Yuen Wai Chuen v. Chan Wing Pui and Another

HCPI 110/2018

[2019] HKCFI 1521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 110 OF 2018

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Before: Deputy High Court Judge Raymond Leung SC in Court

Dates of Hearing: 3 and 4 June 2019

Date of Judgment: 21 June 2019

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J U D G M E N T

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1.This is the trial for assessment of damages in respect of the Plaintiff’s claim herein arising from a traffic accident, which befell him on 10February 2015 (the “Accident”). The Writ of Summon was issued on 29 January 2018 and Interlocutory Judgment was entered against the 1^st and 2^nd Defendants on 4 April 2018.

2.By consent, leave was granted on the first day of trial for the Plaintiff to file the Re-Amended Revised Statement of Damages (“RARSOD”) with no order as to costs.  Service of the same was dispensed with.

3.The Plaintiff is the only factual witness and his witness statement dated 14 August 2018 was ordered to stand as evidence-in-chief. The Defendant elected not to adduce any factual evidence. 

4.By consent, a direction was made by Master Grace Chan at the Check List Review Hearing on 25 January 2019 for the Joint Orthopaedic Report (dated 13 September 2018) furnished by Dr Baldwin Chan (instructedby the Plaintiff) and Dr Chun Siu Yeung (instructed by the Defendant) andthe Supplemental Report of Dr Chun Siu Yeung (dated 4 January 2019) to be adduced into evidence without calling the experts to give oral evidence. This is a matter to which I will return in my judgment hereinbelow.

THE PLAINTIFF

5.The Plaintiff was born in Hong Kong on 30 May 1990.  He completed Form 7 and attained a pass in three A-Level subjects.  Although he did not obtain a pass in English and he elected to give evidence in Punti, it is clear that he had no difficulties in comprehending the court proceedings, which was conducted in English.

6.Since June 2010, the Plaintiff has started to work in the logistics industry taking up various positions in different transportation companies.  On 1 November 2013, he joined Forward Transportation Co Ltd (“Forward”) as Customer Service Supervisor and he remained to be so employed when he met with the Accident.

7.The Plaintiff claimed that his salary had been increased to HK$16,300 as of August 2014 (paragraph 2 of the Plaintiff’s Witness Statement) but there was no documentary evidence to that effect.  In the RARSOD, it is claimed that his salary at the time of the Accident was HK$17,300/month. This is hotly contested by the Defendant.  Since the Tax Return of the Plaintiff for 2016/2017 was available in the Agreed Bundle, this discrepancy is of secondary importance.

8.It is not disputed that Forward operated warehousing and transportation facilities from certain industrial premises in Tsuen Wan employing various drivers and manual workers for cargo handling.  As a Customer Service Supervisor, the Plaintiff was responsible for liaising with customers to ascertain their needs for transportation services and to place orders under Forward’s system.  He led a team of 10 drivers and was responsible for deployment of the drivers and scheduling of their work.  He would normally ensure that the drivers in his team would cope with the work as scheduled.  

9.However, as the supervisor, the Plaintiff had to ensure that all the work was duly completed.  As such, there would be occasions when he was required to drive a goods van (or Light Goods Vehicle) to collect goods from customers and return the same to Forward for consolidation and stuffing into shipping containers.  He claimed that normally manual workers would not be provided at the customers’ premises and he would also have to load the goods into the van by himself.

10.At the time of the Accident, the Plaintiff was living with his parents at a public rental housing unit at Wah Sum Estate in Fanling.  He would attend work in Tsuen Wan by motorcycle.  He had a brother who worked in the construction industry and lived in village house in Fanling. 

11.The Plaintiff claimed that his favourite sports before the Accident included basketball, hiking and surfing.  This is again a matter ofcontention. The Plaintiff kept a pet dog and he said he would walk the dog,at times with his girlfriend, once in the morning and once in the evening.  He also helped out with household chores including shopping, cooking, laundry and doing the dishes.

THE ACCIDENT

12.It is not disputed that at about 08:34 hours on 10 February 2015, the Plaintiff was riding his motorcycle (bearing registration mark RZ 5878) along the first lane on the southbound carriage of Tolo Highway near Chainage 15.8(A) at Yuen Chau Tsai (as opposed to Yuen Chau Sai pleaded in the RARSOC) in Tai Po. 

13.At this juncture, a light goods vehicle (bearing registration mark JH 8056) driven and owned by the 1^st and 2^nd Defendants respectively suddenly cut across from the second lane to the first lane, encroached upon the Plaintiff’s path and collided into his motorcycle.  Upon collision, the Plaintiff was thrown off his motocycle and landed on the ground some 30 metres away and thereby sustained serious injuries. 

INJURY AND IMPAIRMENT

14.Immediately after the accident, the Plaintiff was conveyed to the Accident & Emergency Department of Alice Ho Miu Ling Nethersole Hospital (in Tai Po) for initial management.  He was then transferred to the Accident & Emergency Department of Prince of Wales Hospital (“PWH”)for further treatment. 

15.On presentation, he was found to have suffered (1) right ankle open fracture dislocation; (2) left thigh, left knee and right palm abrasions. X-ray and Computed Tomography examinations confirmed there was a right talus/tibia/fibula fractures with communition (multiple fracture points)of the talus (the bone immediately above the base ankle bone also known as calcaneus).

16.According to the Report of Dr Tang Ning (Department of Orthopaedic & Traumalogy (“O&T”), PWH) dated 4 June 2015:

(a)  Emergency operation was performed at PWH on the same day including (1) debridement of open fracture dislocation; (2) screw fixation of distal tibia and fibula fractures; (3) screw fixation of the talus fracture and ankle ligament repair.  Secondary debridement of the lateral ankle wound was performed on 25 February 2015.  The open wound over the lateral side of the ankle was managed by daily dressing and additional cast immobilization.

(b)  The Plaintiff was discharged on 3 March 2015 (ie hospitalization of 21 days).  Thereafter, he attended follow-up treatment at Li Ka Shing Specialist Clinic on four occasions between 13 March 2015 and 22 May 2015.  Repeated X‑ray showed similar fracture alignment and some sclerosis (abnormal stiffening) of the talus suggestive of onset of Avascular Necrosis (or “AVN” meaning dead tissue cells due to lack of blood supply). 

17.Thereafter, Magnetic Resonance Imagining carried out on 31 July 2015 showed healing of the Anterior Talofibular Ligament (“ACTL”) and Calcaneofibular Ligament (“CFL”) and Deltoid Ligament. He was allowed to walk with full weight bearing and gradual improvement of walking ability to around 30 minutes was noted during the follow-up on 15 April 2016 (see Report of Dr Tang Ning (O&T, PWH) dated 6 July 2016).

18.It is discernable from the latest Report of Dr Tang Ning (O&T, PWH) dated 5 January 2018 that:

(a)  at the subsequent follow-up on 14 October 2016, the Plaintiff complained of mild increase in right ankle pain limiting his walking tolerance to around 25 minutes on level ground.  X‑ray showed AVN of the talus but no gross collapse.  He was reassessed on 21 April 2017 with similar finding. 

(b)  The Plaintiff was seen again on 20 October 2017 and his walking tolerance was 20 minutes on level ground.  X-ray showed progression of osteoarthritis of his right ankle with narrowing of ankle joint space.  He required analgesics pro re nata (as needed) for pain control.  With the progression of osteoarthritis and in view of the Plaintiff’s young age, furthersurgery including ankle fusion (arthrodesis) might be required for pain control. 

19.The Plaintiff was jointly examined by Dr Chan and Dr Chun on 9 August 2018 and a joint report was furnished on 13 September 2018 (the “Joint Report”), which was adduced by consent without calling oral evidence from the two experts pursuant to the direction of the learned Master as aforesaid.

20.It is lamentable that the certain important aspects of the Plaintiff’s prognosis have not been dealt with in the Joint Report.  For instance, although both experts agreed that an arthrodesis might be necessary in the future, there is no hint as to when the Plaintiff’s right ankle is likely to deteriorate to a state wherein the pain would be so unbearable that an arthrodesis, leading to total loss of range of motion, would be justified.  In the absence of any evidence, Mr Sher made a bold assertion that the Plaintiff would prefer to have the arthrodesis as soon as possible.  This is illogical and disproportional since the pain is now controlled by analgesics.

21.Further, both experts referred to the “Guides to the Evaluation of Permanent Impairment” (6^thEd) published by the American Medical Association (the “AMA Guides”) but neither party saw fit to obtain the relevant extracts and insert the same in the Agreed Bundle.  In the circumstances, the Court is left to draw on its own resources and experience.

22.In the Joint Report, it was documented that the Plaintiff complained of residual intermittent pain over the right ankle to distal ⅓ of right leg (near the shin).  It was triggered with walking for more than 20 to 30 minutes (Visual Analog Scale (“VAS”) 6–7/10).  Occasionally, the pain would arise without particular movement but spontaneous around 2 to 3 times per day, each lasting around 20 to 30 minutes (VAS 3–4/10).  He also complained of stiffness of right ankle especially in extension.  He was taking analgesics about once a week.  The Plaintiff also complained of intermittent left knee pain starting in about mid-2017.  It was trigged with prolonged walking for more than 20 to 30 minutes and climbing stairs.  He was able to climb two flights of stairs.  The pain was of the intensity of VAS 6-7/10 when climbing stairs.

23.Further, the following findings upon physical examination were documented in the Joint Report:

“ Physical Examination

Right ankle

The Plaintiff walked unaided with normal gait

Tip-toe walking was mildly unsteady.

Heel walking had failed.

Single leg stance had failed on right side and normal on left side.

Squatting was full with both heels off ground.

On observation, there was right ankle circumferentially bossing [excessive growth after injury] and no deformity on left knee.

There was discolouration at medial malleolus [the bony prominence at the inner side of ankle joint].

There was medial scar, lateral scar and two stab wound scars at anteromedial aspect.

There was moderate right leg wasting.

On palpation, the temperature was normal.

There was swelling or effusion of the ankle joint.

There was tenderness at lateral and medial of the malleoli and anterior joint line.

The ligament was stable.

There was no ankle crepitus (crackling sound).

Range of motion of ankle was measured

	Left	Right
Plantarflexion [downward]	70 degrees	50 degrees
Dorsiflexion [upward]	20 degrees	-10 degrees
Inversion	20 degrees	5 degrees
Eversion	30 degrees	0 degree

Girth of lower limbs were measured

	Left	Right
Thigh	49.5 cm	48 cm
Calf	42 cm	39 cm
Malleolus	24.5 cm	29.5 cm

There was weakness at 4+/5 with cog-wheeling in ankle extension. The flexion was normal at 5/5 on right side. The power was normal at 5/5 on left side.

The sensation of the lower limb was normal on both sides.

Left knee

No deformity seen in left knee.

No knee effusion.

There was tenderness over lateral and medial joint lines with lateral side more severe.

Patellofemoral grinding elicited pain.

All knee ligaments were stable.

Range of motion of knee was measured

	Left	Right
Flexion	145 degrees	145 degrees
Extension	+10 degrees	+10 degrees
		(recurvatum both sides) [1] ”

24.Further, X-ray of the left knee showed no abnormality and X-ray done on the right ankle revealed:

(a)  Evidence of fracture talus, medial and lateral malleoli being fixed with multiple screws;

(b)  Lateral and medial malleolar fractures united in good position;  

(c)  Suggestion of bony sclerosis and lucent area of the posterior talus with some collapse suggesting possible AVN of the posterior portion of the talus.  The anterior half of the talus bone quality was normal;

(d)  Ankle joint surfaces on both sides not smooth;

(e)  Joint spaces narrowed;

(f)  Bone ossicles/fragments at anterior and posterior aspect of the joint;

(g)  Osteophytes at superior aspect of the talo-navicular joint;

(h)  No signs of infection, no loosening of screws.

25.Both experts considered the Plaintiff’s ankle injury a “major trauma”, which was consistent with the mechanism of injury attributable to the Accident. They also agreed that:

(a)  Due to intra-articular involvement of the fracture, development of AVN of talus dome and secondary degeneration of the ankle joint, it had resulted in residual stiffness and pain in the Plaintiff’s right ankle.

(b)  There was mild to moderate reduction of flexion, inversion and eversion.  There was an extension lag of right ankle dorsiflexion (flexing upward) rendering the Plaintiff unable to squat with foot flat on floor and to perform heel walking. The loss of range of motion was mild to moderate.

(c)  When power was tested, there was mild weakness in his right ankle extension but there was cog-wheeling detected which might suggest suboptimal effort.

(d)  There was moderate to severe degree of muscle wasting in his right thigh and calf compared to his left side.  There was bossing of his right ankle, which was caused by thickening of the soft tissue after injury and consistent with the residual right ankle injury.

(e)  Due to the post-traumatic osteoarthric change in the ankle joint with tala dome AVN, the Plaintiff might need further surgical intervention such as the fusion of the ankle joint by arthodesis (in an optimal position) resulting in complete loss of ankle movement but it would be pain free.

26.However, Dr Chan and Dr Chun disagreed on the following aspects:

(a)  Dr Chan opined the delay onset of the Plaintiff’s left knee pain was related to increase loading on his left leg as the right ankle pain increased with gradual deterioration of AVN and osteoarthritis of the right ankle.  He explained that patients tend to favour usage of the non-painful limb leading to increase of loading.  In this respect, Dr Chun did not totally disagree with Dr Chan but he took the view that the presenting symptoms was much more compatible with anterior knee pain syndrome, a very common condition in the general population without any trauma.

(b)  Dr Chan opined that due to the injuries and impairment sustained by the Plaintiff, he would experience difficulties in riding a motorcycle and climbing ladder.   His ability to drive and perform manual work would also be reduced and he would only be fit for sedentary job, which might affect his future employability. 

(c)  In contrast, Dr Chun (at p 10 of Joint Report) only stated that “At present there is no further surgery including removal of screw is needed.  He is able to continue his present work as described.” (emphasis added).  The same sentiment was expressed in the Supplemental Report of Dr Chun (dated 4 January 2019) though Dr Chun acknowledged the Plaintiff’sreduced ability to climb stairs and to perform heavy carrying or lifting.

27.Further, with reference to the AMA Guides, Dr Chan opined that:

(a)  the Plaintiff’s talus fracture had resulted in mild to moderate motion deficits and AVN of the talus dome (without talus body collapse) falling within Class 1 under the “Foot and Ankle Regional Grid” [2] for which 13% lower extremity impairment was recommended.

(b)  The right tibia and fibular fracture associated with ligament tear, which required repair, had contributed to the mild to moderate motion deficit and the lower limb impairment in respect thereof  was recommended to be 7% [3].

(c)  X-ray showed degenerative change with reduction of joint space.  The ongoing deterioration of degeneration would eventually lead to obliteration of the joint space.  It was of severe grade and it belonged to Grade 3 [4] under the “Foot and Ankle Regional Grid” for which 30% lower extremity impairment was recommended.

(d)  The combined lower limb impairment was therefore 43%, equivalent to 17% Permanent Impairment of the Whole Person (“PIWP”).  Another 1% of PIWP was to be added on account of the Plaintiff’s left knee pain.

(e)  Since the Plaintiff had yet to undergo the operation for ankle fusion, the result was unpredictable.  Therefore, it would not beappropriate to assess his degree of impairment with referenceto arthrodesis, which might vary from 7% to 68% of the lower extremity [5].

28.In contrast, Dr Chun assessed:

(a)  The ankle motion deficit accounted for 13% impairment of the lower extremity [6].

(b)  The post-traumatic osteoarthritis change of the ankle with joint narrowing and AVN of the talus dome accounted for 20% impairment of the lower extremity [7].

(c)  As matters now stand, the combined impairment of the lower extremity is 30%, equivalent to 12% PIWP. 

(d)  If the Plaintiff had undergone arthrodesis with the ankle fixed in a neutral (optimal) position, the impairment of the lower extremity would be reduced to 10%, equivalent to 4% PIWP.

ASSESSMENT OF DAMAGES

29.Mr Lim has helpfully identified in his Opening Submissions a total of 13 issues pertinent to the claim herein.  Mr Sher also agreed with the formulation of those issues.  However, I do not propose to deal with each of these issues in isolation since all such issues would be addressed one way or another in my assessment of damages hereinbelow.

Pain, suffering and loss of amenities (“PSLA”)

30.It is beyond dispute that the Plaintiff sustained a “major trauma” as a result of the Accident.  He was left with a damaged right ankle despite rehabilitation and treatment.  There is objective evidence of AVN of the talus (with narrowing of joint space) and muscle wasting of the right leg. 

31.There is also limitation in the range of movement of the right ankle, in particular, in dorsiflexion, which is most relevant to driving a vehicle since the right foot is involved in operating the accelerator and the brake.  There is no dispute that the Plaintiff has intermittent pain in theankle for which he requires analgesics.  Both experts agreed that he would need an arthrodesis at some stage in the future.

32.The Court is entitled to take into account PIWP in assessing award for PSLA (see Bharwaney J in Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599 (at para 60)).  In this context, Dr Chan assessed PIWP at 18% and Dr Chun, 12% (see paragraphs 27(d) and 28(c) hereinabove).

33.It is also trite that in approaching the assessment for Loss of Earnings in common law claims, loss of earning capacity in the context of Employees’ Compensation Ordinance (Cap 282) is inadmissible and irrelevant (see Mayo VP and Rogers JA (as he then was) in Tang Shau Tsanv Wealthy Construction Co Ltd CACV 58/2000 (unreported), [2000] HKCU 216 and Chan Wai Tong v Li Ping Sum [1985] HKLR 176 as admirably explained by Bharwaney J in Chan Yuet Keung at paras 54 – 60).

34.That said, in so far as both experts have rendered opinion in this respect, the Court is entitled to examine the cogency and logicality of such evidence in the totality of their respective opinion. 

35.In short, in so far as there is any disagreement between the experts as to the assessment of the degree of impairment, I prefer the opinion of Dr Chan to that of Dr Chun for the following reasons:

(a)  The “right tibia and fibular fracture associated with ligamenttear” is a significant aspect of the Plaintiff’s injury.  Dr Chun has not explained why he did not make any assessment therefor, which is allowable under the AMA Guides though not specifically listed.  In contrast, Dr Chan did make an assessment in that respect.

(b)  Dr Chun attributed the Plaintiff’s left knee pain to “anterior pain syndrome” which he said would be more consistent but without offering any explanation.  At a glance, this assertion calls for caution in light of the Plaintiff’s relative young age and previous good health.

(c)  In contrast, Dr Chan was able to postulate a convincing theory as to the delay onset of the left knee pain since patients like the Plaintiff (with right ankle injury and pain) are likely to prefer to use the non-injury (left) leg more.  In this case, there was objective evidence of significant muscle wasting in the right leg evidencing imbalanced use.

(d)  Dr Chun opined that the Plaintiff would be able to return to his previous job (see also Supplemental Report dated 4 January 2019), with driving duties, but was glaringly silent as to whether the Plaintiff would continue to be suitable after the anticipated arthrodesis.

(e)  For what it is worth, Dr Chun assessed the Plaintiff’s current loss of earning capacity (before arthrodesis) to be about 15% when PIWP was assessed at 12%.  He also assessed PIWP to be significantly reduced to 4% (after arthrodesis).  Therefore, Dr Chun gave the impression that there would be a corresponding reduction of loss of earning capacity (after arthrodesis) though he did not explicitly say so.

(f)  However, as a quick reference, in the Schedule to the Employees’ Compensation Ordinance (Cap 282), ankylosis of an ankle joint (frozen due to disease or injury akin to the effect of arthodesis) would attract an assessment of loss of earning capacity at 15% (in optimum position) to 25% (in worst position).

36.Accordingly, I assess PIWP at 18% as recommended by Dr Chan as matters now stand (as opposed to 12% assessed by Dr Chun). I also agree with Dr Chan that it would not be fair to predict the Plaintiff’s impairment after the anticipated arthrodesis.  That said, it is almost a certainty that the Plaintiff would find it even more difficulty, if not impossible, to drive a vehicle with a fused and frozen right ankle after arthodesis.

37.It has been put to the Plaintiff by Mr Lim that during the joint examination he told the two experts that he did not participate in any sports both before and after the Accident and he lied in order to exaggerate his claim for PSLA when he said he could no longer “do [his] favourite sports of basketball, hiking and surfing” (para 22 of the Plaintiff’s Witness Statement).

38.As indeed, it was documented in the Joint Report (at p.4) that“2. Mr. Yuen denied to have involved in any sporting or outdoor activities prior to and after the alleged injury” (emphasis added).  This is a typical record of the experts seeking to confirm with the Plaintiff that he had not suffered any sports injury, whether before or after the Accident, so as to deal with the issue of causation (ie to eliminate any other cause not related to the Accident).

39.In so far it is so suggested, I would be slow to subscribe to the idea that the two experts set out to explore the Plaintiff’s interest in sports. Again, by reason of the expert direction, the Court did not have benefit of the oral evidence from the experts.

40.In cross-examination, the Plaintiff initially denied having been asked during the joint examination about his sporting activities altogether. When being shown the record, he accepted he had been asked some questions but claimed he was under the impression that the doctors were asking about “professional” sports.  This is unbelievable and is typical of someone trying to guess when being put in a tight corner.  However, I am ofthe view that such evidence has not dented the Plaintiff’s overall credibility.   

41.Looking at the evidence in the round, the issue of whether or not he actively participated in sporting activities is neither here nor there. Admittedly, he would not have much time to do sports in any case due to exigencies of his work.  He spent a fair bit of time walking his dog, at times accompanied by his girlfriend.  Like many youngsters at his station of life,he would socialize with his friends and he used to travel around on his motorcycle. I would assess loss of amenities on that basis.

42.For the sake of completeness, the Plaintiff was not cross-examined on the cog-wheeling as documented in the Joint Report (see Paragraph 25(c) above).  It could have been precipitated by a number of factors such as pain or fear of pain.  Therefore, I will not give any weight to this remark in the Joint Report.

43.The Plaintiff’s injuries fall just below the Serious Injury category as defined by the Court of Appeal in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 (at 659) that:

“ It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain.”

44.Damages for PSLA is to be awarded on a broad-brush approach.  It is not the practice of the Court to assess PSLA with meticulous adjustment on account of inflation (see Cheng Sam Pak v Secretary for Justice [1998] 2 HKC 551).  The inflation-adjusted ranges of awards under the different categories of injuries are now readily available from the Personal Injury Tables (Sweet & Maxwell), also known as the “Chan’s Tables”.

45.In the RARSOD, a sum of HK$750,000 is claimed for PSLA in the Substantial Injury category. This is unrealistic since the Plaintiff’s impairment, serious as it is, is nowhere near that of those under the Substantial Injury category which include, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily (see Lee Ting Lam, supra).

46.In the Answer to Revised Statement of Damages, only a sum of HK$400,000 was admitted.  In the Closing Submission, Mr Lim increased it to HK$480,000.

47.In David John Slater v Commissioner of Police HCPI 646/2012 (unreported, 7 July 2017), Bharwaney J, taking judicial notice of the inflation rates afforded by the Composite Consumer Price Index, held that awards for PSLA in the Serious Injury category started at HK$530,000.  Likewise, the Chan’s Tables 2019 (at p 65) gives the range of awards for PSLA under the Serious Injury category from HK$548,000 to HK$740,000.

48.Taking into account the various authorities cited by both the Plaintiff and Defendant, I assessed PSLA at HK$500,000 (see, in particular,Cheng Wai Chun v Chan Kwan Yiu & Anor HCPI 913/2002 (unreported), DHCJ Muttrie, 28 May 2004 and Lee Yam Kan v Ng Pui Kuen & Anor[2016] 6 HKC 318 (HCPI 196/2014), DHCJ Paul Lam SC, 15 March 2016)).

Pre-trial loss of earnings

49.At the time of the Accident, the Plaintiff was employed by Forward as a Customer Service Supervisor.  Under his contract of employment, he was required to work 6 days a week and 10 hours per day(ie from 9:00 am to 7:00 pm).  His job description was not specified therein but he was required to work anywhere as designated by the company.

50.In his witness statement, the Plaintiff said when he joined Forward on 1 November 2013, his initial basic salary was HK$14,500/month,which had since been increased to HK$16,300/month in August 2014.  I note that there was also an allowance for good attendance as shown in the contract of employment.

51.In essence, a sum of up to HK$16,300/month was admitted by the Defendant in the Answer as the Plaintiff’s pre-Accident salary.  Accordingly, in his Closing Submission, Mr Lim calculated Pre-trial Loss of Earnings (inclusive of Loss of Mandatory Provident Fund Contribution)at HK$16,300 × 1.05 × 11 months and 9 days = HK$193,000.

52.It is unknown how the figure of HK$17,300/month came to be pleaded in the RARSOD.  In his oral opening submission, Mr Sher put it on the basis that he had inadvertently omitted the element of loss of MPF Contribution. However, it does not add up either since HK$16,300 × 1.05 is HK$17,115 only.

53.That said, the Plaintiff’s Tax Return (2016/2017) shows that his taxable income (from 1 April 2016 to 31 March 2017) was HK$210,380 and there was also a bonus of HK$13,272.  His average monthly earning for that year was therefore ($210,380 + $13,272) ÷ 12 = $18,637.67.

54.Further, the Plaintiff’s employment with Forward was terminated in September 2017 in circumstances described hereinbelow.  It is known that his salary for August 2017 was HK$17,346.08 (see Computation of Severance Payment).  His average monthly salary for the preceding 12 months (ie from August 2016 to August 2017) was HK$17,455.89, which was used by his employer to compute his severance payment.

55.Doing the best I can, I estimate the Plaintiff’s salary during the sick leave as ($16,300 + $17,455.89) ÷ 2 = HK$16,877.95 (rounded down to HK$16,800).  This would be the same as HK$16,300 + HK$500 = HK$16,800 on the assumption that the Plaintiff would still be entitled to HK$500 allowance for good attendance.

56.It is not disputed that the Plaintiff was granted sick leave from 10 February to 19 January 2016 (ie 11 months and 9 days).  Thereafter, he returned to his pre-Accident job at Forward and worked there until 8 September 2017. 

57.In the RARSOD, the Plaintiff seeks to claim for loss of income during the sick leave period only (10 February 2015 to 19 January 2016).  There is also a claim for Loss of Future Earnings and a claim for Loss of Earning Capacity.  There is, however, no claim for Pre-trial Loss of Earnings from the expiry of sick leave up to now.  It is unknown if the Plaintiff intended that Pre-trial Loss of Earnings, if any, during this pre-trial period to be subsumed in his claim for Loss of Earning Capacity.

58.In the RARSOD, it is pleaded at para 4(A)(b) that “The Plaintiff obtained forth-fifth [sic] salary in the first two months [from Forward] … The Plaintiff is duly authorized to claim reimbursement and indemnity from the 1^st and 2^nd Defendants”. However, not a shred of evidence was adduced by the Plaintiff to cover this aspect of the case. 

59.Upon enquiry and after taking instruction, the Plaintiff’s counsel confirmed the four-fifths salary for two months was in fact sickness allowance as a matter of employment benefits. There is no evidence that the Plaintiff has to repay his employer (see Davies v Inman [1999] PIQR Q26). 

60.In the end, Mr Sher agreed that the sickness allowance should be deducted from the claim for Pre-trial Loss of Earnings.  On the other hand, Mr Lim agreed that regardless of the omission in the pleadings, the MPF Contribution should be added back.

61.Taking into account MPF Contribution, the Pre-trial Loss of Earnings during the sick leave period (less sickness allowance received) is assessed at:

HK$16,800 × 1.05 × 11 months and 9 days − (HK$16,800 × 2 months × ⅘)

=    HK$199,332 − HK$26,880

=    HK$172,452

Future loss of earnings

62.Mr Lim argued that since the Plaintiff was able to return to work at Forward and was still able to drive, there should be no loss of future earnings. As to the Plaintiff’s ability to drive, I take Mr Lim to rely on the opinion of Dr Chun and the Plaintiff’s own evidence that he could drive for short distances.

63.However, this is to ignore (1) Dr Chan’s opinion, which I prefer, that the Plaintiff would only be suitable for sedentary work; and (2) the glaring silence on the part of Dr Chun as to whether the Plaintiff will be able to drive after he has undergone the arthrodesis (with his right ankle fused at a fixed position) in the future.

64.The Plaintiff claimed that as a Customer Service Supervisor, he had to perform driving duties regularly and he was required to drive a goods van to attend customers premises to collect goods and transport the same to Forward’s premises in Tsuen Wan for consolidation with other goods before shipment by container (ie Loose Container Load (“LCL”) jobs in logistics terms).

65.However, this is disputed by the Defendant.  As the evidence unfolded, it became clear that the Plaintiff was in charge of a team of 10 drivers.  Apart from handling customers’ orders for shipment jobs, he was responsible for scheduling of work for the drivers.  They normally tookcare of job orders for Full Container Load (“FCL”), where a full containerload of goods was handled door-to-door.  As such, FCL containers did not normally pass through Forward’s premises for handling. 

66.Some drivers in the Plaintiff’s team attended to goods from across the border carried by heavy goods vehicles. In so far as these LCL goods needed to be handled at Forward’s warehousing and cargo handlingfacilities in Tsuen Wan, there would be a team of manual workers to assist.  

67.The Plaintiff confirmed that the scheduled jobs every day would normally be handled by his team of drivers.  However, on occasions,he would need to take delivery from customers’ premises since he was thesupervisor and it was down to him to ensure that all jobs were satisfactorily completed.

68.In re-examination, Mr Sher sought to rely on the Joint Report (at p.5) documenting that “He was occasionally required to help driving the van and moving goods (around 50% of time)”.  At the end of the day, it is the oral evidence of the Plaintiff that matters.

69.It is not disputed that the Plaintiff was wheelchair bound for some time during his sick leave.  The Plaintiff said he was still in a walking stick for about a month after he returned to work in January 2016.  There is no reason to doubt that either.

70.The Plaintiff explained that after returning to work, he tried driving a few times but found it difficult. Further, his employer would notallow him to drive either due to safety concerns.  By reason of his inabilityto perform driving duty, there was discontent from his employer and by mid- August 2016, it became clear that his employment would be terminated. 

71.On 1 September 2016, the Plaintiff was notified by one Miss Emily Chow (Human Resources and Admin Manager) that his employment would be terminated by 8 September 2016 (ie with only 7 days’notice as provided in the contract of employment).  In the notice, it is stated that the reason for termination is “restructuring” of the company.

72.Notably.  Miss Emily Chow was the one who signed on behalf of Forward in the Plaintiff’s contract of employment (dated 1 November 2013).  However, the notice of termination (dated 1 September 2017) was under the letterhead of one “Finewell (HK-China) Transportation Co.Limited”, albeit signed also by Miss Emily Chow.  On the face of it, there has in fact been some changes in Forward, which might have brought about some restructuring or streamlining of Forward’s operation.

73.Neither the Plaintiff nor the Defendant sought to clarify the point with the Plaintiff in oral evidence.  One is left with the narrative documented in the Joint Report (at p 5) that “He was laid off in September 2017 because of poor business”.  There may be some grains of truth in this since the Plaintiff’s transportation business, which he undertook in November 2017 in partnership with his brother, was also not doing too well at the beginning (see below).

74.The Plaintiff believed that since he was the only one laid off bythe company, the unavowed reason for the termination of his employment with Forward was his reduced ability to drive and carry out manual-handlingwork.  Of course, the Defendants took issue with this and invited the Court to draw adverse inference from the Plaintiff’s failure to call Miss Emily Chow or any of his former colleagues to give evidence.

75.In this connection, Mr Lim made reference to authorities such as Wisniewski v Central Manchester Health Authority [1998] PIQR P324 as applied in Lai Cheong Ming v Cheng Chung Yu Eric HCPI 504/2009 (unreported), 7 January 2013, Mr Recorder Horace Wong SC, at paras 25 – 26).

76.However, I am not convinced that any adverse inference can bedrawn against the Plaintiff by reason of his failure to call Miss Emily Chow or his former colleagues from Forward.  It is well known that “disability discrimination”, if proven, is unlawful.  Even if it is true that the unavowed reason for termination of the Plaintiff was his disability, it is unlikely that Miss Emily Chow or the Plaintiff’s colleagues at Forward would come up to proof, if called upon to give evidence, since they are, presumably, still employed by Forward (or now Finewell).

77.More importantly, regardless of the reason for the Plaintiff’s termination, it is beyond dispute that the Plaintiff was thrown into the labour market from 9 September 2017 onward.  He gave evidence that he started to look for alternative employment in August 2017 as evidenced in the emails in the Agreed Bundle.  These include applications made on or about 4 September 2016 for the position of (a) supervisor in the cold storage of citý super (a supermarket chain) with an expected salary between HK$16,000 and HK$17,000 per month; and (b) a senior clerk in another company offering about HK$13,000 per month.

78.The Plaintiff asserted that most supervisory jobs in the logistics industry would require a bit of driving, which put him at a disadvantage. It was elicited that he was in fact offered the job as a senior clerk but he declined the offer as the salary of $13,000 was a bit low.

79.The Plaintiff’s brother, who was married with a daughter, was a formworker but unemployed around the same time due to completion of major infrastructure projects, such as the Hong Kong–Zhuhai–Macao Bridge where he used to earn over HK$1,000 per day.

80.In light of his own circumstances and with a view to helping his brother to make a living, the Plaintiff started a transportation business in partnership with his brother in November 2017, hoping to capitalize on his considerable knowledge and connections in the logistics industry.

81.For this purpose, the Plaintiff bought a goods van on hire purchase.  He was responsible for contacting customers and his brother was mainly responsible for driving the van since he could only drive short distances for about half an hour.  He also assisted in the handling of goods during delivery. 

82.The gross income from the partnership business was about HK$35,000 per month.  After deducting the outgoings and hire purchase installment, his brother would take HK$15,000 and there would only be about HK$7,114 left for him.  To put things in perspective, but for his generosity towards his brother, the Plaintiff’s share of the income from the business would be about ($15,000 + $7,114) ÷ 2 = HK$11,057.

83.However, that is of secondary importance since in the RARSOD the Plaintiff is not claiming for loss of earnings with reference to any shortfall arising from the alleged meagre income generated from the business (as compared to what he used to earn at Forward up to the date of the trial).  Despite the able argument of Mr Lim, I do not find it necessary to dwell on the issue of failure on the part of the Plaintiff to mitigate his loss.

84.The Plaintiff’s pleaded case under this head is erroneously framed on the basis of 35.4% loss of earning capacity propounded by Dr Chan by reference to 80% loss of earning capacity for complete loss ofa lower limb as stipulated in the Schedule to the Employees’ Compensation Ordinance (Cap 282).  On Dr Chan’s assessment of 43% impairment of the lower limb, the Plaintiff’s corresponding loss of earning capacity is pitched at 80% × 43% = 34.4%, with 1% being added on account of his residual left knee pain (ie a total of 35.4%).

85.Further, in the RARSOD, a pre-trial monthly salary of HK$21,028 is adopted (ie HK$17,300 × 1.05 × 1.05 × 1.05) on the basis of a 5% increase per annum from 2016, which Mr Sher clarified was on account of inflation.  By way of a mechanistic process, the Plaintiff’s notional earning from a sedentary job utilizing his residual earning capacity is therefore estimated at $21,028 × (1 − 35.4%) = HK$13,584.

86.To start with, no evidence of the inflation rate or wage increase was adduced by the Plaintiff.  Further, it is evident that Mr Sher did not realize that the Plaintiff’s earning in 2017 as shown in his tax return (2016/2017) and severance payment computation was in fact available in the Agreed Bundle.  It is puzzling why Mr Sher resorted to estimate figures without any evidence, when there were actual figures at least up to August 2017.

87.More importantly, the mechanistic approach based on the percentage of loss of earning capacity (under the Employees’ CompensationOrdinance) as adopted in the RARSOD is inappropriate for and not applicableto a common law claim (see Chan Yuet Keung (supra)).  It is rather unfortunate that counsel of Mr Sher’s seniority has fallen prey to this obvious pitfall. 

88.Notwithstanding that this fundamental error was brought to his attention before his oral opening submission, both by the Defendant and the Court, Mr Sher did not make any proper attempt to advance an alternative case.  The best he could do at oral closing submission was to abandon the mechanistic approach but maintain that the Plaintiff was only fit for sedentary job.  Hence, the salary of HK$13,584 attainable from a sedentary job remained as pleaded.

89.Mr Lim, for obvious reasons, sought to hold the Plaintiff to his pleaded case. I understand Mr Lim to be arguing that since the Plaintiff failed to prove his pleaded case, his claim for Future Loss of Earnings should fail altogether. 

90.I am of the view that the exercise is not as simple as that.  Despite the fundamental error as aforesaid, it remains the Plaintiff’s pleaded case that he will only be fit for sedentary work.  It is a matter of evidence.  I am satisfied that the Defendant was in no way prejudiced by Mr Sher’s late abandonment of the mechanistic approach.

91.It is true that the Plaintiff only gave evidence as to the potential earnings from citý super (HK$16,000 to HK$17,000) and from the senior clerk position (HK$13,000), when being questioned by the Court in the course of clarifying his evidence. However, these figures are well within the range of monthly income from similar jobs encountered by Court hearing personal injury cases. In any case, Mr Lim has not sought any adjournment or leave to adduce further evidence of potential earnings achievable by the Plaintiff. 

92.Faced with a situation of variance between pleadings and the evidence in an appeal from a personal injury case, Yuen JA said in Zhong Ruyin v Fuk On Home of Aged Ltd CACV 130/2012 (unreported), 23 April 2013:

“ 20.1 first it is not a matter of whether the plaintiff was bound by her pleadings. Of course pleadings are important, but more importantly the court should consider what evidence had been adduced at trial;

20.2 further the revised statement of damages contained assumptions of what the plaintiff could earn as a cleaner, not admissions of what she actually did earn.” (Original emphasis)

93.In assessing the Plaintiff’s Future Loss of Earnings, I will adopt his average monthly salary of HK$17,455.89 (August 2016 to August 2017) as the starting position.

94.I will also take judicial notice of inflation as reflected in the Composite Consumer Price Index, which is 2.7% (year-on-year from October 2017 to October 2018) and another 1.76% (from October 2018 to April 2019) [8] . On this basis, but for the termination of his employment with Forward in September 2017, the Plaintiff will now be earning about HK$17,455.89 × 1.027% × 1.0176% = HK$18,242.71 (rounded down to HK$18,240).

95.With his current disability, the Plaintiff cannot undertake prolonged driving or manual-handling duties.  Therefore, he may not be able to secure employment such as that of a supervisor in citý super offering about HK$16,000 to HK$17,000 (say HK$16,500) per month but there is still a chance.

96.At some future stage of his working life, the Plaintiff is likely to receive further operation by way of arthrodesis and would only be fit for sedentary job.  The reference point is the salary of a senior clerk at about HK$13,000 per month.  However, I accept Mr Lim’s submission that given the Plaintiff’s relatively high education attainment amongst his colleagues in the logistics industry, he may, notwithstanding his disability, be able to secure a higher income even from a sedentary job with advancement of his seniority and enrichment of his experience.

97.I would approach it on the basis that despite his disability, the Plaintiff would be able to secure an employment, earning between HK$13,000/month and HK$16,500/month in about September 2017.  Applying the same rates of inflation, his notional achievable monthly income is about (HK$16,500 + HK$13,000) ÷ 2 × 1.027% × 1.0176% = HK$15,414.85 (rounded down to HK$15,410).

98.The Plaintiff is now 29 years old. Assuming normal retirementage of 65, there is no dispute that at a discount rate of 2.5% (see Chan Pak Ting v Chan Chi Kuen (No 2) [2013] 2 HKC 365), the appropriate work multiplier is 23.47 (Table 9 of the Chan’s Tables 2019).

99.In the premises, taking into account loss of MPF contribution,the future loss of earnings is assessed at:

(HK$18,240 − HK$15,410) × 1.05 × 12 × 23.47

=    HK$836.893.26

100.Mathematically, the foregoing approach is not too different from an alternative scenario wherein it is assumed that the arthrodesis will be performed half-way through the Plaintiff’s working life.  

101.In this alternative scenario, the Plaintiff would be earning about HK$16,500/month while still being able to drive, albeit with reducedcapacity, in the first half of his working life.  After receiving the arthrodesis,he would only be able to earn a relatively low level of income from a sedentary job earning about HK$13,000/month.  Of course, adjustments according to inflation should also be made in this scenario.

Loss of earning capacity

102.This is damages to compensate for the disadvantage in the labour market, which the Plaintiff has suffered as result of his injuries arising from the Accident.  A sum of HK$300,000 is claimed in the RARSOD. 

103.In the Answer, the Defendants argued that no award should be made.  In the Defendants’ Closing Submission, Mr Lim accepted a sum of HK$100,000, referring to Lee Wai Kin v San Xing (China) Trading Ltd & Anor [2019] HKCFI 361 (unreported, HCPI 1323/2015), Master Queenie Lau, 12 February 2019 (paras 91 – 95) and Law Tai Wai v Chong Chi Fai t/a Unique Decoration & Construction Co HCPI 1034/2016 (unreported), Master Phoebe Man, 30 April 2019).

104.Mr Lim accepted that the claims for Future Loss of Earnings and Loss of Earning Capacity are not mutually exclusive.  Needless to say,the court should be cautious to avoid overcompensation where the two heads of claim overlap (see Clarke v Rotax Aircraft Equipment Ltd[1975] ICR 440 (at 445) referred to in Lee Wai Kin, supra).

105.The injuries sustained by the Plaintiff are more serious than that of the plaintiffs in the two cases relied upon by Mr Lim.  In any event,the awards in these two cases are no more than reference points.  There is not a “one size fits fall” conventional award. 

106.At the end of the day, one is guided by the fact that the Plaintiff had a major trauma in which he sustained, inter alia, a fracture of the right ankle with damages to various ligaments and onset of AVN of the talus and progressive degeneration necessitating further surgical intervention by way arthrodesis.   It is likely that his ability to drive a vehicle and perform manual-handling work would be impaired. 

107.Given that the Plaintiff is only 29 years old, it is likely that he would experience disadvantage in the labour market due to his disability and impairment.  Looking at the facts in the round, I am of the view that a sum of HK$150,000 would be reasonable.  This would only be the equivalent of about 10 months’ salary.

Future medical expenses

108.It is not disputed that the Plaintiff may need further surgical intervention by way of arthrodesis.  For this, a sum of HK$150,000 has been agreed.

Costs of care and attention during rehabilitation (after arthodesis)

109.Dr Chan opined that it would take 8 to 12 months for the Plaintiff to recover after the arthrodesis and Dr Chun explained the joint fusion would be solid in 10 to 15 weeks and hence the period of rehabilitation should not be more than 6 months.

110.The Plaintiff said before the Accident, he was living with his parents in a public rental unit at Fanling.  His father had retired and his mother was still working.  He would carry out two hours of household chores including shopping, cook and washing.  He also spent time walking his dog twice a day.

111.I accept that during the period of rehabilitation after the anticipated arthrodesis, the Plaintiff would not be able to care for himself, still less to perform the household chores.  The Plaintiff’s claim is based on $100 per hour and 4 hours per day for 12 months (ie HK$100/hour × 4 hours/day × 365 days = HK$146,000).

112.Mr Lim submitted that Dr Chun’s opinion that the joint fusionwould be solid in 10 to 15 weeks was not challenged and hence the period of rehabilitation should only be about three months.  He argued that the claim should be assessed on the rate of a domestic helper (ie HK$4,500 × 3 months = HK$13,500).  By this, I take Mr Lim to mean Foreign Domestic Helper since the rate of local domestic helpers would be much higher.

113.I do not find Mr Lim’s argument attractive in that the Plaintiff’s family has not engaged a domestic helper all along.  In fact, it is doubtful if a live-in Foreign Domestic Helper is allowed in a public rental housing.

114.On a rough-and-ready approach, I am of the view that a period of 8 months should be allowed for recuperation after the arthrodesis.  A sum of HK$100/hour × 3 hours/day × 365 days × ⁸⁄₁₂months = HK$73,000 is allowed.

Miscellaneous special damages

Medical expenses

115.A sum of HK$10,000 for medical expenses is claimed, along with HK$1,000 for rental of wheelchair and purchase of walking stick.  A sum of HK$2,285 is claimed for the various medical reports.

116.I agree with Mr Lim that the sum of HK$2,285 incurred on procuring medical reports for the purpose of litigation should be claimed as costs of the action herein and not by way of special damages.

117.The sum of HK$1,000 for wheelchair rental and purchase of a walking stick has been agreed.  However, Mr Sher is struggling to justify the sum of HK$10,000 for medical expenses since after reconciliation done by Mr Lim, only the sum of HK$2,350 was receipted and no evidence was led from the Plaintiff to prove the amount claimed.

118.In the premises, I award HK$2,350 for medical expenses and HK$1,000 for medical equipment.

Travelling expenses and tonic food

119.In the RARSOD, a sum of HK$10,000 is claimed for travelling expenses and HK$5,000 for tonic food.  No doubt, expenses of this nature would have been incurred in the circumstances.  Again, not a shred of evidence, whether documentary or oral, has been adduced by the Plaintiff in support of the claim. 

120.It is fortuitous that in the course of cross-examination on his weight gain after the Accident, the Plaintiff referred to extra food being brought by his family to him at hospital.

121.In the circumstances, Mr Lim offered HK$1,000 for travelling expenses and HK$500 for tonic food.  This is accepted by the Plaintiff.  I make the award for these items accordingly.

Loss of ability to provide service (under section 20C(4) of LARCO)

122.The Plaintiff also claims for the loss of ability to provide service to his family during the sick leave period (ie 339 days) at the estimated market rate of $100 per hour.

123.The Plaintiff’s evidence is that he would left home at about 8:00 am and returned about 8:00 pm after work.  At times, he would socialize with his friends.  It is doubtful if he could find the time to carry out regular household chores two hours a day on average.

124.In the circumstances, I would allow the sum of HK$100 × 1.5 hours/day × 339 days = HK$50,850.

Loss of motorcycle

125.On the basis of a surveyor’s report from Cheuk Hwa Hong (dated 14 March 2015), this claim has been agreed at HK$40,604.  I make the award accordingly.

SUMMARY OF QUANTUM

126.In summary, I assess damages for the personal injury claim herein as follows:

	Special damages
(1)	Pre-trial loss of earnings	HK$      172,452
(2)	Medical expenses	HK$          2,350
(3)	Medical equipment	HK$          1,000
(4)	Travelling expenses	HK$          1,000
(5)	Tonic food	HK$             500
(6)	Loss of ability to provide service to family	HK$        50,850
		_______________
	Sub-total  :	HK$      228,152
	General damages
(7)	PSLA	HK$      500,000
(8)	Future loss of earnings	HK$      836,893.26
(9)	Loss of earning capacity	HK$      150,000
(10)	Future medical expenses	HK$      150,000
(11)	Future costs of care and attention	HK$        73,000
		___________________
	Sub-total  :	HK$    1,709,893.26
		___________________
	Total  :	HK$    1,938,045.26

127.Accordingly, I enter judgment in favour of the Plaintiff in the sum of HK$1,938,045.26 together with interest on special damages at ½ judgment rate from date of the Accident (10 February 2015) and interest on PSLA at 2% from date of writ of summons (19 January 2018).

128.There will also be judgment in the sum of HK$40,604 for damage to the motorcycle together with interest thereon at 6% (ie approximate prime rate of HSBC plus one percent) from date of the Accident.

129.I also make a costs order nisi that the Defendants do pay the Plaintiff’s costs of the trial to be taxed if not agreed.

POSTSCRIPT

130.I shall not leave this judgment without registering the displeasure of the Court arising from the lack of preparation and the manifold of fundamental errors in the presentation of the Plaintiff’s case.

131.It would appear that the Plaintiff’s legal team has approached this trial for assessment of damages as if it were an inquisitorial process so that any error or evidential gap in the Plaintiff’s case would be cured or filled by sympathy of the Court towards an injured party.  It cannot be emphasized enough that a trial of this nature remains to be an adversarial exercise.

Mr Sher Hon Piu, instructed by Fung & Fung, for the plaintiff

Mr Patrick Lim, instructed by Krishnan & Tsang, for the 1^st and 2^nd defendants