Wo Wang Fu v. Wong Kwok Hung and Another

HCPI 821/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 821 OF 2014

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.By the Writ of Summons issued on 20 August 2014, the Plaintiff claimed against the Defendants for damages for personal injury, loss and damages arising out of the negligent driving of a light goods vehicle bearing registration number MS5963 (“the LGV”) by the 1^st Defendant, who was an employee of the 2^nd Defendant, at Kwai Chung Container Terminal, New Territories, Hong Kong on 26 August 2011.  The 2^nd Defendant was the registered owner of the LGV.

2.Interlocutory judgment on liability was obtained on 11 November 2014 with damages to be assessed.

THE ACCIDENT

3.The Plaintiff was a container truck driver working for the 2^nd Defendant and was a middle seat passenger on board of the LGV on the date of the accident.

4.At around 1230 hours, while the 1^st Defendant was driving the LGV at Container Terminal 3 of the Kwai Chung Container Terminal, he forcefully, sharply and suddenly braked the LGV.  The Plaintiff was thrown upwards and his head hit against the roof top of the LGV.  The Plaintiff sustained injuries by reason of the accident (“the Accident”).

THE INJURIES AND TREATMENTS

5.After the Accident, the Plaintiff managed to complete his work before he went to Princess Margaret Hospital (“PMH”) for treatment at around 1945 hours.  The Plaintiff reported pain over the posterior aspect of his neck.  There was pin‑prick sensation over the finger tips.  Examination revealed no neurological deficits.  X‑ray of the cervical spine revealed degenerative changes only.  He was treated and discharged a few hours later without hospitalization.

6.The Plaintiff attended the Accident and Emergency Department of Yan Chai Hospital (“YCH”) on 31 August 2011 for medical treatment.  He complained of neck pain. Examination revealed mild tenderness over left side of neck with no focal neurological deficit.  He was treated and discharged.  Sick leave was granted until 6 September 2011.

7.The Plaintiff visited YCH on 6 September, 9 September, 13 September, 17 September, 21 September and 8 October 2011 respectively for similar complaint.  On each occasion, he was treated and discharged with sick leave granted.

8.In fact, the Plaintiff also received his first physiotherapy treatment at YCH on 6 September 2011.  On assessment, his neck flexion was ½ of normal range.  The neck extension was limited. The neck side flexion and rotation were ⅓ of normal range.  On 11 November 2011, the neck extension range of movement improved to ½ of normal range.

9.On 10 October 2011, the Plaintiff sought medical treatment from Dr. CHAN Chung Po of Elite Medical Centre at Tsuen Wan.  Dr. CHAN found there was spasticity and tenderness at trapezius muscle of left neck with limited rotation.  He was given sick leave for 2 days up to 11 October 2011 and a further sick leave for another 2 days up to 13 October 2011 as he still had pain and dizziness on review on 12 October 2011.

10.On 13 October 2011, the Plaintiff attended YCH again for persistent neck pain.  He was then referred to and admitted by the Department of Neurosurgery of PMH for treatment.  On admission, the Plaintiff complained of headache and dizziness.  Physical examination shown no focal neurological deficit.  Computerized tomography shown no abnormality.  He was discharged on 14 October 2011 with neurosurgical and orthopedic follow up appointments for post‑concussion symptoms.  When seen on 29 August 2014, the Plaintiff still complained of headache, dizziness and poor sleep.

11.The Plaintiff was first seen by the Department of Orthopaedics and Traumatology of PMH on 11 November 2011.  He was referred to the Occupational Therapy Department of PMH Specialist Clinic for work rehabilitation on 9 December 2011.  Occupational therapy services including work capacity evaluation (“WCE”) and vocational counseling were provided.  During the last WCE on 28 February 2012, the Plaintiff complained of dizziness, headache, pain over the neck and shoulder and numbness over bilateral upper limbs.  His overall performance was assessed to be unmatched with his previous job demands as a truck driver.

12.The Plaintiff received physiotherapy treatment again on 20 April 2012.  His neck flexion, extension and right rotation was ⅓ of normal range.  The neck side flexion and left rotation was limited.  Hs had sensation deficit and the power of both arms was decreased to Grade 4 because of persistent pain.  The Plaintiff was re‑assessed on 8 January 2013. The neck range movement improved to ½ of normal range.  He was discharged with home exercise because the progress was static.

13.The Plaintiff was referred to clinical psychology services of the Caritas Medical Centre (“CMC”) on 2 March 2012 for his stress reactions.  He was seen 10 times as an outpatient from 23 April 2012 to 26 June 2013.  When he was first assessed, the Plaintiff was impressed to be suffering from Post‑Traumatic Stress Disorder and Major Depressive Disorder with mood‑congruent psychotic features.  Cognitive‑behavioral therapy was rendered to relieve his emotional symptoms.  He also received training on stress management and anger management skills to cope with his physical conditions.  On 26 June 2013, there was slight improvement over his sleep, reduced anxiety and remitted symptoms of both Post‑Traumatic Stress Disorder and Major Depressive Disorder.

14.On 13 July 2012, the Plaintiff was seen by Kwai Chung Hospital (“KCH”) Consultation‑Liaison Team on his psychiatric issues.  He was found to have suffered from Adjustment Disorder.  Since late July 2012, he began to suspect his wife of having extra‑marital affairs.  There were conflicts between the couple over the issue repeatedly.  In late August 2012, the Plaintiff hit his wife.  He was brought to the PMH on 7 September 2012 in view of his morbid jealousy to his wife, low mood and insomnia.  He was admitted to KCH from 8 September 2012 to 5 October 2012 for psychiatric treatment.  His diagnosis was revised to Delusional Disorder.  Since then, he attended follow‑up treatments.  When he was seen on 29 November 2013 with his wife, he was mentally stable with no active psychotic or mood symptoms elicited.  He was not anxious or depressed.  No abnormal belief attaching to his wife was noted.  Speech was relevant and coherent.  When seen on 23 January 2015, he reported that he had good appetite, can sleep fairly well, had no mood fluctuation or major anxiety attacks.  He was living with his wife and his son in good harmony.

15.The Plaintiff complained of hearing impairment with right tinnitus since February 2012.  He was first seen by the Department of Ear, Nose and Throat of YCH on 6 November 2012.  Examination shown no gross abnormality.  Pure tone audiogram shown right hearing loss from 30 dB to 80 dB and left hearing loss from 20 dB to 55 dB.  He was put on drugs for symptomatic relief.  Updated pure tone audiogram was done on 26 October 2015.  There was no significant difference when compared with previous assessment.

16.Apart from the above, the Plaintiff had also received treatments from private medical practitioners including bonesetters.

17.The Employee Compensation (Normal Assessment) Board found that the Plaintiff suffered a permanent loss of earning capacity at 7%.

18.The Plaintiff was granted sick leave from 26 August 2011 to 24 September 2013.

19.The Plaintiff has undertaken 3 joint medical examinations.

JOINT MEDICAL EXAMINATION BY ORTHOPAEDICS EXPERTS

20.The Plaintiff was examined by Dr. LAM Chi Keung Johnson, orthopaedics and traumatology specialist for the Plaintiff, and Dr. CHUN Siu Yeung, orthopaedics and traumatology specialist for the Defendants, jointly on 24 February 2015.  They have prepared a joint report dated 20 May 2015 (“the Orthopaedic Report”)

21.The doctors are of the view that the Plaintiff’s neck injury has reached maximal medical improvement.

22.Dr. LAM considered that the Plaintiff has some genuine pain and impairment in the neck despite various treatment.  He opined that the Accident caused “more significant and at least moderate degree of soft tissue injury to the neck, probably causing/significantly aggravating disc protrusion(s) in the neck, causing persistent neck pain and impairment” (paragraph 139 of the Orthopaedic Report).  Nevertheless, the Plaintiff can return to his pre‑accident job with reduction in work capacity.

23.Dr. CHUN opined that the complaint of “continuous nonstop neck pain of severe intensity is inappropriate but exaggeration.  Even with the advanced degeneration it will not give rise to unremitting pain unless there is cancer, infection or specific inflammatory diseases such as ankylosing spondylitis, of which none is found in [the Plaintiff]. (paragraph 111 of the Orthopaedic Report) and that the Plaintiff “is able to return to work as truck driver at container terminal as far as the orthopaedic injury is concerned” (paragraph 116 of the Orthopaedic Report).  He opined that reasonable sick leave for the minor sprain of neck should be 6 weeks (paragraph 118 of the Orthopaedic Report).

JOINT MEDICAL EXAMINATION BY NEUROLOGY EXPERTS

24.On 3 March 2015, the Plaintiff was examined by Dr. YU Yuk Ling and Dr. Edmund WOO who are specialists in neurology engaged by the Plaintiff and the Defendants respectively.  They have prepared a joint report dated 2 July 2015 (“the Neurology Report”).

25.Dr. YU was of the view that the Plaintiff has post‑concussional syndrome as evidenced by the symptoms of headache, dizziness, subjective impairment of memory, irritability and sleep disturbance.  Dr. YU however noted that “some of his symptoms and signs were not corroborated by objective evidence.  [The Plaintiff] had only a mild head injury with normal CT brain.  The disparity between his ability to give an account of his disabilities and his performance on formal testing was a sign of under‑performance. The lack of recollection in Registration and Recall was unconvincing.  The weakness in his upper and lower limbs which he demonstrated on examination was a result of less than full exertion.  The give‑way weakness and the equal involvement of the agonist and the antagonist muscles at each joint are classical signs of under‑performance.  Moreover, there was no corroborative evidence since the muscle bulk and tone, as well as the tendon reflexes, were normal.  The surveillance recording also showed that his limb movements were normal.” (p.18 to 19 of the Neurology Report).  Yet, Dr. YU believed that the Plaintiff did not intend to cheat because he did not complain of limb weakness.  The doctor suggested that the Plaintiff’s “non‑neurological weakness was more likely to be due to a combined effect of mood disturbance, pain and a subconscious attempt to impress the assessors of his perceived disability.” (p.19 of the Neurology Report)

26.Dr. WOO noted that there was under-performance in the motor examination.  Dr. WOO opined that the Plaintiff’s normal behavior and demeanour (i.e. the Plaintiff was ambulatory with good functional use of his hands as early as on November 2011, can negotiate the crowds on the street, made purchases at shops and supermarkets as well as drove on one occasion) as shown in the surveillance video are inconsistent with the limitation of neck movements and the diffuse weakness in his extremities that he demonstrated in the examination.  Dr. WOO further considered that “the discrepancies and inconsistencies defied neurophysiological principles and they raise the strong suspicion that his deficits were feigned for the purpose of the examination.  They cast serious doubt on the genuineness and integrity of his complaints.” (p.21 of the Neurology Report)

27.Dr. WOO believed that there is no residual neurological disability as a result of the Accident.  Since the Plaintiff did not have any concussion, there is no neuropathological basis for a post‑concussional syndrome. (p. 22 of the Neurology Report)

JOINT MEDICAL EXAMINATION BY PSYCHIARISTS

28.The Plaintiff was also examined by Dr. WONG Chung Kwong and Dr. YU Wai Tak Peter on 11 March 2015.  They are specialists in psychiatry instructed by the Plaintiff and the Defendants respectively.  They have prepared a joint report dated 22 July 2015 (“the Psychiatric Report”).

29.Dr. WONG found that the Plaintiff started to develop psychiatric morbidity shortly after the Accident.  He had symptom of hearing “wee wee” noise and also male voices, somatic symptoms, sleep disturbance, irritability and other mood symptoms and also a change of his relationship with his wife.  His symptoms deteriorated and developed delusional symptoms which abated after receiving psychiatric treatment.  Dr. WONG’s diagnosis is that the Delusion Disorder with insidious onset shortly after the Accident and it was caused by the Accident.  He also opined that the Plaintiff is still suffering from mild residual symptoms of Delusion Disorder though he has reached maximal medical improvement on psychiatric grounds. (paragraphs 52 and 62 of the Psychiatric Report)

30.While Dr. Peter YU agreed that the Plaintiff did suffer from Delusional Disorder, Jealous Type, he did not accept that the disorder was caused by the Accident because (a) the onset of the disorder was around 11 months after the Accident; and (b) none of the risk factors associated with delusionary disorder he identified by reference to “Synopsis of Psychiatric” (11^th edition 2015) applied in the present case. (paragraphs 58 to 60 of the Psychiatric Report)

THE PLAINTIFF’S CASE

31.The Plaintiff was born on 7 September 1957. He was almost 54 by the time of the Accident.  He is over 59 at the date of this assessment.

32.The Plaintiff gave evidence in Court.  He adopted the contents of his witness statements as evidence.

33.Around a month after the Accident, he returned to work for the 2^nd Defendant for a total of 8 days from 25 to 28 September 2011, from 1 to 3 October 2011 and 5 October 2011.  However, since he could not endure the physical unwellness experienced during work, he stopped working for the 2^nd Defendant and sought medical treatment.

34.As no further sick leave was granted after 24 September 2013 (after the medical assessment board appointment), the Plaintiff returned to work for the 2^nd Defendant again on 11 October 2013.  He was only assigned to internal transportation duties inside Kwai Chung Container Terminal.  He continued to work for the 2^nd Defendant until he resigned on 11 May 2014.  He joined another transportation company known as Wise Shine as a container tractor driver in June 2014.  He left Wise Shine on 9 December 2016.  His earnings varies from $11,000 odd to $20,590 per month.

35.Since 13 February 2017, he has been working as a heavy vehicle dump truck driver for a company known as Hin Sum at the Hong Kong‑Zhuhai‑Macao Bridge artificial island.  His basic salary is $22,000 with allowance.  His monthly earnings in March and April 2017 were $24,142 and $19,552 respectively.

36.The Plaintiff complained that he is still suffering from headache, neck pain, tinnitus, hearing nonexistent voice, dizziness, nausea, poor memory and sleep disturbance.  After the Accident, he stopped swimming and seldom went out for outdoor activities.

37.Further, he is still receiving treatments at Department of Ear, Nose and Throat of YCH, Neurology Unit at PMH, West Kowloon Psychiatric Centre and Psychiatry Unit at Kwai Chung Hospital.

THE DEFENDANTS’ CASE

38.Mr. NGAN Chun Ming, the managing director of the 2^nd Defendant, is the only witness for the defence.  He adopted his witness statement as his evidence.

39.He told the court that the average monthly salary of the Plaintiff as stated in the Form 2 dated 30 August 2011[1] i.e. $17,011 was a projected figure with the assumption of working 31 days in a month.  This however is not correct because it is not possible for a driver including the Plaintiff to work for a whole month.  The reasons are that there was supervisor to allocate works equally to the driver; there would be no work if no container vessel was at berth and the adoption of “work 8 days, rest 1 day” policy.

ISSUES IN DISPUTE

40.The main issues in dispute are:

(a) the seriousness of the injuries sustained by the Plaintiff;

(b) the damages for pain suffering and loss of amenities;

(c) the amount of pre-trial loss of earnings;

(d) the amount of post-trial loss of earnings;

(e) damages for loss of earning capacity; and

(f) amount of special damages and future medical expenses.

SERIOUSNESS OF INJURIES SUSTAINED BY THE PLAINTIFF

41.I will first of all deal with the seriousness of injuries sustained by the Plaintiff.  The surveillance video taken on 1 January 2012 was played at the assessment hearing.  The Plaintiff was seen walking and shopping in the Trade Fair at the Victoria Park and the Flower Market for hours[2].  Surveillance video taken on divers dates between November 2011 and January 2013 are also produced as exhibit.  The Plaintiff was seen going out, walking with normal gait, turning his head and neck freely in all directions, shopping, attending social gathering and even playing mah‑jong.  The behavior of the Plaintiff was normal and there was no sign of disability.

42.I share the views of Dr. CHUN who having viewed the surveillance video and observed that there was no sign of any dizziness or vertigo or neck pain.  The Plaintiff walked with normal pace and gait with natural and smooth body and neck movements.  Even Dr. LAM accepted that “on certain occasions, the Plaintiff was observed to be able to move his head/neck for a greater range (i.e. in rotation or in bending down) than what was observed in [their] previous joint assessment” (paragraph 20 of the Joint Supplement Report dated 14 August 2015).  Dr. YU and Dr. WOO have seen the surveillance video too and they agreed that the Plaintiff turned his head and neck freely in all directions and there was no sign of disabling headache or dizziness (paragraph 16 of the Neurology Report).  Dr. Peter YU was of the view that the surveillance video suggested that the reported mental symptoms typical of Adjustment Disorder before the onset of Delusional Disorder were likely exaggerated. (paragraph 60(c) of the Psychiatric Report)

43.On 22 January 2012, the Plaintiff was seen driving a private vehicle with his wife and son on board.  Under cross‑examination, the Plaintiff said that it was a short trip of around 30 minutes, there was no need for him to turn his head to check the traffic while driving and that he had taken anti‑dizziness medication beforehand.

44.The Plaintiff attended work capacity assessment on 8 February 2012.  According to the record prepared by the occupational therapist, the Plaintiff complained of dizziness, neck and shoulder pain and headache[3]. He was mostly homebound because afraid of fall.  At that assessment, the Plaintiff walked for 47 seconds and complained of dizziness and sense of loss of balance.  He was unable to tolerate 2^nd trial because increase of dizziness.  The assessment was eventually suspended.

45.Re‑assessment took place on 28 February 2012.  On this occasion, the Plaintiff climbed up ladder for 2 steps and complained of dizziness.  In the simulated driving action with head turning to both sides, the Plaintiff complained of bilateral upper limbs numbness and pain initially and then reported with significant increase in neck pain and dizziness.  The assessment was again suspended because the Plaintiff could not tolerate the pain and dizziness.

46.The behavior and demeanor of the Plaintiff as shown in the surveillance video in particular that taken on 1 January 2012 together with the driving on 22 January 2012 present a striking contrast to his performance in the assessments in February 2012.  I cannot find any plausible reason for that.

47.The performance of the Plaintiff in the assessments in February 2012 lead to another question.  If the Plaintiff cannot bear for simulated driving (4 months after the Accident), how can the Plaintiff work for a total of 8 days between the 11‑day period from 25 September to 5 October 2011 (1 month after the Accident)?  Theoretically, the conditions of the Plaintiff should be better in February 2012 than September/ October 2011, or the same but not worse.  When being confronted under cross‑examination, the Plaintiff explained that he poured hot water over his head for 5 to 6 minutes and that his wife helped to apply medication oil on his neck (“the Treatment”) every night after work in order to relieve pain.  Mr. SHAM, Counsel for the Defendants, submitted that the Treatment was clearly a new fabrication as it was not mentioned before.  While the Treatment was not mentioned by the Plaintiff in his witness statement, the Plaintiff did mention the taking of hot bath to cope with dizziness, headache and stiff neck during the assessment by the clinical psychologist at CMC on 23 April 2012.[4]  Yet, I accept the submission of Mr. SHAM that it is rather incredible that the Treatment could relieve the Plaintiff’s severe symptoms which none of the hospitals could.

48.The Plaintiff was granted sick leave on divers occasions since after the Accident until 23 September 2011.[5]  There is no reason for him to resume work on 25 September 2011 if he was still unwell.  If he really suffered the pain and physical unwellness as he complained of after he resumed work, one would expect that he would have ceased to work at once and sought medical treatment from a doctor as he did on 7 consecutive occasions after the Accident.  However, he did not.

49.All these show that the Plaintiff is an untruthful witness and he exaggerated his injuries.

50.I accept the opinion of Dr. CHUN and find that the Plaintiff only sustained soft tissue injury to his neck.  I reject Dr. LAM’s view because his opinion is not supported by objective evidence.

51.I accept the opinion of Dr. WOO and find that there is no residual neurological disability as a result of the Accident.  I reject the view of Dr. YU as the doctor also acknowledged that some of the symptoms and signs were not corroborated by objective evidence.

52.There is no dispute that the Plaintiff suffered from adjustment disorder after the Accident.  The key disagreement between Dr. WONG and Dr. Peter YU is whether the Accident caused the delusionary disorder. Of the two grounds raised by Dr. Peter YU in saying that delusionary disorder was not caused by the Accident, Dr. WONG only explained that the onset of delusionary disorder is often insidious and in the initial phase of the illness, delusionary symptom(s) may not be obvious (paragraph 61 of the Psychiatric Report) without addressing the risk factors mentioned by Dr. Peter YU hereinabove.

53.On the balance, I prefer the view of Dr. Peter YU and find that the delusionary disorder was not caused by the Accident.

54.I have considered all the evidence and the submissions of Counsel.  It is my finding that the Plaintiff only suffered from mild soft tissue injury to the neck.  He is entitled to sick leave for a period of 6 weeks for this injury although he did return to work in September 2011.  The Plaintiff can return to his pre‑accident after this sick leave with no reduction in working capacity.

55.It is my finding that there is no residual neurological disability as a result of the Accident.  While the Plaintiff had suffered from adjustment disorder, he has fully recovered at the latest by end of November 2012.[6]  The Plaintiff was granted sick leave for 14 days from 13 July 2012 to 26 July 2012 because of the adjustment disorder.[7]  While his sick leave was continued by reason of neck pain and delusion disorder, it is my ruling that he should still be entitled to sick leave for adjustment disorder until recovery in November 2012.  Sick leave under this head is 4.5 months.

56.I accept that the Plaintiff is still suffering from a mild degree of residual stiffness and pain at his neck, headache and dizziness.  However, these residual impairments will only causal minimal discomfort and inconvenience to the Plaintiff without affecting his work capacity and his pursuit of leisure activities like swimming, hiking and playing football.

PAIN, SUFFERING AND LOSS OF AMENITIES

57.Mr. YIP, Counsel for the Plaintiff, referred me to a number of authorities and submitted that the Court should award $600,000 under this head.  I need not refer to those authorities because the injuries sustained by the plaintiffs in those cases are far more serious than that of the Plaintiff herein.

58.Mr. SHAM, Counsel for the Defendants, submitted that the award under this head should be between $50,000 to $80,000.  He referred the Court to the following authorities.  Siu Leung Shang Peter v Chung Wai Ming (HCPI 43/2006, unreported, DHCJ Gill, 16 March 2007); Chan Kin Man v Cheuk Siu Tong (DCPI 1970/2008, unreported, HH Judge M. Chan, 16 November 2009); Lai Ka Yin v Chan Yiu Kei (DCPI 453/2008, unreported, HH Judge M. Chan, 7 January 2009); Chan Chun Wa v Wong Chiu Yuen Andrew (HCPI 755/2001, unreported, HH Judge H.C. Wong, 22 November 2007); Wong Hok Chuen v Tai Kam Kiu (HCA 5331/1985, unreported, Hunter J, 17 July 1986); Li Ting Fai v Woo Chi Keung (DCPI 807/2007, unreported, Deputy District Judge K Lo, 18 January 2008); Chan Siu Youn v Ng Kam Man (HCPI 533/1999, unreported, Recorder Ronny Wong, 28 July 2000) and  Hung Shing Kun v Yeung Chi Ming ([2006] 2 HKLRD 698, HH Judge Wong, 12 May 2006)

59.I have considered the authorities and the injuries suffered by the Plaintiff.  I am of the view that an award in the sum of $90,000 is reasonable.

PRE‑TRIAL LOSS OF EARNINGS

60.The Plaintiff claimed $17,011 per month as his monthly earnings (this is the projected figure adopted by the 2^nd Defendant in Form 2).  The Defendants suggested that the monthly earnings be $13,046 (with an average daily income of $593 and 22 working day a month).

61.Mr. SHAM submitted that the Plaintiff worked for 12 days in July 2011 and 21 days in August 2011.  He earned a total of $19,562 for these 2 months.  The average daily income is around $593 ($19,562/ 33).  He relied on the average number of working days of the Plaintiff from August 2010 to August 2011[8] and suggested that the Court should adopt 22 working day per month to calculate the loss of earnings.[9] 

62.Mr. YIP submitted that I should not take the earnings and number of working days of the 2 comparable workers into account because they were merely internal delivery workers while the Plaintiff was an internal and external delivery work and thus with more work opportunities.  I do not accept his submission as there is simply no evidence to support his contention.

63.The payroll records of the 2 comparable workers shown that they did not work for each and every day for any single month.  This support the evidence of Mr. NGAN.

64.I accept the submission of Mr. SHAM.  His calculation is based on the Plaintiff’s past working records which is the best evidence to work out the average earnings and the average number of working days.

65.The total sick leave is 6 months (6 weeks + 4.5 months).  The pre-trial loss of earnings and Mandatory Provident Fund is $13,046 x 6 x 1.05 = $82,190.

POST‑TRIAL LOSS OF EARNINGS

66.The Plaintiff was able to return to work for the 2^nd Defendant.  There is no award under this head.

LOSS OF EARNING CAPACITY

67.Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C

“The consideration of this head of damages should be made in two stages. (1) Is there a “substantial” or “real” risk that a Plaintiff will lose his present job at some time before the estimated end of his working life? (2) If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialise, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in particular case will, or may, affect the Plaintiff’s chances of getting a job at all, at an equally well and paid job.”

68.I fully accept that there is a substantial risk that the Plaintiff would lose his present job as the construction project would come to an end sooner or later before the end of his working life.

69.The Plaintiff had no difficulty in finding a new job in June 2014 after he left the employment of the 2^nd Defendant in May.  It took him around 2 months to get the employment with Hin Sum in 2017.

70.I think an award of $30,00 is appropriate under this head. 

SPECIAL DAMAGES

71.The Plaintiff claimed a total sum of $45,800 comprising of (a) medical expenses $8,800, (b) travelling expenses $12,000, (c) bonesetter and Chinese herbalist $10,000, and (d) tonic food $15,000.

72.Medical expenses is agreed by the Defendants.  There is no receipt for tonic food and no breakdown for the travelling expenses.

73.I allow $8,800 for medical expenses, $10,000 for travelling expenses, $3,000 for the bonesetter and Chinese herbalist and $5,000 for tonic food.  The total award under this head is $26,800.

FUTURE MEDICAL EXPENSES

74.The Plaintiff claimed a total of $30,000 for his back pain, neurological issues and psychiatric problem.

75.The Plaintiff is not entitled to any award for treating his delusional disorder because it was not caused by the Accident.

76.An award of $3,000 for treating his residual pain is appropriate.

SUMMARY

77.The awards are:

Pain, suffering and loss of amenities	$90,000
Pre-trial loss of earnings	$82,190
Loss of earning capacity	$30,000
Special damages	$26,800
Future medical expenses	$3,000
	$231,990

78.The Plaintiff agrees to give credit in the sum of $630,000 being the employee compensation received under DCEC 982 of 2014 on 21 September 2015.

79.The Plaintiff is entitled to interest on (a) general damages at 2% per annum from date of service of writ to date of judgment and (b) special damages at half of judgment rate from date of Accident to date of judgment.

80.The award together with interest is far less than the compensation received by the Plaintiff in his employee compensation claim.  I make an order nisi that the Defendants do pay the costs of this assessment including all costs reserved (if any) up to 21 September 2015 to be taxed on District Court Scale if not agreed.  The costs incurred thereafter including the costs of this assessment hearing and all costs reserved (if any) be paid by the Plaintiff to be taxed on District Court Scale if not agreed.  Certificate for one counsel.  The Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.  This order will become absolute 14 days after the handing down of this judgment unless there is application to the otherwise within such period.

Mr. Timmy C.H. YIP instructed by Messrs. Yu & Associates the Plaintiff

Mr. Walker SHAM and Ms. Nicole CHUN instructed by Messrs. Cheung & Yeung