is inconsistent with the medical notes which records ROM (range of movement) full on many occasions.

39.  A quick summary of the orthopaedic evidence, both experts agrees that the deficit of the plaintiff could not be explained.  Dr Lung suggests that may be due to psychiatric illness.  I note he does not form any view on psychiatric illness, and he is not the psychiatric expert.

40.  I now move on to the psychiatric experts' opinion.

41.  A report dated 19 September 2011 and a supplemental report dated 2 April 2012 were prepared by Dr Lee Wing King and Dr Kieran Singer, the psychiatrist nominated by the parties.

42.  It is recorded that the plaintiff complained that he had impairment of sleep associated with neck pain 10 odd days after the accident.  He also had nightmares – of driving and walking on street and being hit by cars.  They occurred 4 to 5 nights a week initially.

43.  The plaintiff had flashbacks of the accident especially when he saw ambulances, went out or crossed the road, associated with palpitations, sweating, dragging pain in low back.

44.  The plaintiff did not try to drive taxis, because he feared doing so.  He had fear of taking taxis, of sitting in front row of bus.  He travelled by MTR.

45.  A few months after the accident, he tried to have sex and found he had erectile dysfunction.

46.  From day one, he felt depressed because of the neck pain.  The depression got worse in 2009.  In August 2009, he thought of jumping from height because of impairment of sleep, nightmares, rumination over the accident.  He attempted suicide three times, the last in 2010.

47.  He still complained of persistent severe neck pain.  He had nightmares of the accident 4-5 times a night.  He had flashbacks of the accident 4-5 times a day.  He had thoughts of using a knife to stab his son and imagery of blood spurting out, but another self tells him this is his son and he should not do it.

48.  The opinion of the experts on the psychiatric illness of the plaintiff is much diverted.

49.  Dr Singer agrees that the plaintiff suffers certain degree of PTSD.  He explains that PTSD is a psychiatric disorder following exposure to traumatic event/s of an exceptionally threatening or catastrophic nature.  It is characterized by re-experiencing the event, fear and avoidance of stimuli which remind of the trauma, numbing of emotional responsiveness and symptoms of increased arousal.  The reliability of the diagnoses depends partly on subject's complaints which depend on his credibility.

50.  The subject of the traumatic event is the collision.  The plaintiff cannot tell when pressed how damaged his taxi was, only that it was moderately dented.  His complaint of erectile dysfunction could be caused by anxiety and/or depression associated with the PTSD.

51.  Dr Singer refers to the comment of Dr. Lung that some of the plaintiff's complaint may be accounted for by psychotic depression.  Dr Singer disagrees and said his discrepancy cannot be accounted for by his depression or other psychiatric disorder.  His exaggeration of his physical complaints casts doubt on his credibility concerning his psychiatric complaints.

52.  Dr Singer observed that there was absence of anxiety when talking of the accident in the examination, which is inconsistent with his complaints of fear of cues that remind him of the accident, e.g. report of traffic accident, driving taxis, sitting in cars.

53.  The mildness of his PTSD symptoms is indicated by the fact that he did not seek psychiatric treatment till February 2010.  He did not seek psychiatric treatment for PTSD symptoms after he was discharged from hospital after attempted suicide in 2009.

54.  In conclusion, Dr Singer said there is a core of genuine complaints but also a significant element of exaggeration. The PTSD is mild in degree and not moderate to severe according to plaintiff's account.

55.  Dr Lee commented that the compatible symptoms for PTSD include exposure to a stressful event of exceptionally threatening and potentially life-threatening nature, referring to the collision.  The plaintiff has persistent remembering of the captioned traffic accident in intrusive flashbacks, recurrent nightmare of driving and walking on street, fear and avoidance of circumstances resembling or associated with the accident. Inability to recall some aspects of the period of the traffic accident in support this symptom is evidenced by the fact that the plaintiff could not tell when pressed during the present examination how damaged his car was.

56.  Dr Lee found the plaintiff had severe depressive episode with mood-congruent psychotic symptoms.

57.  Dr Lee also commented that depression has been increasingly recognized as a systemic illness with a wide variety of emotional and physical signs and symptoms.  Patients with depression frequency presents with a wide variety of physical complaints including painful physical symptoms, sex dysfunction, joint or limb pain.  The complaints of the plaintiff can be understood in the context of psychical symptoms of severe depression.

58.  He agrees the observation of Dr Singer that the anxiety features were not prominent when the plaintiff talked of the accident in the present examination.  But he accounts the observation by suggesting that the plaintiff may have improved with treatment by various doctors.

59.  Dr Lee found that the plaintiff suffers from severe PTSD, and severe depression with mood-congruent psychotic symptoms.

60.  The report also recorded the disagreement of the experts and their respective reasons in support.  This greatly assisted this Court and is what should be expected from the experts when their attendance is dispensed with.

61.  Dr Singer responded and said there is lack of evidence that the accident was catastrophic or exceptionally threatening as required for the diagnosis of PTSD.  Dr Lee responded saying that the perception of the specific significance of the event to individual patient is the gist of clinical relevance for the development of PTSD.

62.  Those are the medical evidence and I would analyse further hereinafter.

63.  In the final submission, Mr Lim submitted that the plaintiff is not a reliable witness.  He referred to the statement of PC 53244 which stated that it was noticed that the right rear wing had scratches and was dented (右後尾沙板位置花凹) and for LF1753, the left front wing had scratches and was dented (左頭尾沙板位置花凹).  The photographs do not show serious damage to the taxi or the car.  It shows that the damage is minor.

64.  It is interesting to note that, according to the evidence of plaintiff, he observed the approach of LF1753 from the rear mirror of his taxi while he was turning.  And in the court, he demonstrated the approach of LF1753 from a perpendicular position.  This is in conflict with a sketch prepared by the police and signed by the plaintiff which shows that the two vehicles collided as a slight angle. 

65.  And when he explained in court under cross-examination that he was bound by the safety belt, on seeing LF1753 approaching, he has no alternative but turn to his left and stretched his neck, such an important information has not been provided in his witness statement.  I agreed with Mr Lim that the plaintiff has exaggerated on the happening of the accident. 

66.  In summary, I found the plaintiff not a credible witness.  I agree with Mr Lim that the plaintiff exaggerated the seriousness of collision. 

67.  The finding of the causation and the seriousness of the injury is always the duty of the judicial officer in charge of the hearing.  Nevertheless, the medical expert evidence would greatly assist the court.  I should now turn on to the orthopaedic expert opinion.

68.  Reading Dr Chun’s opinion, while he is of the view that the plaintiff had exaggerated on his injury, he does not rule out that he has suffered from minor soft tissue sprain.  Dr Lung also found that the plaintiff’s condition was soft tissue injury in the cervical spine with partial recovery.

69.  It is the complaint of the plaintiff to the orthopaedic expert that he still felt neck pain and upper limb numbness. It is important to note that Dr Lung opined that while the accident caused soft tissue injury and the plaintiff suffered from the residual pain, but the residual numbness, reduced upper limb power and sensation cannot be explained by soft tissue injury.  The pattern of reduced power and sensation cannot be explained by nerve compression by disc prolapse.  It is said that the residual pain was so intense and his neck stiffness so marked that these are disproportionally severed.  The limb numbness does not correspond to any nerve injury pattern.  It is suggested that psychiatric illness is one but not only cause of this type of behavior.  He could not rule out exaggeration.

70.  Dr Chun is of the view that the clinical presentation was grossly exaggerated and out of proportion to the minor initial injury.  He also notes that during the joint examination, there is no sign of constant pain.  Dr Lung raised no disagreement. 

71.  Dr Chun also commented that the erectile dysfunction cannot be caused by the traffic accident.  The marked limitation of neck movement was inconsistent with the medical notes of various clinic when it was recorded that range of movement was full on more than one occasion.  Mr Lim has taken us through a number of the clinic notes in Court. I see no reason to doubt the integrity of the treating doctor and their record.  The plaintiff could not offer any explanation to why these remarks are recorded, on more than one occasion and by more than one doctor.

72.  What is more telling must be the record of the treating clinic.  He visited the AED of various hospitals.  These comments are by various doctors from different hospital.  Test was done and there are repeated records of full range of neck movement.  There is no reason to doubt the correctness of these records. 

73.  Pausing here, the orthopedic expert opinion is not assisting the plaintiff’s case of his severe pain, limitation on neck movement, and numbness to his upper limbs.  His pain and neck stiffness that is so severe could not be explained orthopaedically. 

74.  I now turn to the two psychiatrists’ report.  As mentioned above, they have different conclusion.  And I have set out above their argument in support and their respective conclusion.

75.  The first difference in their view is whether there was present to the plaintiff a traumatic event leading to PTSD. Dr Singer pointed out that when pressed, the plaintiff could not remember how serious his car was damaged.  It appears that the plaintiff is evasive to his examiner.  This will support the observation of Dr Singer that the plaintiff exaggerated his injury.  Dr Lee is of the view that the feeling of life threatening is a subjective rather than objective finding.  That would depend on credibility of the plaintiff.   He also opines that loss of memory could be a symptom of PTSD.

76.  And what both psychiatrists notice during the examination is, anxiety features are not prominent from the plaintiff when he was questioned on the event.  Dr Singer opines that it is inconsistent with the plaintiff’s complaints.  Dr Lee explains that he may have improved after treatment.  But if so, I would expect Dr Lee to explain why he maintains that the plaintiff has severe depression problem and how that would reflect on his current mental condition.

77.  Mr Cheung submits that Dr Singer had made a mistake in saying that the plaintiff only seeks psychiatric treatment in 2010 while he has sought psychiatric treatment in August 2009.  I bear that in mind in my assessment of the reliability of Dr Singer’s evidence.  I believe Dr Singer is referring to the report from WKPC when plaintiff first received treatment in February 2010.  In fact, according to the medical record, the plaintiff complained of mental problem to PMH and TCGOC.  Both refer him to WKPC for treatment.  I do not believe it affect the assessment by Dr Singer.

78.  On the collision, the objective facts remain that it is a mild collision as I analysed earlier.  And it is the evidence of the plaintiff that after the accident he alighted from the taxi to check the damage.  If he had a strong feeling from the collision, then he must have a marked memory of the damage to the vehicle which he checked when he alighted. Or as suggested by Dr Singer, he would have observed the damage when he returned the taxi to the owner or when he repaired the taxi.  Taking all into account, I agree with Dr Singer on his assessment on the credibility of the plaintiff in raising his complaint.  I do accept the opinion of Dr Lee that the plaintiff may subjectively think that was a life threatening event.  Dr Lee has not explained how he comes to the conclusion.

79.  Pausing here, I should also refer to the surveillance report produced.  While Mr Lim recalled in his closing submission a number of times when he suggested the plaintiff has lowered his head or turned his head, as observed from the video.  But from the video, the degree of turn is small to moderate.  At best, there is no sign that the plaintiff is painful when he is moving in the street, or having tea in the restaurant with 2 ladies.   And he could walk for more than 10 minutes.  He performed much better than he claimed.  He explained that he could walk as appear because he rested well the preceding day was not too much of co-incident.  It again cast doubt on the complaint of pain by the plaintiff.  I found that the plaintiff’s account of his severe pain and neck stiffness unbelievable.

80.  In conclusion, I find that the plaintiff suffered soft tissue injury.  I rely on the evidence of Dr Chun, Dr Lung and Dr Singer.  I do not adopt the opinion of Dr Lee.  I find the plaintiff suffered from mild soft tissue injury and after the accident, he had suffered from mild PTSD.

81.  I should now move on to the individual claim of damages by the plaintiff.  I start with pain, suffering and loss of amenities.  The plaintiff originally seeks an award of $400,000 in the revised statement of damages.  In the opening submission, Mr Cheung suggested it should be between $180,000 and $200,000.  And in his closing submission, he revised to $200,000 to $250,000.  Given my finding above, the plaintiff only suffered from soft tissue injury.  His recovery is more complicated as he suffered mild PTSD.  Mr Lim suggested $100,000 which I believed is on the low side.  With the above finding, and having considered the cases refer to me by both Mr Lim and Mr Cheung, I find that the award for PSLA should be $150,000.

82.  The plaintiff have produced sick leave certificate up to 10 November 2009.  It is the case of the plaintiff that because of the injury, he could not return to work as a taxi driver.  He was 59 at the time of the accident and he is now 64.

83.  Dr Lung is of the view that with the sub-optimal sitting, standing and walking tolerance of the plaintiff after treatment, he could not return to his original occupation as a taxi driver in the near future.  Given the low education of the plaintiff and his age, he has not given any suggestion of suitable occupation for the plaintiff.  Clearly, Dr Lung’s opinion is based on the alleged neck pain and upper limb numbness of the plaintiff which could not be proved.  I do not accept his opinion that the plaintiff could not return to work as a taxi driver.

84.  Dr Chun is of the opinion that the plaintiff is able to resume to his pre-injury work as taxi driving without difficulties.

85.  And Dr Singer opines that the plaintiff could return to his pre-accident job as taxi driver, security guard, odd job person with mild distress and inefficiency.

86.  I found that the plaintiff could return to work as a taxi driver and the next question is when he could return to work.

87.  It is not disputed that in assessing the reasonable period of loss of earnings, sick leave certificate is just one piece of evidence.  If the findings are that the plaintiff could have return to work in a shorter period, that is the period that is relevant to the assessment of pre-trial loss of earnings and no other (per CACV 208/2007).

88.  On sick leave, even Dr Lung opined that sick leave should not exceed 6 months.  Dr Chun opined that reasonable sick leave is 4 weeks.

89.  As the plaintiff is self-employed, the sick leave is indeed the period before he could return to work.  But the period of absence from work must be considered together with the PTSD injury as I found mild PTSD.

90.  According to the opinion of Dr Singer, the reasonable period of sick leave is nil.  He also opined that the plaintiff should receive intensive psychiatric treatment in the form of medication and psychotherapy. He would need 8 sessions at intervals of 2 weeks on average.  He agrees that the plaintiff needs sick leave for the half-days when he attended treatment. 

91.  I believed some period of sick leave has to be granted to the plaintiff for him to complete his treatment his psychological defects, and return to work.  I bear in mind that the plaintiff is a taxi driver and he should be fully recovered before he drives, as the safety of his passengers is in his hands.  Taking all these into account, a period of 10 months loss of earnings should be awarded for his pre-trial loss of earnings.

92.  Apart from the oral evidence of the plaintiff, there is no evidence as to his earnings before the accident.  Nothing like the tax return or MPF record, or bank record have been produced.  At the closing, Mr Cheung relied on a letter issued by the Transport Department dated 10 September 2012, produced by the defendant, which indicated that the average monthly income of a taxi driver between 2008 to 2010 was $18,400.  But that is the monthly average earning per taxi.  As the plaintiff only works one shift, according to this analysis by the government, his earnings would be in the region of $9,000.

93.  I do not have to go any further into the evidence of the plaintiff on his earnings as there is nothing except his oral evidence.  He is not a credible witness. And the best I could assess, as suggested by Mr Lim is to adopt the average earning of a driver working one shift at $9,000 per month.  Accordingly, his pre-trial loss of earning would be $90,000 ($9,000 x 10).  There would be no post-trial loss of earnings as he should be able to return to work after the sick leave.

94.  For special damages, the parties have limited agreement.  I refer to paragraph 27 of Mr Cheung’s closing submission. For future medical expenses, travel expenses and tonic food, I would bear in mind the comment of Dr Singer of the treatment required.  I would allow the claim of $20,000 for future medical treatment as assessed by Dr Singer.  I would allow $800 for future travelling expenses to attend the treatment and nil for future tonic food.

95.  Medicine and plaster at $334.60 and taxi detention and rental loss at $1,235 are agreed.  On the pre-trial medical expenses, the plaintiff claimed $9,005.  These include his medical treatment up to 2012. As I ruled earlier, he should have fully recovered 10 months from accident. Accordingly, I will take a broad bush approach to allow $3,000 as his pre-trial medical expenses.  Likewise, I would allow $1,500 for his pre-trial travelling expenses, and $3,000 for tonic food.

96.  The plaintiff also claims loss of earning capacity.  With my finding that the plaintiff could return to his work, I am not prepared to give any award.

97.  In summary, my award was as follows: -

a. PSLA	$150,000
b. Pre-trial loss of earnings	$90,000
c. Post-trial loss of earnings	nil
d. Loss of earning capacity	nil
e. Special damages	$29,869.60

98.  I award to the plaintiff the total sum of $269,869.60, with interest on general damages at 2% p.a. from the date of service of the Writ to the date of this assessment, and interest on special damages at half judgment rate from the date of the accident to the date of this assessment.

99.  Finally, on costs, the plaintiff should be entitled to his costs with certificate for counsel, and to be taxed if not agreed at District Court scale.  Plaintiff’s own costs shall be taxed according to Legal Aid Regulations.  An order nisi is given to become absolute within 14 days. 

100.  Finally, I thank both counsels for their able assistance in this case.