Hung Sau Fung v. Lai Ping Wai and Another

CACV 240/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2011

(ON APPEAL FROM HCPI 204 OF 2009)

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BETWEEN

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JUDGMENT
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Hon Cheung CJHC:

1.I agree with the judgment of Chu JA.

Hon Lam VP:

2.I agree.

Hon Chu JA:

A.  An overview

3.This is the plaintiff’s appeal against the judgment of Bharwaney J (“the Judge”) awarding HK$1,128,419.40 (before deduction of the employees compensation award of HK$304,000) as damages for personal injuries sustained by him while working for the defendants.  The defendants did not contest liability at the trial.  The issue before the Judge as well as in this appeal is on quantum only. 

4.The plaintiff was a vehicle mechanic apprentice employed by the defendants.  On 30 June 2007, when he was assisting in the transport of a metal drum containing more than 200 litres of engine cleaning oil, the drum fell and crushed his right foot, resulting in what the Judge described as an excruciatingly painful injury.

5.The plaintiff was found to have sustained fractures of the right big toe with displacement and fracture of the 2^nd and 3^rd toes at the proximal phalanx with subluxation.  On 4 July 2007, he had an operation for close reduction and k-wire fixation of the right big toe and 2^nd toe and 3^rd toe factures.  On 13 October 2007, he had another operation for the removal of the k-wires.  He was given sick leave up to 7 April 2009.

6.The Judge’s award of HK$1,128,419.40 comprises the following heads of damages:

	Heads of damages	Amount (HK$)
1.	Pain, suffering and loss of amenities (PSLA)	400,000.00
2.	Pre-trial loss of earnings and MPF	183,881.00
3.	Pre-trial medical expenses	271,786.00
4.	Travelling expenses	5,368.40
5.	Value of the plaintiff’s mother’s service	12,000.00
6.	Travelling expenses of plaintiff’s mother	904.00
7.	Cost of hiring a wheelchair (agreed)	480.00
8.	Tonic food (agreed)	1,000.00
9.	Future loss of earnings and MPF	95,000.00
10.	Loss of earning capacity	50,000.00
11.	Future cost of analgesics	108,000.00

7.The plaintiff’s appeal relates to the Judge’s assessment of: (1) PSLA; (2) the plaintiffs’ pre-trial loss of earnings; (3) the plaintiff’s future loss of earnings; and (4) the value of the plaintiff’s mother’s service for the six months after the accident and her travelling expenses. The challenge made to the Judge’s award on loss of earning capacity and pre-trial medical expenses and travelling expenses in paragraphs 5 and 13 of the Reply and Further Submissions of Mr Tang, who appeared for the plaintiff, was not pursued.  

8.The thrust of the plaintiff’s appeal against the assessments on PSLA and pre-trial loss of earnings is that: (1) the Judge erred in finding the issue of muscle wasting had resolved by March 2009, and the plaintiff had reached maximum medical improvement (MMI) by March 2009; and (2) the plaintiff had adopted an abnormal sick role which was not caused by the accident.[1]

9.On the award for future loss of earnings, the plaintiff’s complaint is that the Judge erred in finding the plaintiff would suffer post-trial loss of earnings for seven years only.[2]  The appeal against the deduction made to the award for loss of future earnings by reason of “accelerated receipt”[3] was abandoned.

10.As for the award for the care and services of the plaintiff’s mother in the first six months after the accident, the plaintiff says that the amount is unreasonably low and the Judge had not explained the basis for his assessment.[4] The plaintiff also complains that the Judge had not made an award for the travelling expenses incurred by the mother for travelling from between office and home to prepare meals for the plaintiff after his discharge from hospital during the period when he was immobilised.[5] 

B.  The plaintiff’s education and employment background

11.The plaintiff was 29 years old at the time of the accident.  After competing Form 5, he took a programme in commercial studies, followed by a Craft Foundation Course in Electronics.  He also took the Youth Pre-Employment Training Programme on internet and computer skills and a workplace training course. 

12.The plaintiff took up employment at the age of 23, and had worked in several trades.  He had worked as a clerk, a quality assurance inspector, electronic appliances product engineer, and computer repair and maintenance technician.  He had a passion for remote control cars and wanted to work as a vehicle mechanic.  He later obtained a driving licence.  Through the Labour Department’s assistance, he came to be employed as a full-time vehicle repair and maintenance apprentice at the defendants’ garage from 10 May 2007 at a monthly salary of HK$4,500.  Unfortunately, less than two months into the employment, he met with the accident in question.  

C.  Medical treatment received by the plaintiff

13.Immediately after the accident, the plaintiff was taken to the Accident and Emergency Department of Ruttonjee and Tang Shiu Kin Hospitals, and later transferred to the orthopaedics ward of Pamela Youde Nethersole Eastern Hospital with a surgery scheduled for 3 July 2007.  The plaintiff discharged himself from the hospital to seek private treatment from Dr James Kong as he was covered by a medical insurance policy taken out by his mother. He underwent an operation for close reduction and k-wire fixation at Hong Kong Sanatorium Hospital and was discharged home on 9 July 2007.   

14.Thereafter, the plaintiff attended follow-up treatment at Dr Kong’s clinic until May 2008.  From June 2008 until April 2009, the plaintiff received treatment from another orthopaedic surgeon, Dr Eric Chien.  On the last appointment on 3 April 2009, Dr Chien recorded that the plaintiff seemed to be reaching MMI.  The plaintiff did not consult any other orthopaedic surgeon after this. 

15.The plaintiff began to receive physiotherapy treatment after the removal of the k-wires.  Between October 2007 and April 2008, he attended 69 physiotherapy sessions with Ms Isabella Lit of Atech Health Specialists Ltd.  From 30 April to December 2008, the plaintiff received 32 physiotherapy treatment sessions at Albert Hui Manipulative Rehabilitation Centre.  He received a further 59 sessions of treatment from the same centre between December 2008 and April 2010.  This was followed by weekly treatment for pain control that lasted until January 2011.  Mr Albert Hui in his report concluded that physiotherapy treatment had reached its full potential and the plaintiff was not expected to improve or deteriorate.  

16.The plaintiff also underwent occupational therapy.  There was, firstly, seven sessions with Ms Louise Leung of Canadian Asian Neck and Back Institute in the period between February and March 2008.  As from April 2008, the plaintiff attended occupational therapy sessions with Mr Thomas Chan, for two sessions a week for six months, followed by weekly sessions for another two months.  Beginning from January 2009, the plaintiff attended Queen Mary Hospital and received 25 occupational therapy treatment sessions until December 2009.  The reports from Mr Chan and Queen Mary Hospital reveal that the plaintiff had made no progress.  Instead, his condition had since February or March 2008 deteriorated significantly, and the Judge had observed there was no discernable reason for it.[6]   

17.The plaintiff also consulted pain specialist.  On Dr Chien’s referral, he began seeing Dr Carina Li of the Hong Kong Sanatorium Hospital on 8 November 2008 and received intensive multi-disciplinary pain management up to 2011.  The plaintiff continued with the physiotherapy and occupational therapy and pain specialist treatment even after he ceased to consult orthopaedic surgeon.

18.Between 10 October and November 2008, the plaintiff received psychiatric treatment from Dr David Lau of St Paul’s Hospital, who diagnosed him of suffering from post-traumatic stress disorder (PTSD).  On Dr Lau’s referral, the plaintiff consulted a clinical psychologist, Ms Heidi Chan, for four sessions from December 2008 to January 2009.  After Ms Chan’s resignation, the plaintiff consulted Ms Emma T Wong, whom he saw from February 2009 to May 2011.  The Judge had made extensive reference to Ms Wong’s attendance notes which he found to be of assistance to the assessment of the plaintiff’s condition and personality.  As from March 2010, the plaintiff attended another psychiatrist, Dr John So, for treatment.  In total, the plaintiff received over 50 sessions of psychological and psychiatric treatment.

D.  The experts’ opinions and the Judge’s findings

D.1. Plaintiff’s orthopaedic condition

19.The plaintiff was examined by the defendant’s orthopaedic expert, Dr Lau Hoi Kuen, on 30 June 2008, and by his own orthopaedic expert, Dr Peter Tio, on 3 March 2009.  There was a joint examination by Dr Tio and Dr Lau on 18 August 2009, followed by a second joint examination on 12 July 2011, which was directed by the Judge after the trial had commenced (see further at paragraph 26 below).

20.At his examination of the plaintiff on 30 June 2008, Dr Lau concluded that the plaintiff had long reached the stage of MMI and that there was no physical or radiological evidence of complex regional pain syndrome type 1 (CRPS1). 

21.Dr Tio’s finding during the examination on 3 March 2009 was that the plaintiff’s gait was normal but slow, and there was no muscle wasting of both lower limbs with calves and thigh girths of both lower limbs equal.  He agreed that the CRPS1 issue had resolved. 

22.At the joint examination on 18 August 2009, the two experts noted that the plaintiff walked with a mild limb, but when his attention was distracted, he was observed to be walking normally.  They found no muscle wasting of both lower limbs with calves and thigh girths of both lower limbs equal.  An examination of his two shoes showed an equal amount of wear of the heel and the sole.  They also agreed that there were no detectable signs of CRPS1. 

23.Dr Lau assessed the plaintiff to be suffering from a 3 to 4% impairment of the whole person while Dr Tio was of the opinion that he suffered from a 4% impairment of the whole person.  Dr Lau considered that the plaintiff was expected to have stiffness of his 1^st and 2^nd toes permanently. However, the residual pain in his foot and the problem with weight bearing and walking could not be as severe as the plaintiff said.  Dr Tio, on the other hand, took the view that the residual foot pain was likely to persist in the future although the severity should gradually reduce to a certain extent.  

24.The Judge accepted[7] Dr Lau’s opinion that there was no evidence of CRPS1 back in June 2008 and held that the plaintiff should have completely recovered from any CRPS1 by then.  Consequently, the treatment that the plaintiff received from the pain specialist was not for CRPS1. 

25.In their joint supplementary medical report dated 29 March 2011, Dr Tio considered the plaintiff to have achieved MMI and what he needed was a simple painkiller for pain management and management by the psychologist or psychiatrist for his psychiatric condition.  Dr Lau, on the other hand, noted that pain was subjective and could not be objectively measured, and there was always the possibility of exaggeration.  He pointed out that during the joint examination in August 2009, the plaintiff was walking normally when his attention was distracted and no muscle wasting was observed. He also pointed out that there could not have been no muscle wasting in the plaintiff’s lower right limb if the plaintiff had suffered the severe pain that he claimed.  Dr Lau further said that the symmetrical degree of wearing of the sole of the plaintiff’s shoes was evidence that he had been walking normally.    

26.In the further report dated 15 July 2011 called for by the Judge to look at the issue of muscle wasting[8], the two experts referred to previous measurements done by Dr Tio and their latest joint measurements on 12 July 2011, and concluded there was no significant difference between the girths of the lower limbs, thus no evidence of any muscle wasting of the right lower limb.  The difference of less than 1 cm was, in the experts’ opinion, insignificant.  On the measurements reported by the pain specialist, Dr T W Lee, they did not feel able to pass comment, but Dr Lau pointed out that inter-observer differences in physical findings often occurred in clinical practice and examination and this was one of the reasons for having the system of joint examination.  

27.The Judge accepted the orthopaedic experts’ findings and opinion on the issue of muscle wasting, in preference to those of Dr T W Lee, and found the original muscle wasting suffered by the plaintiff had resolved by March 2009, and that the plaintiff had reached MMI in his orthopaedic condition by the same time.[9]

28.The Judge also accepted the orthopaedic experts’ evidence that at the joint inspection in August 2009, there was an equal amount of wear of the heel and sole of both of the plaintiff’s shoes.  The Judge rejected the plaintiff’s evidence that, after the joint examination, he had carefully examined the sports shoes he wore and found an unequal amount of wear with a greater amount of wear on the sole of the left heel.[10]  In coming to this view, the Judge had considered the photographs that the plaintiff took of his shoes, but did not accept that the experts were mistaken in their observation on the amount of wear of the heel and sole of the shoes.  The Judge also had regard to the surveillance video, part of which was recorded immediately after the joint examination in August 2009, and part was recorded a month later.  The Judge observed that the video recording supported the experts’ observation and finding of the plaintiff’s condition.[11]   

D.2. Plaintiff’s psychiatric condition

29.There was also a joint interview and assessment by Dr Ting Sik Chuen and Dr Chung See Yuen, who are the parties’ respective psychiatric experts.  In their joint psychiatric report dated 19 November 2009, it was reported that the plaintiff expressed a sense of helplessness and guilt during the interview, but he was not depressed or anxious and displayed no psychotic symptoms.  Both experts considered the plaintiff’s complaints about difficulty in falling asleep, poor attention and concentration, depressive recollections of the traumatic scene are compatible with PTSD.  Dr Chung, however, found, and the Judge accepted[12], that the plaintiff did not appear to be anxious when he recalled the accident and the anxiety symptoms, and his attention and concentration was normal.  Dr Chung observed the plaintiff was angry about what he perceived to be the unreasonable behaviour of his employers.  Dr Chung concluded, which the Judge also agreed[13], that the plaintiff’s complaint of anxiety and depressive problems were understandable and a normal psychological reaction in response to the stresses of the physical symptoms, unemployment, financial difficulty and the litigation, but there were no objective signs of significant anxiety and depression.  

30.The Judge accepted Dr Chung’s opinion that the mental problems only caused mild impairment to the plaintiff and are compatible with most useful functioning, that the plaintiff is mentally fit to perform all activities of daily living, that he had undergone appropriate and adequate psychological and psychiatric treatment, and that he had reached MMI.[14]  The Judge also accepted Dr Chung’s opinion that the symptoms of PTSD were in remission.[15]  The Judge further found the plaintiff’s anger towards the defendants, as reflected in the attendance notes of Ms Emma Wong, was not the result of any psychiatric illness caused by the accident, but was the product of his personality and that the plaintiff had problems in his relationships even before the accident.[16]

31.On the issue of the plaintiff’s ability to resume work, the Judge preferred Dr Ting’s view that the plaintiff is unable to return to work as a vehicle mechanic because of the risk of re-occurrence of PTSD.  The Judge, however, agreed with Dr Chung that the plaintiff was mentally fit to return to gainful employment after the sick leave for his physical condition expired.[17] The Judge also noted that Dr Ting in his supplementary report dated 28 February 2011 confirmed that the plaintiff was able to return to employment in any field of work suitable for him other than a workplace resembling his pre-accident job.  

D.3. Plaintiff’s pain condition

32.On 26 February 2011, the plaintiff was also assessed by the defendants’ pain specialist, Dr T W Lee. Subsequently, a joint report dated 11 May 2011 was prepared by the two pain specialists, Dr Carina Li and Dr T W Lee.

33.The Judge rejected the diagnosis of Dr Li that the plaintiff had constant, continuous and chronic pain and that he had permanent loss of normal function of his right foot and working ability, as being contrary to the orthopaedic experts’ findings, the psychiatric evidence, the plaintiff’s own evidence and also the surveillance video recording.[18]

34.As to Dr T W Lee’s finding that there was muscle wasting of 1.5 cm in the right calf, this was rejected by the Judge having regard to the orthopaedic experts’ findings in the previous reports as well as the updated report he called for in the course of the trial, and also the other evidence in the case (see paragraphs 25 to 28 above).

E. The appeal

E.1.  PSLA

35.The Supplementary Notice of Appeal does not contain any ground of appeal relating to the award on PSLA.  Mr Tang argued that this was impliedly related to the Judge’s finding that the plaintiff had adopted an abnormal sick role, contending that the plaintiff should be placed at the bottom of the serious injury category and be awarded HK$450,000. 

36.In dealing with the award on PSLA (at paragraphs 69 to 71 of the Judgment), the Judge had made no reference to the plaintiff adopting a sick role.  It is also clear from the Judge’s reasoning that his decision to award HK$400,000 for PSLA was based on a host of considerations, including the plaintiff’s injuries, his physical and mental conditions as well as relevant authorities. 

37.As Mr Tang acknowledged, appeal against decision on assessment of damages has to pass a high threshold.  The Court of Appeal would only interfere if the trial judge was found to be in serious error or acting upon a wrong principle of law or that the amount awarded was, in the judgment of the appellate court, too high or too small as to make it an entirely erroneous estimate: Cheung Kai Chi v. Chun Wo Contractors Ltd [2008] 1 HKLRD 102, §70. 

38.Having regard to the reasoning of the Judge, I cannot see any basis for disturbing his conclusion on this head of award.  It has not been demonstrated that the award is linked to the finding of adoption of a sick role.  Neither does the evidence justify putting the plaintiff at the bottom of the serious injury category.  I would dismiss the appeal against the PSLA award.    

E.2.  Pre-trial loss of earning

39.The plaintiff’s claim for pre-trial loss of earnings and MPF benefits is on the basis that had it not been for the accident, he would have become a qualified vehicle mechanic upon completion of his apprenticeship, but as a result of the accident he is no longer able to work as a vehicle mechanic, and that he has suffered total loss of earnings in the pre-trial period.  The Judge, however, did not accept that the plaintiff suffered full loss of earning capacity for the whole of the per-trial period. Instead, he held that the full loss of earnings should be confined to the first 24 months of the pre-trial period and that there was only partial loss of earnings in the remaining 27 months.

E.2.1.  The Judge’s decision

40.The major findings of the Judge that are relevant to this issue of pre-trial loss of earnings include[19]: (i) muscle wasting of the right leg initially suffered by the plaintiff had resolved by March 2009, by which time the plaintiff had reached MMI in his orthopaedic condition; (ii) the plaintiff has greatly exaggerated the residual pain and discomfort he suffers; (iii) the plaintiff’s mental condition (i.e. PTSD) had reached MMI by the time of the joint interview by the psychiatric experts in November 2009; (iv) although the plaintiff is unable to return to his pre-accident job as a vehicle mechanic, he is fit to take up sedentary work or work appropriate to his qualifications and previous experiences after the sick leave for his physical condition expired on 7 April 2009; (v) the plaintiff’s failure to return to gainful employment was not due to any residual mental problems that he suffered from; and (vi) the plaintiff’s perceived inability to resume employment was due to his adoption of an abnormal sick role, which was a consequence of his own personality and not caused by the accident. 

41.In paragraphs 55 to 68 of the Judgment, the Judge considered the issue of whether the defendants should be held responsible for the losses that flow from the plaintiff’s adoption of a sick role.  He drew a distinction between conscious exaggeration or malingering, which he did not find was the case of the plaintiff, and unconscious exaggeration.  Having considered the authorities (Digby v. Essex County Council [1994] PIQR P53, at 54, Ford v. GKR Construction [2000] 1 WLR 1397, Blyth Valley Borough Council v. Henderson [1996] PIQR P64, Mullins v. Gray [2004] EWCA Civ. 1483, and Lam Pui Yi Anita v. Secretary for Justice [2011] 1 HKLRD 56), the Judge came to the view that the resolution of the issue turns on causation:

“63. The resolution of this issue turns, ultimately, on the trial judge’s findings on causation. Salmon LJ, as he then was, posed the question of causation in these terms in James v Woodall Duckham Construction Co Ltd [1969] 1 WLR 903 at 906C-E:

‘… If a man pretends that he is suffering from great disability when he knows very well that he is not, and he tells his doctor he is suffering from pains all over when he feels no pain at all, he may well talk himself into believing that he is suffering from pain. He will suffer from pain in the future, and then he will not be malingering because the pain will be real. But that will not be a pain which has been caused by the accident: the accident will merely be the occasion out of which or after which the pain occurred, and the pain will have been caused by the man malingering – it will be self-induced.’

Although Salmon LJ said, in the passage quoted above, that the pain was caused by the man “malingering”, the man was no longer a malingerer by time the pain had became real, because he had talked himself into believing that the pain was real; as Salmon LJ said: ‘he will not be malingering because the pain will be real’.”

42.The Judge then had regard to Ashworth J’s judgment in Bowen v. Mills Knight Ltd [1973] 1 Lloyd’s Rep 580, at 586, which observes that while a defendant must take the plaintiff as he finds him, a plaintiff must equally take himself as he is and not seek to obtain compensation from a defendant for the results that are not from the defendant’s wrongdoing, but from his own personality; and also Kennedy J’s judgment in Jefferies v. Home Office, Queen’s Bench Division, 26 March 1999, which, after citing Bowen v. Mills Knight Ltd, went on to say that “while a tortfeasor must indeed compensate the victim for the consequences of the incident, whether those consequences are the inevitable consequences or are enlarged by the psychological characteristics of the plaintiff, he does not have to compensate the plaintiff for the plaintiff’s personality itself.”

43.Having noted that causation is essentially a question of fact, the Judge concluded that the plaintiff’s adoption of a sick role was a consequence of his own personality, not as a result of the accident, and the defendants should not be held responsible for the losses that flow from his adoption of an abnormal sick role (at paragraph 68 of the Judgment):

“68. Having carefully considered the evidence of the plaintiff and of the treating and expert psychologists and psychiatrists, I find that the plaintiff’s adoption of a sick role was a consequence of his own personality. As I have found above, his anger towards his ex-employers was not the result of any psychiatric illness, or change of personality, caused by the accident but the product of his own personality. He had relationship problems at work, and at home, which pre-dated the accident. The accident and the physical injuries he suffered did not adversely affect his personality but provided him with the occasion and opportunity for his pre-existing personality to manifest itself and lead him to adopt an abnormal sick role, and which he has done so effectively. I conclude that the defendants are not responsible for the losses that flow from the plaintiff’s adoption of an abnormal sick role. By way of analogy, let me postulate the example a motorist who drives his car negligently, bumps the fender of the car in front of him, and finds an extremely enraged driver emerge from that car, with a hockey stick, and start to smash his vehicle with that stick. Just as the negligent motorist is not responsible for the excessive violent reaction of the driver of the car he has damaged, so too the defendants here are not responsible of the excessive reaction of the plaintiff, who adopted an abnormal sick role notwithstanding that he was provided with appropriate and timely medical and rehabilitation services.”

44.The Judge awarded the plaintiff full pre-trial loss of earnings up to June 2009, after allowing a reasonable period of time after the end ofthe sick leave period (i.e. 7 April 2009) to look for suitable employment.  In respect of the remaining pre-trial period, he considered the plaintiff should have resumed employment and awarded only partial loss of earnings.

E.2.2.    Issue of muscle wasting

45.Mr Tang’s first challenge to the Judge’s assessment relates to his finding that the muscle wasting of the plaintiff’s right leg had resolved by March 2009.  Mr Tang had helpfully summarized the measurements of the thigh circumference and calf circumference taken by the orthopaedic experts and the defendant’s pain specialist, Dr T W Lee, in a tabular form, which is reproduced below:

	Date of examination Examiner	Thigh circumference -   Right / Left (cm) Position of measurement	Calf circumference -   Right / Left (cm) Position of measurement
1.	30 June 2008 Dr Lau Hoi Kuen	43 / 44 Unknown	36.5 / 38 Unknown
2.	3 March 2009 Dr Peter Tio	44.5 / 44.5 10 cm above patella	35.5 / 36 Maximum girth
3.	18 August 2009 Dr Lau and Dr Tio	44 / 44 10 cm above patella	35 / 36 Maximum girth
4.	26 February 2011 Dr T W Lee	Unavailable	36 / 37.5 25 cm above medial malleolus
5.	12 July 2011 Dr Lau and Dr Tio	49 / 48.5 15 cm above patella	37 / 37.5 10 cm below tibial tuberosity

46.Mr Tang argued that Dr Tio’s finding in his 7 March 2009 report and the finding in the 31 August 2009 joint orthopaedic report that there was no muscle wasting of both lower limbs with calves and thighs girths of both lower limbs equal are not reliable in light of the figures in items 2 and 3 above.  I do not agree with the submission.  It can be seen from items 2 and 3 that the thigh circumference of both limbs is equal.  Although there are differences in the calf circumference measurements, they are in the orthopaedic experts’ opinion, which the Judge accepted, of no significance.

47.Mr Tang further argued that the measurements taken by Dr Lau and Dr Tio on 12 July 2011 are unreliable in that the figures showed the thigh circumference had grown by as much as 4 cm, as compared to the previous measurements, and that they suggested the plaintiff had muscle wasting in the left thigh by 0.5 cm.  This argument has overlooked the fact that the thigh measurement on 12 July 2011 was taken at 15 cm above patella whereas the previous ones were taken at 10 cm above patella. Further, as mentioned above, a difference of 0.5 cm between the two legs is regarded as insignificant.

48.It is also submitted that given the difference in time and positions between the calf circumference measurements taken by Dr T W Lee and those taken by the orthopaedic experts, the difference in the results is not necessarily conflicting and incompatible.  It is said that the Judge erred in rejecting Dr T W Lee’s measurements since neither Dr Lau nor Dr Tiu had said that Dr Lee’s measurements were wrong.  Although neither of the orthopaedic experts had directly commented on Dr Lee’s measurements, they had in their further joint report maintained their view that there was no evidence of muscle wasting of the right leg.  Their conclusion is in direct conflict with Dr Lee’s finding that there was muscle wasting which was consistent with decreased use of the right foot.  The Judge, as he was entitled to, after considering the evidence in the case came to the view that the orthopaedic experts’ findings and opinion are to be preferred.  It should also be pointed out that the Judge had been made aware of, and would have taken into account in making his findings, the differences in the position of measurement adopted by Dr Lee and the orthopaedic experts.[20] 

49.In short, there is no proper basis to interfere with the Judge’s finding of fact that the issue of muscle wasting was resolved by March 2009, by which time the plaintiff had reached MMI.  There is an abundance of evidence to support the Judge’s finding, including the finding of the treating doctors, Dr James Kong and Dr Eric Chien, that the plaintiff had reached MMI in December 2008 and latest by March 2009, the fact that the plaintiff had only been granted sick leave up to 7 April 2009, and importantly the agreed opinion of the parties orthopaedic experts.  It cannot be said that the Judge’s finding is unsupported by evidence or is plainly wrong.

E.2.3. Adoption of a sick role: Evidential basis

50.The plaintiff’s second challenge to the Judge’s assessment of pre-trial loss of earnings is directed at the Judge’s finding that the plaintiff had adopted an abnormal sick role as a consequence of his personality and was not caused by the accident.  Mr Tang’s argument is twofold.  First, it is said that there is no proper factual foundation for the finding of an adoption of a sick role.  In Mr Tang’s submission, the Judge was wrong to find that the plaintiff had greatly exaggerated his residual pain and discomfort on the basis that muscle wasting of the right leg had resolved by March 2009 and there was an equal amount of wear of the heel and sole of both of the plaintiff’s shoes, together with the fact that the plaintiff walked in a normal manner and with a normal gait in the surveillance video. 

51.I had in the preceding section of this judgment rejected the criticisms against the Judge’s finding on muscle wasting.  I will also add that the Judge is correct in his view that the absence of muscle wasting is an objective indication of the level of recovery from the foot injuries and the level of residual pain. 

52.With regard to the surveillance video, the Judge is quite entitled to consider the recording and to make observations and conclusions on the plaintiff’s physical condition, including his ability to walk normally or otherwise. Mr Tang argued that the fact that the plaintiff was observed to be walking in a normal manner and with a normal gait does not mean he was pain free.  This, however, misses the point.  It is the orthopaedic experts’ opinion that the plaintiff will have residual pain.  The Judge accepted this. However, what is important and relevant is the extent of the pain, whether it was as severe as the plaintiff claimed, such that he could not reasonably be expected to return to work for the entire pre-trial period, or whether the plaintiff has, as the Judge found, adopted a sick role, exaggerated his pain and thereby prevented him from returning to employment.  It is of relevance and significance that, immediately after the joint examination, the plaintiff was shown in the surveillance video to be walking in a normal gait and using his right foot as the weight bearing foot to get on the bus.  It is supportive of the Judge’s conclusion that the plaintiff has greatly exaggerated his residual pain and disability.  

53.On the issue of whether there was an equal amount of wear of the heel and sole of the plaintiff’s shoes, this is also a finding of fact.  The Judge had looked at the pictures of the shoes taken by the plaintiff.  While he refrained from making a finding based on his view of what was depicted in the pictures, he rejected the plaintiff’s evidence that there was uneven amount of wear on the left and right shoes, but accepted the orthopaedic experts’ joint finding that there was no uneven amount of wear.  The Judge was clearly entitled to attach great weight to the joint finding and opinion of the parties’ experts.

54.In my view, it must be open to the Judge to weigh the plaintiff’s evidence against the totality of the other evidence in the case, especially the expert evidence.  In coming to the view that the plaintiff has greatly exaggerated his pain and condition, the Judge had also considered other objective evidence in the case.  This includes the fact that at the joint examination in August 2009, the plaintiff initially walked with a mild limp, but was observed to walk normally when his attention was distracted.  There is also the inexplicable deterioration in his condition as reported by the physiotherapists (see paragraph 16 above), which the Judge regarded as indicative of the plaintiff’s self-induced belief that his condition rendered him unable to work.    

55.I am not persuaded that the Judge’s findings on the surveillance video and the amount of wear in the plaintiff’s shoes are plainly wrong or that the finding that the plaintiff has exaggerated his pain and condition cannot be supported.  I see no proper basis to interfere with the Judge’s finding that the plaintiff has adopted a sick role. 

E.2.4. Adoption of a sick role: Causation

56.Mr Tang’s second argument is that even if the plaintiff did adopt a sick role, the causation is not broken and the defendants should be liable for the loss and damage occasioned to the plaintiff.  Mr Tang reminded us that it was the joint report of the pain specialists that first raised the issue of sick role, and according to the pain specialists, the plaintiff’s sick role originated from persistent or chronic pain, which could be attributed to physical, psychological and social factors.  Apart from the plaintiff’s own personality, his grievances about the defendants and the litigation stress also played a significant part in the formation of the sick role.  Mr Tang referred to paragraphs 29, 34 and 35 of the Judgment in which the Judge alluded to the plaintiff’s anger towards the defendants for causing the accident, his stresses over the litigation and his financial situation and the adverse effect of the stresses on his relationship with his brother.  He submitted that in the light of these paragraphs in the Judgment and the pain specialists’ evidence, the chronic pain suffered by the plaintiff, his anger towards the defendants, and the stress he experienced as a result of his financial difficulties and the ongoing litigation are all substantial causes of the plaintiff’s sick role, hence the fact that his personality was one of the causes would not break the chain of causation.   

57.I do not accept that it is open to the plaintiff to argue that apart from his personality, there are other substantial causes for the adoption of a sick role.  Paragraphs 29, 34 and 35 of the Judgment, properly understood, do not support the argument.  In paragraph 29, the Judge highlighted the findings of Dr Chung, one of which was that the main mental sign elicited in the joint examination was the plaintiff’s anger towards what he perceived to be the unreasonable behaviour of the defendants.  In paragraph 34, the Judge found the plaintiff to be suffering more stress from the ongoing litigation than from the residual symptoms of his psychiatric condition, and that his anger towards the defendants “was not the result of any psychiatric illness caused by the accident, but the product of his own personality”.  In paragraph 35, the Judge went on to point out that the plaintiff had suffered from problems in his relationships even before the accident, and rejected the submission that his psychiatric disabilities caused deterioration in his relationship with the family members and his elder brother.  In paragraph 36, the Judge elaborated on the plaintiff’s pre-accident relationship problems.  Paragraph 68 of the Judgment (see paragraph 43 above) makes it beyond doubt that the Judge did not consider the accident and the resulting injuries, the plaintiff’s anger towards the defendants or litigation stress had changed or adversely affected his personality or had contributed to his adoption of a sick role.    

58.As to the evidence of the pain specialists, the Judge had rejected Dr Li’s finding that the plaintiff suffers from persistent, continuous and chronic pain, and there is no appeal against this finding.  Although Dr Lee’s report had alluded to the potential causes of the adoption of a sick role, the Judge was not bound to accept it.  The Judge clearly had his reservations when he said in paragraph 45 of the Judgment that “[p]ain is subjective and it is for the court to assess the evidence of the injured person and come to a finding whether or not he is indeed suffering from pain and, if so, the nature and extent of that pain.”  Although he agreed with Dr Lee’s comment that the relentless pursuit of a cure may reinforce the sick role of the patient and detract from the efforts to engage the patient to take a more active role in his own management of his daily life, and had referred to the joint opinion that “the plaintiff’s pain has physical and psychological components including the legal case and compensation”[21], the Judge was unambiguous in concluding that the adoption of sick role was caused by the plaintiff’s personality and not his injuries, anger towards the defendants or anxiety over the ongoing litigation.

59.In James v. Woodfall Duckham Construction Co Ltd at 905G-H, Salmond LJ commented that:

“It is well known that, although there may be no physical cause for a pain, a man may in reality feel pain. I am never quite sure what the correct medical term is, but he suffers, for some psychosomatic or neurotic reason, from pain, although as far as his physical condition is concerned, he ought not to be suffering. Nevertheless he does suffer and it is just as real a pain as is produced, e.g. by a broken leg.”

Mr Tang relied on this and argued that pain is a new medical science and pain specialists are more sensitive to complaints of pain, thus Dr Lee’s analysis on the cause of sick role should be taken on board.  I do not consider Salmond LJ’s comment conflicts with the Judge’s view on the nature of pain and the court’s function to assess and determine whether a plaintiff’s complaint of pain is genuine and/or exaggerated.  Neither does it throw doubt on the Judge’s finding on the cause of the plaintiff’s adoption of a sick role.  It is apt to remember that causation is essentially a matter for the judge using ordinary common sense rather than abstract metaphysical theory: Lee Kin Kai, a patient by his father and next friend Li Wah v. Ocean Tramping Co Ltd t/a Ocean Tramping Workshop [1991] 2 HKLR 232, at 235I- 236E.

60.Given the finding of the Judge on the cause of the adoption of a sick role, there is no room for the application of the observation in Lai Yuk Shim v. Hung Ling Kwok [2013] 1 HKLRD 580, 583 at §8 that a relapse of a psychiatric condition as a result of anxiety generated by prolonged litigation is unlikely to be regarded as breaking the causation. 

61.Another important plank in Mr Tang’s argument is the Judge’s finding in paragraph 52 of the Judgment that the plaintiff was not a malingerer, relying on Salmon LJ’s judgment in James v Woodfall Duckham Construction Co Ltd, at 906C-E (see paragraph 41 above), this Court’s decision in Lam Pui Yi Anita v. Secretary or Justice, supra, and the case of Lau Pai Yam Bottomley v. Tai Tung Coffee Co Ltd, unreported, HCPI 745 of 2002 (29 September 2003, DHCJ Longley).  He submitted that no rational distinction can be drawn between personality and thin-skull because if the accident and the injuries provided the plaintiff with the occasion and opportunity for his pre-existing personality to manifest itself and led him to adopt a sick role, and if the manifestation is not contrived or feigned, then the chain of causation has not been broken. 

62.The Judge’s finding in paragraph 52 is that the plaintiff had greatly exaggerated his residual pain and discomfort, and while he was not a malingerer, “he has adopted a sick role so effectively that he has convinced himself that he is unable to resume any form of gainful employment.”  The plaintiff’s condition was therefore brought about by his self-induced belief that he was incapable of doing a job.  Importantly, the judge went on in the ensuing paragraphs to distinguish between malingering and unconscious exaggeration, recognising that where the unconscious exaggeration was due to a recognised psychiatric disorder or an unconscious psychological reaction, the tortfeasor must take his victim as he finds him.  The Judge rightly regarded the issue to be ultimately a question of causation.  He cited Salmon LJ’s judgment to highlight the point that although the pain was initially caused by the man malingering, the man was no longer a malingerer when he had talked himself into believing the pain such that the pain had become real.    

63.I agree with Miss Leong, who appeared for the defendants, that it is important to bear in mind that the issue that engaged the finding of the adoption of a sick role is whether the plaintiff was unable to work for the whole of the pre-trial period because of his residual pain and discomfort.  On the evidence before the Judge, none of the plaintiff’s treating doctors or the medical experts was of the opinion that the plaintiff could not return to some form of employment after the end of the sick leave period for his physical injuries. The medical evidence does not suggest that the plaintiff was prevented from taking up employment because of his physical or mental condition.  The Judge also observed, from the plaintiff’s performance during the trial, that his attention and concentration was normal, he was able to field difficult questions put to him in cross-examination and he had displayed no objective signs of significant anxiety and depression.  The Judge concluded that the plaintiff had exaggerated his pain and discomfort and convinced himself into believing he was sick and unable to do a job.  The Judge further concluded that this adoption of a sick role was not the result of psychiatric or psychological illness, there being no medical evidence to support this, but the plaintiff’s personality.  Upon analysis of the treating psychologist’s attendance notes, the Judge found the plaintiff’s personality was not changed or adversely affected by the accident and the resulting injuries.  It is on these reasoning and basis that the Judge held, as a matter of causation, the plaintiff’s adoption of a sick role was caused by his personality, and was unrelated to the accident and the injuries.  

64.It is apparent from the above analysis that even though the plaintiff has a pre-existing personality issue, and the accident provided an opportunity for the issue to manifest itself leading him to adopt a sick role, and even though the plaintiff was not found to be malingering, the Judge’s finding that there was no causation between the adoption of a sick role and the accident, which is a question of fact, is well supported by the totality of the evidence in the case. 

65.The cases of Lam Pui Yi Anita v. Secretary for Justice and Lai Pai Yam Bottomley v. Tai Tung Coffee Co Ltd, which Mr Tang relied on, are very different.  In the Lam Pui Yi Anita case, the plaintiff’s claim in respect of a sick leave period was disallowed by the trial judge, who accepted the psychiatrist’s opinion that the plaintiff had adopted an abnormal sick role, though he did not specifically hold that the plaintiff was malingering.  The Court of Appeal allowed the plaintiff’s appeal, holding that (at §41):

“[i]f there has been a loss occasioned to a claimant because that claimant is unable to work as a consequence of a defendant’s breach of duty, then it matters not whether the expert witnesses consider that the claimant is suffering from a physical or psychiatric disorder.”

66.Important in that case is the fact that as result of her serious injuries, the plaintiff had adjustment disorder with mixed anxiety and depression.  This led Rogers VP to say (at §46):

“The fact remains that Dr Wong said in his report that the plaintiff was sick. … [T]he sickness referred to by Dr Wong nevertheless emanates from the original accident and, secondly, if a party has harmed another by breaching his duty towards them, causing them to be sick, it is his duty and obligation to right that damage. It is also the harmed party’s right to obtain redress and specifically to try to obtain compensation. If in resisting that rightful claim, the party in breach has aggravated the harm to the injured party and caused the sickness that came to the harmed party to linger and remain manifested, then if that sickness and manifestation are not contrived or feigned, the chain of causation from the original accident has not been broken; rather it is the party that has acted wrongfully that has failed to right the damage.”

67.In the Lau Pai Yam Bottomley case, the plaintiff was diagnosed to be suffering from adjustment disorder as a result of severe pain from the foot injury caused by the accident.  The psychology expert’s opinion was that one of the symptoms of the adjustment disorder would be the sick role and that as a result of his adjustment disorder, the plaintiff genuinely believed he was a sick man.  The Judge accepted the expert’s evidence.  While he found many of the plaintiff’s complaints were exaggerations, he did not find the plaintiff to be malingering.  He held that the plaintiff’s psychological state resulting from the accident had prevented him from returning to work and made an award for his loss of earnings for the entire pre-trial period.  

68.In both these cases, there was objective medical evidence that the plaintiff’s inability to work was due to a psychiatric or psychological condition brought about by the accident and the resulting injury.  The adoption of a sick role was a symptom of or a result of the psychiatric or psychological condition. 

69.In the present case, there is no such medical evidence.  As the Judge found, it is not because of any physical or mental condition that the plaintiff did not take up any form of employment.  Rather, it was his self-induced belief that he was sick and unable to work.  Although it was not intentional or dishonest malingering, it was an unconscious exaggeration of his disabilities.  There is no objective evidence to show that the plaintiff’s exaggeration was the result of a psychiatric or psychological condition that flowed from, or was aggravated by, the accident and the resulting injury.  It is the Judge’s finding, based on the evidence, including the treating psychologist’s attendance notes, that it was his personality that caused the adoption of a sick role, and the accident has not changed or adversely affected the plaintiff’s personality.  This is not a thin-skull case.  There is no demonstrable causation between the accident and the resulting injury and the plaintiff’s adoption of a sick role, which was the cause of his not working during the pre-trial period.  The Judge’s conclusion that the defendants should not be held responsible for the loss that flows from the adoption of a sick role cannot be faulted.   

70.For the above reasons, I would dismiss the appeal against the award on pre-trial loss of earnings. 

E.3. Future loss of earnings

71.The plaintiff’s case on loss of future earnings is that, had it not been for the accident, he would be able to work as a vehicle mechanic and earned a monthly income of $12,000 up to 30 June 2012 and $15,000 thereafter.  It was claimed that, as a result of the accident, the plaintiff could only find a job with monthly income of about $6,000.  Since the plaintiff intends to retire at the age of 65, an appropriate multiplier would be 16.4.   

72.Based on the earnings of another vehicle mechanic apprentice employed by the defendants and the statistics from the Census and Statistics Department, the Judge found (at paragraph 76 of the Judgment):

“[T]he plaintiff’s post-trial notional earnings, as an experienced vehicle mechanic, would have increased to about $10,000 per month today, rising to about $18,000 per month in seven years’ time. I find, therefore, that his median post-trial earnings were $14,000 per month for this seven year period. I also find that he ought to have obtained suitable gainful employment earning median earnings of about $6,000 per month between July 2009 and today, and which would have increased to about $7,500 by today, and further increased to the same level as that of an experienced vehicle mechanic in about seven years’ time from today.”

73.The Judge then dealt with future loss of earnings (in paragraph 78) as follows:

“On my findings, the plaintiff will suffer a future partial monthly loss of earnings at the rate of $1,250 per month for a period of seven years from today. This loss is assessed by taking the median notional future earnings of $14,000 per month, assessed above, for this seven year period, and deducting from this amount the median of the earnings in suitable alternative employment that he can undertake. As I have found above, he is able to earn about $7,500 today, and these earnings would increase to the same level as that of an experienced vehicle mechanic in about seven years’ time from today. These two figures produce median actual future earnings of $12,750 per month for this seven year period ($7,500 + $18,000/2). His future partial monthly loss of earnings for this seven year period is, therefore, $1,250 per month ($14,000 - $12,750). To compensate for this future partial loss, I assess a gross award of future partial loss of earnings and loss of MPF benefits in the sum of $110,250 ($1,250 x 105% x 7 years) which I would discount to $95,000 by reason of the accelerated receipt of the future loss.”

74.Mr Tang did not seek to argue against the adoption of $10,000 and $7,500 as the respective starting point for the plaintiff’s post-trial notional earnings and the earnings that the plaintiff would be able to receive from suitable alternative employment.  His complaint is that there was no evidential basis for the Judge’s findings that in seven years’ time, the plaintiff’s earnings from alternative employment and the post-trial notional earnings as an experienced vehicle mechanic will both rise to $18,000, and the Judge was wrong not to award any future loss of earnings after the seven years’ period.

75.Mr Tang cited Hong Kong Personal Injury Service, Division II, “Damages for Personal Injury and Fatal Accidents”, §1703 at p.1356 and Personal Injury Schedules – Calculating Damages, 3^rd edition, §83 to support his submission that, in the absence of evidence as to what might have happened to the plaintiff’s earnings in the post-trial period, the Judge was not entitled to speculate and to make the findings complained of.

76.In reply, Miss Leong argued that with time, the gap between the plaintiff’s notional earnings as a vehicle mechanic and his notional earnings from alternative suitable employment would be reduced and eventually closed as the plaintiff’s income increases and with promotion in his alternative employment.  She submitted that the Judge’s view could be supported by the evidence in the case, including the many courses that the plaintiff had undertaken, the qualifications he had obtained and also his employment history, the Judge’s observation on the plaintiff’s capability having regard to his ability to concentrate, to answer questions over a long period of time and the manner in which he fielded difficult questions, the wage statistics of vehicle mechanics and various types of  clerical and secretarial jobs from the Census and Statistics Department, and also the actual earnings of the experienced vehicle mechanics in the defendants’ employment.

77.Effectively, the Judge, while not accepting the defendants’ case that there was no post-trial loss of earnings since the medical evidence suggests the plaintiff could return to employment commanding similar earnings as a vehicle mechanic, considered there would come a time in the future that the plaintiff’s earnings from alternative suitable employment would be the same as the earnings of a vehicle mechanic.  This is a view that the Judge was entitled to take on the evidence before him, including those identified by Miss Leong as set out in the preceding paragraph.  I can also see the force of Miss Leong’s argument that it cannot be said that the income of a vehicle mechanic will always be higher than that of any field of work that the plaintiff is capable of undertaking, and that given the plaintiff’s education background, the trainings and qualifications he had received and his employment history, there is a likelihood that in time his income from alternative suitable employment will catch up with the income of an experienced vehicle mechanic. 

78.The difficulty, however, lies in the Judge’s adoption of seven years and $18,000 as the point or level at which the plaintiff’s notional earnings from alternative suitable employment will level out with the notional earnings as a vehicle mechanic.  Miss Leong accepted that there was no direct basis for the figure of $18,000, which represents a big leap from $10,000 and an even bigger leap from $7,500.  It also appears that the point of seven years was not something advocated by counsel or canvassed in evidence or submissions.  The Judge had not explained the basis for adopting these figures.  There is, in the circumstances, no proper evidential basis to support the Judge’s findings that in seven years’ time, the plaintiff’s earnings from alternative employment and the post-trial notional earnings as an experienced vehicle mechanic will both increase to $18,000 resulting in no further loss of earnings beyond the seven years period.    

79.I am of the view that this is a case where a smaller multiplier than the one claimed by the plaintiff (16.4) should be adopted having regard to the likelihood that in time the gap between the plaintiffs earnings from alternative employment and the post-trial notional earnings as an experienced vehicle mechanic will narrow down and may eventually close.  I would assess the future loss of earnings by adopting a multiplier of 12.  Using the difference of $1,250 found by the Judge, the future loss of earnings and loss of MPF benefits is in the sum of $189,000 ($1,250 x 105% x 12 years).

E.4 Value of the plaintiff’s mother’s services and her travelling expenses

80.In the Amended Revised Statement of Damages, the plaintiff claimed $83,675 as the value of his mother’s care and services in the first six months after the accident.  It was based on 10 hours per day for the 84 days before the k-wires were removed when the plaintiff was on wheelchair, 8.5 hours per days for 96 days thereafter when the plaintiff was on crutches, and 2.5 hours per day for the remaining 7 days, at the hourly rate of $50, which was the rate of a part-time home helper.  The plaintiff further claimed $13,440 as his mother’s travelling expenses for going home from her working place to prepare meals for him in the 14 weeks when he was immobilised.

81.The plaintiff’s mother’s witness statement confirmed the calculations for the two claims.  She further described the care and assistance she rendered to the plaintiff in his daily life in the 14 weeks when he was bedridden, and in the rest of the six months’ period.  She was cross-examined on the number of hours spent on looking after the plaintiff, which was at variance with the plaintiff’s oral evidence, and also the need of her going home to prepare lunch for the plaintiff.  

82.In paragraph 81 of the Judgment, the Judge accepted the evidence of the plaintiff’s mother on the care and attention she provided to the plaintiff during his hospitalisation and when he was convalescing at home.  He found the mother to be “clearly concerned for her son and rightly so”.  The Judge, however, only awarded $12,000 as the value of the services provided by the plaintiff’s mother in the first six months after the accident and had not made any award for the travelling expenses she incurred for going home during work to prepare meals for the plaintiff.  The Judge had not explained the basis for his decision.

83.The thrust of Mr Tang’s submission is that the Judge’s award for the mother’s service and his refusal to make an award for her travelling expenses were unreasonable given that he had accepted the mother’s evidence.  Miss Leong’s submission is that the Judge was entitled to adopt a reasonable level of award for this head of damages by reference to all the circumstances of the case.

84.I agree the Judge is not bound to accept the plaintiff’s quantification of the care and services provided by the mother, and he is entitled to assess the reasonable level of award to be made.  However, given his full acceptance of the plaintiff’s mother’s evidence, it is difficult, in the absence of an indication in the Judgment, to detect the basis for the Judge awarding only $12,000 for her care and attention provided in the six months period when for most of the time, the plaintiff was either immobilised or on crutches.  Similarly, it is difficult to understand why the mother’s travelling expenses for going home to prepare meals for the plaintiff in the 14 weeks that he was immobilised was disallowed in total.  There was no finding that it was unreasonable for the mother to do so in the light of the plaintiff’s condition at the time. 

85.In my view, the plaintiff’s appeal on this aspect of his claim should be allowed.  However, the claim of 10 or 8 hours per day for nearly the whole of the six months’ period appears to me to be on the high side, having regard to the descriptions provided in the plaintiff’s mother’s witness statement and her answers in cross-examinations, and bearing also in mind that she was at the same time working full-time, with working hours from 11:30 am to 9:00 pm.  Adopting a broad-brush approach, a sum of $30,000, which approximates the costs for employing a domestic helper, will represent a reasonable award for this head.  On the evidence accepted by the Judge, there does not appear to be any basis for not allowing the travelling expenses of the plaintiff’s mother incurred in the first 14 weeks after the plaintiff was discharged home. 

86.In short, I would substitute $30,000 for the Judge’s award on the value of the mother’s services, and award $13,440 as the travelling expenses of the plaintiff’s mother incurred after the plaintiff was discharge home.  

F. Conclusion on the appeal

87.For the above reasons, I would allow the appeal to the extent of: (1) substituting HK$189,000 for the award for future loss of earnings; (2) substituting HK$30,000 for the award for the value of the plaintiff’s mother’s services; and (3) allowing an award for the plaintiff’s mother’s travelling expenses in the sum of HK$13,440.

G. Costs order

88.Adopting the normal rule of costs follow event, there should be an order nisi that the defendants pay the plaintiff’s costs of this appeal, to be taxed if not agreed, and that the plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.

Mr Ronald Tang, instructed by Poon, Sum & Cheng, for the plaintiff.

Miss Susanna Leong, instructed by Gallant Y T Ho, for the defendants.