Wong Kwong San v. Lee Choi Wan

HCPI 700/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 700 OF 2010

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ASSESSMENT

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INTRODUCTION

1.This is an assessment of damages. However, the plaintiff has chosen to be absent at the hearing before me.

BACKGROUND

2.The plaintiff was born in Hong Kong on 17 August 1964.  He was educated locally up to Form one. He worked as a senior insurance manager for 15 years. Because of poor business, he switched to become a taxi driver in about August/September 2008[1]. In about 2 months’ time, he met the subject accident on 29 November 2008. At the material time, the plaintiff stopped the taxi at the right side of Pak Po Street, Mongkok.  However, the defendant drove his light goods vehicle so that its right side hit the left rear corner of the taxi.

3.On 31 December 2010, with the assistance of legal aid, the plaintiff commenced the present proceedings.  By consent, interlocutory judgment on liability with damages to be assessed was entered in January 2011.

4.Parties thereafter took some time to prepare their cases, including:

(a) witness statements of the plaintiff:

(i) first one (dated 13 July 2011)

(ii) supplemental (dated 5 July 2012)

(iii) 2^nd supplemental (dated 17 October 2012)

(iv) 3^rd supplemental (dated 20 December 2013)

(b) witness statements of the defendant:

(i) the defendant himself (dated 14 July 2011)

(ii) Brenda Poon (investigator) (dated 4 August 2011)

(iii) Li Lai Ha (investigator) (dated 4 August 2011)

(c) orthopaedic experts:

(i) Joint report (prepared in about 2011)

(ii) Supplemental joint report (dated 7 August 2013)

(d) neurological experts:

(i) Joint report (dated 17 January 2012)

(ii) Supplemental joint report (dated 28 May 2013)

(e) psychiatric experts:

Joint report (dated 20 February 2012)

5.The differences between the parties may be seen from the followings:

	Re-revised Statement of Damages		Answer to Re-revised Statement of Damages
	(8 January 2014)		(5 February 2014)
	$		$
PSLA	1,000,000		< 100,000
Pre-trial loss of earnings	2,633,100[2]		< 40,000[3]
Future loss of earnings	3,996,000[4]		-
Loss of earning capacity	120,000		-
Future costs of care	220,000[5]		-
Special damages	157,714 ______________		< 7,627 ______________
	8,128,814 ______________		< 147,627 ______________

6.However, legal aid discharged its assistance to the plaintiff as from 27 January 2015.

7.The matter thereafter went before the PI masters twice, in July and October 2016.  The plaintiff acted in person on these 2 occasions and, on 27 October 2016, leave was granted to set down the present assessment for 2 days.

8.Finally, the assessment was fixed to be heard before me from 24 to 25 July 2017.  In the weekend before the scheduled hearing, on 22 July 2017 at about 12:15 p.m., the plaintiff faxed the following to the Court:

“本人黃廣新因家母於日前病逝，需要忙於辦理母親之後事，至本人無閒出席此次聆訊，最終的法庭決定，本人亦尊重法官大人的判決。對於令此次的聆訊做成的不便，本人深感抱歉！特此通知！煩請安排處理！”

9.Mr. Patrick Lim, Counsel for the defendant, asked me not to dismiss the plaintiff’s assessment for want of prosecution but to proceed with the assessment, notwithstanding the absence of the plaintiff. Upon consideration, I agree with the suggestion.

(a)  The plaintiff is the victim in the accident. Judgment on liability was entered for the plaintiff against the defendant. From the case of the defendant as per his Answers to Re-Revised Statement of Damages, the plaintiff will be entitled to some damages. 

(b)Notwithstanding the absence of the plaintiff, the reports of government hospitals were ordered to be adduced as agreed evidence. There is also joint medical evidence wherein experts have made some agreement. At the end of the assessment, it boils down to whether the plaintiff could prove his case on balance with his extent of injuries caused by the accident.

(c)The assessment should not be adjourned.  To start with, it is not clear from the said fax if the plaintiff was asking for it.  Even if it was, I decided not to do so.  There was neither proper application nor supporting evidence before me.  The present case has taken almost nine years from the date of accident, and 7 years from the commence of the proceedings.  The assessments date is a milestone date that can only be varied upon exceptional circumstances and I did not find any herein.

THE HEARING

10.As said, the plaintiff did not attend the assessment.  He adduced no evidence.

11.Mr. Lim called 2 witnesses, the defendant and one investigator.  The defendant produced photos taken by the police of the subject accident.  He tried to show that the collision only caused minimal damage to the taxi, i.e. some paint was scraped off from its bumper only.  The investigator showed this court the video recordings on 7 dates in March and April 2011.  They attempted to prove that the plaintiff had only fabricated/exaggerated his injuries and symptoms.

12.Upon consideration, on balance, I agree to accept the evidence of the defendant and the investigator.

(a)   Both of them indeed relied on contemporaneous evidence taken at the material times.

(b)   The plaintiff did not attend and seek to contradict[6] them.

(c)   The photos produced by the defendant show that the collision was not serious and it only caused some paint on the taxi being scraped off.

(d)   The video recordings, as a whole, showed that the plaintiff could move his head/neck side to side from time to time without any difficulty.  He could also bend forward from his waist to pick goods in supermarket.  There was no sign of pain from his facial expression at all times.

(e)   I should add that the video recordings taken on 25 April 2011 is particularly detrimental to the plaintiff’s credibility and case.  He went shopping with a lady to supermarket for about half an hour.  He did not need the wheelchair and carried only a walking stick.  However, he did not really rely on it.  He walked smoothly.  He walked around, bent down and/or squatted down in the supermarket from time to time during the shopping.  He could walk upstairs and downstairs without the need of holding handrails.

(f)   With the production of video recordings, the plaintiff’s own orthopaedic expert had to amend his opinion.

“Dr. Wong: I would amend my opinion regarding the diagnosis. The diagnosis is sprain injury to cervical spine, causing herniation of C3/4 intervertebral disc; and sprain injury to lumbar spine causing L5/S1 disc herniation with annular tear. …”

(Supplement joint report dated 7 August 2013)

13.As a result, the opinion of medical experts instructed by the defendant are preferred to.

(a) Orthopaedic

(i) Joint report (prepared in about 2011)

“76. Dr Yip agrees that the present condition and findings on physical examination can not be fully explained by Orthopaedic problems. The refusal for physiotherapy treatment from the onset is hard to understand.

77. …

78. Dr Yip opines that Mr Wong would have suffered from neck pain, back pain and carpal tunnel syndrome even if he was not met by the subject injury. Untreated, any one of these conditions would have caused him not to be able to work as a taxi driver.

79. Dr Yip notes that the medical records indicate that Mr Wong was able to return to good physical function prior to the onset of carpal tunnel syndrome and/or lower limb numbness. Dr Yip opines that the subject injury did not alter the natural course of the functional deterioration. If entirely genuine.

80. …

81. Dr Yip opines that Mr Wong cannot return to his pre‑injury work as a taxi driver if he continues to refuse surgical treatment. He has already been warned of neurological deterioration. He must understand that this may be already irreversible.

82. …

83. Dr Yip opines that Mr Wong suffers from 2% permanent impairment of the whole person for the neck pain caused by the subject accident.  The lumbar pain should have resolved.  Dr Yip opines that Mr Wong suffers 2% loss of earning capacity as a direct result of the subject accident.”

(ii) Supplemental joint report (dated 7 August 2013)

“Pre‑existing conditions

14. Dr. Yip: Given the information of the accident scene and the photographs of the vehicle damage. There is no doubt in Dr Yip’s mind that all the MRI radiological findings in the cervical, thoracic and lumbar spine are all due to pre‑existing conditions.

15. …

Diagnosis and causation

16. Dr. Yip: Dr Yip is even more convinced that Mr Wong suffered from a simple sprain injury to the neck, if any.

Treatment

17. Dr Yip opines that give the surveillance video findings, it is not surprising that Mr. Wong regularly defaulted physiotherapy treatment. It is likely that he simply did not need such treatment. Dr Yip maintains his previous views on this aspect. Dr. Yip had previously opined that “the subsequent alleged deterioration to crutches and wheelchair is not explained, not documented and not expected.” This is now explained by the surveillance video.

18. …

Prognosis

19. Dr Yip: Good if not excellent. Given the poor clinical reliability demonstrated by the surveillance video. It is very hard to believe in any of the alleged complaints and disabilities.

20. …

Impairment, disability and return to work

21. Dr Yip the opines that Mr Wong suffers 0% permanent impairment of whole person as a direct result of the subject injury.”

(b) Neurological experts

(i) Joint report (dated 17 January 2012)

“Dr. Yu

While it was not possible to conduct a formal examination on his higher mental functions, it is likely that his cognitive functions were normal since there was no head injury or impairment of consciousness at the time of the accident.

The limb weakness he demonstrated at the examination was non‑organic and non‑physiological. The diffuse weakness in all his limbs was a result of less than full exertion. The give-­way weakness, as well as the equal involvement of the agonist and the antagonist muscles at the each joint, are classical signs of under­performance. Moreover, there was no corroborative evidence since the muscle bulk and tone, as well as the tendon reflexes, was normal.

The sensory disturbance that he claimed was also unusual and not of any recognized pattern.

The urinary symptoms he claimed cannot be explained on the basis of urological physiology. The objective tests administered by the urologist were normal and excluded any urinary dysfunction.

While he complained of significant neck pain, there was no associated muscle spasm.

The above indicate that there is no objective evidence for any neurological impairment. Attention is also drawn to the fact that examination conducted by his attending doctors and the orthopaedic experts did not show any convincing sign of cervical spinal cord lesion. It should be stressed that spinal cord compression as shown on MRI is not equivalent to clinical spinal cord impairments. Not uncommonly no abnormal signs are present in a subject with MRI evidence of a moderate degree of spinal cord compression; this is because the spinal cord has considerable functional reserve.

Since the neck sprain should have recovered within 4 months from the time of the accident and since there is no objective evidence to support his claim of neck pain, there is also no impairment due to neck sprain.”

(ii) Supplemental joint report (dated 28 May 2013)

“Dr. Yu

(1) The observations in the video recordings showed that Mr. Wong could go about his outdoor activities normally. His demeanour was normal; he did not appear to be irritable, anxious or depressed. He moved his head, neck, upper limbs and trunk in a normal manner in all the recordings. The normality of his bodily functions was more obvious in the recording on 13^th March 2011, 25^th April 2011 and 28^th January 2012. His gait was normal. While he carried a stick, he did not use it as an aid for walking. There was no sign of weakness, unsteadiness, pain or discomfort as he walked on level ground or even up a slope. There was no instance in which his legs suddenly gave way. It is noted that he was sitting on the wheelchair throughout the recording on 10^th March 2011, 18^th March 2011 and 21^st December 2011, but these were occasions when he had to attend medical clinics either for follow-up or for assessment of injuries he claimed to have sustained in the accident.

(2) These observations are therefore in stark contrast to his own description in his witness statements and the symptoms and findings on examination when he was assessed by Dr. Ng and myself on 11^th November 2011 (see Paragraphs 10 and 14 of the joint report dated 17^th January 2012).

Mr. Wong attempted to provide an explanation for such difference in his second Supplemental Witness Statement dated 17^th October 2012. He said his symptoms varied at different times. However, the huge difference of his demeanour, mood, pain manifestation and mobility as observed in the video recording and in the assessment by Dr. Ng and myself cannot have occurred in soft tissue injury of the spine or cervical spinal stenosis.

…”

(c) Psychiatric experts – Joint report (dated 20 February 2012)

“43. Mr. WONG was initially diagnosed to suffer from depression and in June 2011, he was hospitalized and was labeled as suffering from severe depressive episode with psychotic features. The entries in the outpatient psychiatric notes show that his complaints were vague and fluctuated. Mr. WONG gives an impression that his complaints were vague and not entirely consistent. The characteristics of the perceptual abnormality are not consistent with genuine auditory or visual hallucination. He sought psychiatric treatment soon after the death of his good friend (reported to be in April 2010); the imaginary voices or the seeing figures could be pseudohallucination related to grief. Yet they should not be related to the accident.

44.   In the present assessment, his performance in the cognitive test was unsatisfactory and he tended to give approximate answers.  Such performance cannot be explained by the physical or mental problems he complains about but indicates a tendency of symptom exaggeration. I do not think that he has suffered from a psychotic disorder.  I also consider the mood symptoms mild as it was repeatedly reported by the attending psychiatrist that he appeared neutral in mood during the follow‑up consultations.”

14.With the above findings, I move to quantum.

PSLA

15.Tam Fu Yip Fip v Sincere Engineering & Trading Company Limited (HCPI 473/2006, date of judgment: 6 June 2007, the Hon Saw J.) provides a good starting point.  In the authority, the victim suffered a soft tissue injury to his back in 2002.  The expert described it a “relatively minor one”.  There was no evidence to support the complaints of the victim.  He also suffered from a pre‑existing degenerative back disorder.  In the end, the Judge awarded him $75,000.

16.In the present case, the plaintiff only suffered a simple and minor sprain on his neck from the accident.  He fabricated/exaggerated his injuries and symptoms.  He also tried to link his pre‑existing conditions, including carpal tunnel syndrome to the accident.  Having considered that factor of inflation, I agree to adopt the suggestion in the Answer to Re-Revised Statement of Damages for the sum of $100,000 as appropriate PSLA.

PRE­-TRIAL LOSS EARNINGS

17.The plaintiff claimed that, as a taxi driver, his net earnings was $39,300.  He however has not produced any supporting documents. He also did not come at the assessment trying to convince the court by his oral testimony.  As such, I prefer the calculations of the defendant, which is premised on the objective statistics from the Transport Department, namely the average daily net income per taxi was $675 in 2 shifts and average operating days per month, 27.5.  As such, the pre‑accident monthly income of the plaintiff is $675 x ½ (i.e. one shift per day) x 27.5 days = $9,281.25. To adopt a broad brush approach as suggested by the defendant (for the benefit of the plaintiff), the figure of $10,000 is adopted.

18.With reference to the suggestions by the medical experts of the defendant, I agree with the suggestion of Mr. Lim that a period of 4 months is the appropriate sick leave for the injuries suffered by the plaintiff.  He thereafter failed to mitigate his loss.  Hence, a sum of $40,000 is awarded ($10,000 per month x 4).

FUTURE LOSS OF EARNINGS / LOSS OF EARNING CAPACITY / FUTURE COSTS OF CARE

19.There will be no future loss of earnings, loss of earnings capacity and future costs of care for the plaintiff in the present assessment.

SPECIAL DAMAGES

20.On top of the figures agreed by Mr. Lim, I will award the plaintiff the sum of $3,000 tonic food.  Otherwise, all other claims by the plaintiff are not accepted.  Hence, $10,627 is granted.

	$
Medical expenses $(147+980)	1,127
Travelling expenses	2,000
Repair costs for the taxi	4,500
Tonic food	3,000
	10,627

SUMMARY

21.To conclude, the plaintiff is entitled to:

	$
PSLA	100,000
Pre‑trial loss of earnings	40,000
Special damages	10,627
	150,627

INTEREST

22.Mr. Lim sought to argue that less interest should be awarded to the plaintiff as he had taken 5 years to complete the assessment.  However, as both parties have been legally represented for most of the time during the 5 years, I cannot be sure if the plaintiff should be solely held reasonable from the time taken.

23.As such, I will adopt the usual approach.  For general damages (PSLA), the plaintiff is entitled to interest at 2% per annum from the date of writ to the date hereof.  Regarding pre‑trial loss of earnings and special damages, there be half judgment rate from the date of accident to the date hereof.

COSTS

24.I will also make a costs order nisi.  The plaintiff is entitled to costs of the assessment, including costs reserved on party‑and‑party basis, at District Court scale, to be taxed if not agreed.  As the plaintiff was absent at the assessment, there will be no order as to costs regarding the hearing before me on 24 July 2017, notwithstanding I am indebted to the assistance from Mr. Lim. The plaintiff’s own costs will be taxed in accordance with Legal Aid Regulations.

The plaintiff was not represented and did not appear

Mr Patrick Lim, instructed by Chong & Partners, for the defendant