Ng Wo Yin v. Kwok Hei Chun
Read the full judgment text of HCPI 809/2017 on BabelCite. This High Court CFI judgment was delivered on 6 November 2020.
1. This is an assessment for loss and damages suffered by the plaintiff as a result of a traffic accident.
Cited by 1 case · Cites 4 cases
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HCPI 809/2017 [2020] HKCFI 2822 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 809 OF 2017 ________________________ BETWEEN
________________________ Before: Master Roy Yu in Court Date of Hearing: 15 July 2020 and 25 August 2020 Date of Judgment: 6 November 2020 _________________________________ JUDGMENT _________________________________ 1.This is an assessment for loss and damages suffered by the plaintiff as a result of a traffic accident. Personal Background, Health and Social Life of the Plaintiff before the accident 2.The plaintiff gave evidence. He adopted his witness statement and supplemental witness statement as his evidence-in-chief. The plaintiff was 32 at the time of the accident and he is now 39. At the time of the accident, he was married and was living with his parents, his wife and his son who was then 19 months old. It is said that he had a good and happy family life. He had a close relationship with his son. Before the accident, he was the main financial support for the whole family. The plaintiff was fond of cycling. He would practice road biking at least twice a week. 3.The plaintiff was working as a sushi chef before the accident. He started as a sushi chef apprentice at a restaurant in 1998. Around one year later, he started to work for another Japanese restaurant as a junior sushi chef. Later he changed his work to acquire more skill in Japanese cuisine. In around 2005, he started working at a high end Japanese restaurant as a master chef. In around 2007, he joined a restaurant named “Sup 1” as the head sushi chef until he met the accident. 4.Before the accident, the average monthly earning of the plaintiff at Sup 1 was $20,310 including a basic salary of $17,500, shared tips $1,250, and lunch provided by the employer valued at $1,560. The Accident 5.On 3 August 2014, at about 1:40 pm, the plaintiff was riding a bicycle along the first lane of Mei Lai Road. When he came to the junction of Mei Lai Road and Lai Wan Road, he was hit by a private vehicle driven by the 1st defendant. Liability has been admitted in this action by the 1st defendant. Judgement on liability has been entered against the 1st defendant (hereinafter called “the defendant” as the claim against the 2nd defendant has been discontinued). Injuries and Treatment after the Accident 6.Ms Kei, counsel for the plaintiff started her submission with the agreed facts in the trial at the Magistrate Court which I have taken into account. They show the facts leading to the accident. On the injury suffered by the plaintiff, it is more helpful to look at the treating doctors’ reports and the two expert reports adduced for this case. I would also take into consideration the evidence of the plaintiff himself in assessing his injury. 7.The medical notes from treating doctors have been helpful summaries in the joint orthopaedic expert report. After the accident, the plaintiff was taken to Princess Margaret Hospital (“PMH”). According to a medical note by Dr Wong of PMH, on admission, it is observed that
8.By another report, Dr Chan of PMH also reported that on admission, the plaintiff complained of neck pain and back pain with left upper limb and left lower limb numbness. Physical examination showed no left upper limb or left lower limb motor neurological deficit. CT brain showed no intracranial lesion and no fracture skull. CT cervical spine showed no fracture or dislocation. 9.X-ray showed left transverse process fracture at L1, L3 and L4 levels. The plaintiff was treated with a brace, namely, Thoracic Lumbar Sacral Orthosis, and prescribed analgesic. He was hospitalized for 7 days and discharged on 9 August 2014. He had to have follow-ups at outpatient clinic of PMH. He was given sick leave by PMH from 3 August 2014 to 4 March 2015. There is no dispute to the period of sick leave. 10.The plaintiff received physiotherapy treatment from PMH from 8 August 2014 to 29 January 2015. He also receives occupational therapy treatment from PMH from 3 February 2015. 11.The plaintiff also received psychiatric treatment. The plaintiff did not have mental health service prior to the accident. According to the medical reports as summarised in the joint psychiatric experts’ report, the plaintiff was not depressed during his stay in hospital from 3 August 2014 to 9 August 2014. But later, starting from August 2014, he had recurrent mental symptoms, including fear, anxiety, startle response, emotional numbness, nightmares, and flashback of the accident. He had intermittent irritability and agitation. And the plaintiff has suffered from persistent fear towards cycling. 12.Starting from November 2014, the plaintiff suffered from depressive mood, precipitated by persistent physical pain and disability, delayed speech development of his son, financial stress, and worry of future. He had irritability, loss of appetite, reduced energy, and insomnia. He only slept for 3 to 4 hours every night. He lost his interest in sex and his usual hobby such as playing video game. He had temper outburst at home that led to marital relationship deterioration. He had heated quarrel with his wife leading to physical violence against her and he drove his wife and son away from home. 13.The plaintiff was referred by the orthopaedic clinic of PMH to psychiatric outpatient clinic and the first appointment was booked on 19 October 2015. The plaintiff had regular treatment from West Kowloon psychiatric Centre of Kwai Chung Hospital. He was diagnosed to suffer from adjustment disorder. He still had flashback of the accident and poor sleep. He was later diagnosed to suffer from post-traumatic stress disorder. From 19 October 2015 to 29 October 2018, he had received 13 session of treatment from the psychiatric clinic. 14.And starting from 11 April 2016 to 29 October 2018, the plaintiff also had 10 session of clinical psychological treatment. He is still receiving treatment from the clinical psychologist. 15.I shall come to the joint expert reports by orthopaedic and psychiatric experts hereinafter on his injuries. The Plaintiff’s Claim 16.The plaintiff’s claims as set out in the Revised Statement of Damages and the parties respective position as summaries by Ms Kei, counsel for the plaintiff and Mr Gidwani, counsel for the defendant in their respective closing submission are as follows –
17.Leaving aside the claim for PSLA, the major disputed item is the pre-trial and post-trial loss of earnings. Mr Gidwani submits that the plaintiff suffers no loss of earning after the sick leave as he is earning more when he returned to work. The main claim by the plaintiff is that, he could not work for both the lunch shift and the dinner shift because of his back pain and has to resign from his pre-accident job. (He used to work two shifts before the accident.) He has to look for part time work and later he works at My Sushi, he could only work for one shift. Had he been able to take up the two shifts, he would be able to earn more. He claims compensation for such loss of earning capacity from his disability to work two shifts. 18.And according to his evidence and the evidence of PW2 which I shall come to later, his monthly earning could be increased by a sum of $17,000 per month if he could work two shifts for My Sushi, which is the basic salary of the sushi chef who is employed by My Sushi to take care of the lunch shift. 19.At the hearing, I ask Ms Kei if the damages should be the difference between a chef working both shifts and a sushi chef working only one shift. And I have no evidence on what is the average difference between chef working two shifts and one shift. Ms Kei submits that this is a real loss of the plaintiff supported by evidence. And this is the basis for the claim for his loss of earning. The Evidence of the Plaintiff and his Witness 20.The plaintiff said he still has neck pain, back pain and waist pain after the accident. He complains that the pain increases after sitting down or standing for a period of time. The condition is worsen by bad weather. 21.After the accident, he cannot do vigorous exercise and he becomes fat. His overall health condition has deteriorated. The plaintiff claims that he could not ride his bicycle again due to fear and painful feeling of legs until now. He missed a number of cycle racing. He lost confidence in himself and avoid social gathering occasionally. 22.The plaintiff claims in his witness statement that after the accident, he feels depressed. He was easily irritated by minor matters, and have poor sleep. As mentioned above, he often has quarrel with his wife over trivial matters. And because of his pain, he cannot hold his son and their relationship worsen. 23.After the sick leave, he has returned to work at Sup 1 since March 2015. He retained his pre-accident post and have an average earning slight higher than before the accident, with a basic salary of $19,500, shared tips of $1,250, lunch benefit valued at $1,560 making a total of $22,310 per month. 24.And on return to work, his working pattern had not been changed, namely that he had to attend to lunch shift and dinner shift. He worked from 11 am to 2 pm for the lunch shift, rested for 3 hours and worked from 5 pm to 10:30 pm for the night shift. 25.The plaintiff said in his witness statement that he still suffered from back pain during work. At Sup 1, he had to stand at the sushi counter and maintain the same position for not less than 6 hours a day (每天我平均須站立在壽司吧前，維持同一個身體姿勢站立每日最少6小 時). He has to sit down from time to time and the work had to be taken over by his assistant. His employer was not happy with his need to break which created tension between them. This resulted in his resignation in May 2016, more than 12 months after he returned to work 26.After the resignation, the plaintiff worked in the shop of his father as a part-time or temporary worker earning $5,500 per month from June 2016 to July 2016. He then worked in a Japanese restaurant called 「濤」to prepare the food at the sushi counter. He had to work during both the lunch shift and dinner shift with a break in between for 2.5 hours. He had to maintain the same position and standing for not less than 7 hours a day. His monthly earning was about $21,000. However, due to back and waist pain, he had to resign in August 2016, after working for a few weeks. 27.Since then, the plaintiff decided to look for part time work, meaning a job that require him to work either the lunch shift or the dinner shift. In mid-August 2016, the plaintiff was employed by PW2 to work in the Japanese Restaurant 「一休日本料理」(“My Sushi”) as part time sushi chef until now. Initially, he worked for the lunch shift. He worked from 9 am to 4 pm. The restaurant served lunch from 12 noon to 3 pm and the plaintiff was only required to stand for 3 hours. His monthly earning is about $26,050 including a basic salary of $21,000, shared tips of $4,300 and meal allowance of $750. Starting from June 2017, The plaintiff worked for the night shift and he attends his duty starting from 4 pm until 10 pm. The restaurant serves dinner from 6 pm to 10 pm and he is only required to stand for 4 hours. His monthly salary is increased to $31,750, because his shared tips has been increased to $10,000. 28.By his supplemental witness statement, he corrected the earnings from My Sushi to $34,700 per month. 29.On cross examination, Mr Gidwani refers to an application form given by the plaintiff to the Social Welfare Department on application for TAVAS. It is not disputed that on this Form, the plaintiff has written his pre-accident earning as $17,500 per month, which is lower than the earnings he claims to have from Sup 1. The plaintiff denies that his pre-accident earnings is only $17,500. 30.Mr Gidwani also refers to the tax return for the year 2013/2014. It shows that the average monthly earning of the plaintiff is around $14,000, which the plaintiff agrees. In response, the plaintiff said he has not reported the tips in the tax return and added that some tips has been paid to him direct by the customers. Yet he agrees that there is no documentary proof that his pre-accident earning is $20,310 per months. 31.The plaintiff also agrees that after sick leave, when he returned to work at Sup 1, his monthly earning was slightly higher than before. 32.The plaintiff agrees that the customers for lunch shift at My Sushi are mainly students from university and colleges nearby. Most of the lunch boxes are for take away and with cooked food. But he disagrees that there is little profit from the lunch business. 33.Mr Gidwani put to the plaintiff that he has not tried to work two shifts at My Sushi. The plaintiff agrees but later at re-examination, he said he had tried to work for 1 or 2 days at My Sushi for both lunch and dinner shifts. He could not manage both shifts as he had to stand for the whole day. It is not mentioned in his witness statements that he has tried to work both shifts in My Sushi, as he said he looked for part time job as hereinabove mentioned. 34.A set of surveillance videos has been shown to the plaintiff which shows him working and chatting with customers at My Sushi. It is not disputed that he appears in the videos shown in court (and disclosed before this hearing). Mr Gidwani put to him that he appears in the videos to be able to bend forward and backward smoothly to prepare a shabu-shabu for the customers with no pain. It is put to him that his has no waist pain. But the plaintiff denies and said he was painful. But he explains that he has to work even feel painful. 35.There is a video clip showing that the plaintiff was playing with his son, but sitting down. 36.A number of other video clips have been shown to the plaintiff and in gist, it is put to the plaintiff that he had exaggerated his pain, which the plaintiff denied. 37.The other witness of the plaintiff is Ms Tsang Chor Man (“PW2”). She called herself the representative of “一休料理有限公司” in her witness statement. When being cross-examined, she explained that she is the manager of the restaurant and not a director of the company. Her mother is the sole shareholder who hold the shares on her behalf. 38.PW2 said in her witness statement that My Sushi only employ full time chef before employing the plaintiff. The plaintiff said he has been injured in an accident and cannot handle two shifts. But his qualification is very good and the company specially arrange the plaintiff to work as a part time staff, taking either the lunch or dinner shift. 39.Initially, the company arranged the plaintiff to be responsible for the lunch shift, working from 9 am to 4 pm. PW2 said in her witness statement, as the plaintiff has good performance, starting from June 2017, he was arranged to be responsible for the night shift. The customer for night shift have higher spending power and he needs to entertain the customers. His working time was then changed from 4 pm to 10 pm (and dinner time run from 6 pm to 10 pm). 40.The employment contract with My Sushi dated 1 August 2016 has been produced by the plaintiff. His employment starts on 15 August 2016. And his post is the main or head chef (總廚). His working hours is from 4 pm to 10 pm with a basic salary of $21,000, tips, and 10% of the turnover over $120,000 as bonus. There is no mention of the plaintiff may work either the lunch shift or dinner shift. There is also produced a written addition to the contract (“the supplemental contract”) dated 28 March 2018 which provides that the plaintiff is entitled to 10% of the next profit of My Sushi as bonus. 41.PW2 agrees that she signed the employment contract with the plaintiff. When asked, she explains in court that in 2016, when she took over the restaurant, there was another chef, 亞鎭, who work both shifts. His performance was not too satisfactory. She wants the plaintiff to help out either the lunch or dinner shift. The plaintiff was responsible for either dinner and lunch shift, and for him to learn. On re-examination, she said 亞鎭 left My Sushi in September 2016. 42.She required the plaintiff to concentrate with lunch section to generate a stable income first. When the plaintiff handled the lunch section, the business was very good. From a profit chart for years 2017 and 2018 in her supplemental witness statement, it appears that the business of My Sushi was losing in early 2017 (except February and March). But it starts to make profit from September 2017. PW2 said in court that the income and profit shown in the chart includes both shifts. 43.PW2 also mentioned in her witness statement that the company wishes the plaintiff could be a full-time sushi chef, meaning that he would take up both lunch and dinner shifts. If he could take both shifts, the company is prepared to increase his basic salary to about $38,000, with an increase of $17,000 (which is the basic salary paid to the chef for lunch shift during 2017 and 2018 appearing in her charts). 44.PW2 also said in her witness statement that the duty of the plaintiff is more than a sushi chef. As the company is not part of a food and beverage group, the plaintiff has to be responsible for the daily operation of the restaurant, including design of menu, choice of food ingredient, and collection of customer’s opinion. And in her supplemental witness statement, she said the plaintiff is the general manager of the restaurant. Besides accounting, she would rely on the plaintiff to manage and operate the restaurant, including arrangement of manpower, purchase of food ingredients, wine and drinks, to set the price, to communicate with customers and to supervise the staffs. 45.Pausing here, according to the evidence of PW2, it is quite obvious that the plaintiff is more than a sushi chef with My Sushi. He is at least a sushi chef cum general manager. That is also reflected in his share of bonus in proportion to income of the company mentioned in his employment contract. If indeed the plaintiff cannot work both shifts, it appears that he could take up other duty which could generate income, such as duty of a general manager. And his loss if any must be reduced by the corresponding amount that he could earn from the time spare from working only one shift. I may revisit this point if I found in favour of the plaintiff’s case that he cannot work both shifts. 46.It is noted that the plaintiff does not complain of not being able to work two shifts at Sup 1. His problem is that he need rest after standing for some period of time. It is not clear if he need rest from time to time for one shift or both. I would come back to this point to consider whether he could prove that he could not work two shifts. 47.That’s the plaintiff’s case. The defendant has no factual witness. And before I analyse the evidence adduced by the plaintiff, it is a convenient time to look at the expert evidence. Expert Evidence 48.A joint orthopaedic expert report dated 20 March 2019 prepared by Dr Yeung Sai Hung and Dr Lam Kwong Chin has been adduced. Having analysed the medical report from treating doctors, the experts agree that the plaintiff has neck sprain, back contusion, with left traverse process fracture at L1, L3 and L4 levels. He probably had left transverse process fracture of L1 to L4 and his injuries are compatible with the alleged mode of injury. 49.The experts also agree that the plaintiff did not have actual neurological damage due to spine injury as he did not have corresponding motor neurological deficit and subsequent assessment showed that he had no significant neurological deficit. 50.They agree that the plaintiff had a satisfactory progress after treatments and set out in a table on his recovery progress, summarised from the medical notes and records –
51.Dr Lam is of the view that the prognosis is generally good. The plaintiff has a satisfactory functional improvement within a few months. As a natural course for similar injuries, further improvement is expected. The diffuseness, chronicity and intensity of the complaints are out of proportion to well-healed fractures sustained 4 years ago. There was no objective sign to support his claim. The preservation of lordosis and absence of paraspinal muscle spasm are objective signs that the pain, if any, would be rather mild. 52.Dr Yeung opines that the fracture involves at least three transverse processes and L2 was most likely to be fractured as well. It is a high energy trauma and contribution to adjacent soft tissue injuries, which are not visible on X-ray or CT scan, were likely to be substantial as well. Hence some persistent residual pain would be expected. 53.Dr Yeung agrees that there was no significant displacement of this fracture. X-ray show these fractures united in satisfactory position. Prognosis is favourable as there is no significant distortion of the anatomy that may cause compression of adjacent nerves. 54.Dr Yeung considers that after 4 years from the accident, the fracture and the contusion to surrounding soft tissue have resulted in stiffness of the lumbar spine and persistent lower back pain that reduces his standing tolerance to 15 to 30 minutes. This symptom most likely will persist but are unlikely to increase with time. Residual neck pain is expected to be mild and prognosis is favourable. Later, he commented that the plaintiff may need a rest for 5 minutes after standing for an hour working as a sushi chef. 55.On working capacity, Dr Lam is of the opinion that the plaintiff could return to his work as a chef. The residual back symptom may partly affect his work in efficiency but the adverse effects will be mild and would improve with time. He would not have substantial disadvantage in the labour market or higher chance of losing his job due to the injury. Dr Yeung agrees that the plaintiff should be able to return as a chef but his efficiency at work will be compromised by the limited standing tolerance. He notes that the plaintiff has returned to work as a chef from September 2016. His problem is that he was required to stand continuously for over 2 hours. As said in the report, Dr Yeung recommended short breaks of about 5 minutes after standing for an hour. 56.Both experts agree that his activities of daily living are unlikely to be affected but he may have limitation with heavy lifting. 57.The key issue in disagreement between the experts is the seriousness of the back pain and how it affects his working capacity. It is agreed that the plaintiff have fracture of L1, L3 and L4, and probably L2 have fracture. 58.Ms Kei invited this court to adopt the opinion of Dr Yeung that the injury would affect the working capacity of the plaintiff. As set out above, taking the opinion of Dr Yeung to the highest, the plaintiff has some inefficiency in that after for one hour, he has to have rest for five minutes. This is in fact consistent with the evidence of the plaintiff when he work at Sup 1. The question I have to answer ultimately is, assuming I accept the evidence of Dr Yeung that the plaintiff has to take a break five minutes every hour, and take into account the evidence of the plaintiff, would that be sufficient evidence to prove that the plaintiff could not return to work for two shifts. 59.Two reports have been obtained from the psychiatrists, Dr Sung Wing Kuen and Dr Law Wun Tong. It is agreed that the psychiatric problem now suffered by the plaintiff is caused by the accident. Dr Sung diagnosis PTSD and adjustment disorder, while Dr Law diagnosed the plaintiff to suffer from adjustment disorder with mixed anxiety depressed mood. While they have different view on the diagnosis, they both agree that it is caused by the accident. 60.As analysed by the psychiatrists, the medical record shows that starting from November 2014, the plaintiff suffered from depressive mood, precipitated by persistent physical pain and disability, delayed speech development of his son, financial stress, and worry of future. He had irritability, loss of appetite, reduced energy and insomnia. He lost his interest in sex and his usual hobby, such as playing video game. He had temper outbursts at home that make his marital relationship deteriorated. In December 2014, around Christmas, the plaintiff had a quarrel with his wife that led to physical violence against her. He drove his wife and son away from home. The plaintiff describes his behaviour was completely different from his character and personality. 61.The plaintiff was referred to receive psychiatric treatment by the orthopaedic clinic. His condition improved after taking medication. His pain reduced and his sleep improved. His symptoms of depression and anxiety subsided partially. The plaintiff reported some side-effects from the medicine including dizziness, headache, increased appetite and weight gain. The plaintiff also received psychological intervention. 62.On mental impairment, Dr Sung consider it to be in the mild to moderate range. Dr Law is also of the view his impairment is of mild severity. Both experts agree that the plaintiff could return to his pre-accident work with some physical disability. 63.Ms Kei submits that the diagnosis of Dr Sung is supported by the medical records and should be preferred. 64.Mr Gidwani submits that, with the assistance of the surveillance video, the plaintiff’s psychiatric condition is minor. It can be shown that he could communicate well with customers and conversed with them during service. When the plaintiff was being cross-examined in court, he also appears to be claim and communicate well. I shall determine the psychiatric injuries of the plaintiff hereinafter. Back Pain and Working two Shifts – Discussion and Ruling 65.The first issue for my determination must be the existence of his back pain and the severity. This would affect my finding on PSLA and his loss of earning. 66.Mr Gidwani submits that there is no psychiatric expert evidence to suggest that he is not mentally fit to work as a sushi chef, which I agree. And I believe the main problem alleged by the plaintiff is orthopaedic injuries, particularly on pain. There is no suggestion that his residual psychiatric condition affected his working capacity, though the psychiatric injury would be taken into account on assessing his PSLA. 67.Mr Gidwani submits that there is no objective sign to support the plaintiff’s subjective complain of back pain. He refers to the judgement given by Master Leong (as he then was) in Yuen Macie v Yeung Ying Kit HCPI 528 of 2015. The learned Master said a complaint of pain is essentially subjective. It is up to the patient to inform the doctor whether there is or isn’t pain. But the fact that there is no objective evidence does not automatically mean that the plaintiff is lying about his subjective symptom. In cases where there is a lack of supportive objective evidence at the experts’ examination and investigation, the court shall interpret the plaintiff’s subjective symptoms carefully taking into account all the credibility of the plaintiff. 68.I believe there is no disagreement with the observation of the learned Master. The court has the difficult and solemn duty to interpret all evidence to making findings on the injury, including the oral evidence of the plaintiff himself, the medical reports from treating doctors and the expert opinion. 69.Reading from the opinion given by experts in the joint reports, I agree with Ms Kei and accept the plaintiff still has certain degree of back pain. Yet I have to decide the severity of the pain. The different view of the experts on severity is also noted. The important issue for determination is whether he cannot work for two shifts. 70.The plaintiff complains that he still has pain and could not work for two shifts of duty. As said, Dr Lam opines that he could return to his original work. And according to the opinion of Dr Yeung, who also agrees that the plaintiff could return to his pre-accident work, but added that the plaintiff needs 5 minutes break or short rest after standing for an hour. I cannot anticipate significance disturbance to his work. There is no medical opinion to support the plaintiff’s claim that he cannot work for two shifts if rest as suggested by Dr Yeung is provided. I doubt very much that a sushi chef working at the sushi counter do not have any opportunity to sit and take brief rests after an hour of work. 71.Further, there is one very important piece of evidence from the plaintiff himself to assess his working capacity. After the sick leave, he has in fact been able to return to work as a full-time chef at Sup 1 for more than 12 months, when he handled two shifts. It is his evidence that he had to sit down during working for rest. The plaintiff claims that because of the requirement to rest, he has conflicts with his employer at Sup 1. Yet the fact remains that he has not been dismissed by employer. In fact, he has been able to maintain the job for more than 12 months with a slightly higher monthly salary. This points to minimal disturbance to the operation of the restaurant by the rests he has to take. 72.There is no mention that he needs the break or rest only for the second shift and I take it that he did take some rests during both shifts. This must be in line with the medical opinion of the orthopaedic experts. As according to Dr Yeung, he requires a break of 5 minutes after standing for one hour. Taking the plaintiff’s case to the highest, it is not a situation that he could not attend to a second shift, but that he would require some arrangement for rests during work. 73.Ms Kei submits that, according to the consultation summary of West Kowloon Psychiatric Clinic on 19 October 2015, he complained of back pain at times, barely improved with analgesics. He felt not able to concentrate on work at times, but cope with work overall because of supportive company and colleagues, can take rest during work. She submits that the complaint of the plaintiff is genuine. But this also show his physical ability is capable to work both shifts, with some rest arranged. 74.Another important evidence is his current job. And when working with My Sushi, the plaintiff did not mention about the need to have rest for the night shift or that he could not handle the work in his witness statement. I bear in mind the evidence that the dinner time indeed run from 6 pm to 10 pm, and he said he has to stand for 4 hours. This would either show that he could attend to long periods of standing, or arrangement could be made for him to have reasonable breaks. He is also the general manager of the restaurant and PW2 is very satisfied with his performance, confirming that again in court. There is no evidence that the break would affect his performance or the business of My Sushi. In fact, his employment terms has been improved by the supplemental contract with better bonus in 2018 as mentioned above. 75.If arrangements could be made for him to take rest from time to time during night shift, why such arrangement could not be available for the lunch shift, bearing in mind that the majority of the business for lunch is lunchbox and takeaway services. No evidence has been introduced why the arrangement of rest is not possible for the lunch shift. 76.I also bear in mind the appearance of the plaintiff in the surveillance video. I agree with Mr Gidwani that the plaintiff has no sign of pain even at work in the time captured by the video. I accept that surveillance videos are not continuously capture and not covering all period. I only adopt it to the extent that it does not show the pain the plaintiff complains during the periods being covered by the video. 77.Taking all this into account, I found that the plaintiff may have some residual pain at his waist and back. But I do not believe his evidence that the pain is so serious that he cannot return to work for two shifts. His working capacity may be affected as suggested by Dr Yeung but some break and rest for 5 minutes every hour would be sufficient. This is a loss which I shall take into account when assessing his loss of working capacity. But I found against the plaintiff’s claim that he cannot work for two shifts, especial for My Sushi. 78.With this finding, I come to rule on each of the damages claimed. PSLA 79.I begin with PSLA. 80.Ms Kei in her closing submits that the plaintiff is still suffering from residual back pain and has to take painkiller medication daily. He could only sleep, with the aid of medication, for 4 to 5 hours a day. And as a result of the injury, the plaintiff could no longer ride a bicycle. It is submitted that the plaintiff was a positive and optimistic person before the accident. He now become pessimistic. 81.Before the accident, the plaintiff had a harmonious relationship with his wife. After the accident, his relationship with his wife deteriorated. It is also reported in the joint psychiatric report that the plaintiff could only sleep for 3 to 4 hours every night and lost his interest in sex. The plaintiff could no longer hold his son now age 6. 82.Mr Gidwani submits that the plaintiff has recovered satisfactorily on his orthopaedic injuries. Both orthopaedic experts agree that the plaintiff had a satisfactory recovery progress. And both orthopaedic experts agreed that the plaintiff should be able to return to work as a sushi chef, and Dr Yeung considered the plaintiff had been copping well from September 2016. Any problem with standing tolerance can be tackled with short breaks of 5 minutes after standing for an hour. I agree and I have found accordingly as above. 83.Having considered the submissions of counsel, and taking into account the expert reports and other medical evidence I mentioned herein above, I come to the finding that the plaintiff do have some residual back pain. Yet, as I have analysed above, I found the plaintiff has exaggerated the effect on his working capacity. There could be some adverse effect on his life with family especial before he received treatment from psychiatrists. I also agree with Mr Gidwani that the residual psychiatric condition is mild. 84.Ms Kei invited me to follow the finding on PSLA in Lam Fuk Pau v Contain Curtain Wall Engineering Limited & Another, HCPI 488/2004, unreported 26 April 2005 when an award of $330,000 was granted for PSLA. The injury involved fracture of the right transverse processes at L2, L3 and L4 vertebrae. It is submitted that the plaintiff’s injury is more serious. And the level of PSLA what should be higher than the award in 2005. As said by Bharwaney J in Slater v Commission of Police [2018] 4 HKC 1, the award of general damages for PSLA should be adjusted in accordance with the inflation rate. 85.Taking into account the inflation, Ms Kei submits that the award in Lam Fuk Pau’s case would be HK$496,000 today. 86.Ms Kei also refers to the judgement of Mr Recorder Coleman SC (as he then was) given in Chan Long Kin v Lam Kam Cheong, HCPI 1186/2014, unreported, 17 November 2016. The plaintiff there was a motorcyclist knocked down by a private car. He suffered fractures of right superior pubic ramus, L5 lumbar vertebrae transverse process, and left distal fibula. He also suffered from subclinical PTSD and obsessive compulsive disorder. The PSLA awarded was HK$475,000. And the updated award after taking into account inflation would be HK$508,000. 87.Ms Kei submits that the award of HK$520,000 is reasonable for the plaintiff. 88.Mr Gidwani submits that, given the satisfactory recovery of the plaintiff, and his limited residual impairments, an award of not more than HK$100,000 should be reasonable. 89.He refers to a number of judgment set out in paragraph 39 of his closing submission which I do not repeat herein. The injuries are similar and the PSLA awarded ranged from $230,000 to $340,000. 90.I am of the view that $100,000 is very much on the low side. In assessing his loss, I take into account the recovery of the plaintiff, and that his psychiatric condition is mild. He is able to return to work. He may have some period of family crisis which is controlled by medication. The surveillance video further confirm his could manage the relationship with his son. With inflation in mind when consider the judgments refer by counsel, I found that an award of $400,000 is a reasonable sum for the claim for PSLA. Loss of Earning & MPF 91.There is no dispute on the period of sick leave and hence the plaintiff should be fully compensated for his loss for this period of time. Although Mr Gidwani questioned the plaintiff on his pre-accident earnings, he is prepared to use his pre-accident earnings, ie HK$20,310 per month to assess his loss. Ms Kei seeks to use the average between the pre-accident and post-accident earnings at Sup 1 to assess the loss during the sick leave. However, there is no evidence from the plaintiff on the reason for this increase in his basic salary, or why he anticipates he could have the salary increase has he not had the accident. According, I reject the calculation of Ms Kei and adopt the calculation of Mr Gidwani at $77,837.60 ($20,310 x 7 x 1.05 – 71,440.90). 92.As I found that the plaintiff could return to work for two shifts, I found that he could return to work at Sup 1 or in similar capacity after sick leave, with slight adjustment for break/rest. I do not accept his claim that he could not continue with his work at Sup 1 due to conflict at work. And if there is such conflict, I am not convinced that it is caused by the injury as the employer has not dismissed him. Hence there should not be any compensation for his loss of earning when he resigned from work. 93.The plaintiff also claims his loss when he was unemployed for ½ month of June 2016 after he left Sup 1. From mid-June to mid-July 2016, he worked as a part time chef in a Chinese bakery. He has worked for a Japanese restaurant from mid-July 2016 to mid-August 2016 when he resigned. But he has signed the new contract with My Sushi on 1 August 2016, before he resigned from the Japanese restaurant. This further discredit his evidence. I do not believe his evidence that he resigned from Sup 1 because he could not handle two shifts and there should be no award for this period. 94.The main argument on his loss of earning after joining My Sushi is whether he could earn more if he could work both shifts. His income is higher than his last salary from Sup 1. Mr Gidwani submits that the plaintiff suffers no loss. 95.Ms Kei refers to the decision of the Court of Appeal in Li Wan Choi v Choi Wan Hing & Anor [2000] 4 HKC 549. While the plaintiff earns more, he may still claim for the loss on the basis that he could not earn the full salary of a fit person for his job, which he cannot earn because of his residual disability as a result of the accident. I agree with the principle. 96.However, as I have explained above, I am not convinced by the evidence of the plaintiff and PW2 that he cannot return to work for the lunch shift. And I have found he could return to work for both shifts, it is his choice to work for one shift and he has not attempted to work for two shift on joining My Sushi. He does not suffer any loss of earning as claimed as he cannot prove that he cannot work the additional lunch shift is due to his injury. 97.Even if he may later have to work for other employers, I maintain my finding that he has not shown he could not work two shifts, and the claim for not able to earn more by taking a second shift is not supported by credible evidence. Anyway, there is no evidence as to earning between a chef working two shifts and a chef working one shifts. For this assessment, Ms Kei relies entirely on the expected increase of earnings at My Sushi as said by the plaintiff and PW2. 98.Save for the sick leave period, there is no award for any loss as claim. Loss of Earning Capacity 99.Mr Gidwani submits that there should be no award for loss of earning capacity. But based on my finding, the plaintiff has residual pain. While PW2 is clearly a reasonable employer, in the event that he has to look for a new job, he would have some disadvantage in look for a new job. The claim by the plaintiff at $100,000 is moderate and I allow the application. Special Damages 100.The medical expenses of $15,000 and travelling expense of $1,500 have been agreed and I assess accordingly. 101.A total of $66,800 has been claimed in the Further Revised Statement of Damages. This also includes the repair costs for his bicycle. The defendant only disputes the purchase of a hydrotherapy machine of $15,790, tonic food expenses of $9,300, and essential oil and bath salt of $6,600. The plaintiff has not explained the need for these items in his witness statement or his oral evidence. In the circumstances, he fails to show that the hydrotherapy machine, essential oil and bath salt are reasonably required for his recoverable. I would therefore make adjustment for the claims under these 3 items. For tonic food, a receipt has been produced but there is no medical evidence in support that it is required. And given the evidence on injury before me, I am prepared to allow $5,000. 102.The plaintiff also claims post trial expenses as pleaded in the Further Revised Statement of Damages. Ms Kei claims on the basis of $1,000 per year, and submit a multiplier of 27.59 would be appropriate. 103.The orthopaedic experts are of the view that the plaintiff has reach maximal medical improvement and no further institutional treatment is required. Dr Sung, one of the psychiatrist considers that 2 to 3 years of further psychiatric treatment is desirable. The other psychiatrist Dr Law considered that the plaintiff has received over 3 years of psychiatric treatment and has long reached maximal medical improvement. He would recommend 6 sessions to consolidate the improvement made and for the medication to be gradually tapered off. 104.In light of the opinion of the experts, I found that a sum of $10,000 should be awarded to cover any outstanding medical treatment to consolidate the improvement. Interest 105.I will allow interest at 2% p.a. from the date of issue of the Writ to the date of assessment on general damages; and special damages at half interest rate from the date of the accident to the date of assessment. Summary
106.There be an order nisi that the Plaintiff should have his costs of the assessment against the Defendant with certificate for counsel for the hearing. As the award is below $1,000,000 (the jurisdiction of the District Court when the Writ was issued) , the costs should be taxed according to District Court scale. There be Legal Aid taxation for plaintiff’s own costs. 107.Finally, I should thank both counsel for their assistance.
Ms Carmen Kei, instructed by Fairbairn Catley Low & Kong, for Plaintiff Mr Victor Tulsi Gidwani, instructed by Y C Lee, Pang & Kwok, for Defendant |
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