B K Anil Kumar v. J V Fitness Ltd (Trading As California Fitness)
Read the full judgment text of HCPI 311/2015 on BabelCite. This High Court CFI judgment was delivered on 31 March 2022.
1. The Plaintiff encountered an accident (“Accident”) on 8 July 2014 when he was opening the door of the steam bath room of the fitness centre (“Premises”), with the ceiling structure got loosened and fell on the Plaintiff.
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HCPI 311/2015 [2022] HKCFI 946 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 311 OF 2015 ________________________ BETWEEN
________________________ Before: Master Rita So in Court Dates of hearing: 8 and 9 December 2021 Written closing submissions from the Plaintiff: 16 December 2021 Written closing submissions from the Defendant: 16 December 2021 Written supplemental closing submissions from the Defendant: 23 December 2021 Date of Judgment: 31 March 2022 _________________________________ ASSESSMENT OF DAMAGES _________________________________ Background 1.The Plaintiff encountered an accident (“Accident”) on 8 July 2014 when he was opening the door of the steam bath room of the fitness centre (“Premises”), with the ceiling structure got loosened and fell on the Plaintiff. 2.The Defendant was the occupier of the Premises and was operating the fitness centre known as California Fitness at all material times. 3.The Plaintiff initiated the present proceedings on 26 March 2015. Notwithstanding the winding up order against the Defendant in 2016, leave was granted by consent that the Plaintiff be at liberty to continue the present proceedings against the Defendant. 4.On 28 December 2020, interlocutory judgment on liability had been entered in favour of the Plaintiff, leaving damages to be assessed. 5.This is the hearing for assessment of damages. The main dispute by the Defendant is the credibility of the Plaintiff, which will affect the consideration and ruling on the various heads of damages. 6.The Plaintiff gave evidence in court. He also called a witness, Mr Gurung Ram Bahadur to give evidence in relation mainly to whether the Plaintiff had been unconscious shortly after the Accident. Both the Plaintiff and his witness gave evidence in court with an interpreter assisting. 7.The Plaintiff adopted his witness statement dated 2 October 2015 (“Witness Statement”) and his supplemental witness statement dated 28 March 2020 (“Supplemental Witness Statement”) as his evidence-in-chief. The Plaintiff’s witness adopted his witness statement dated 23 November 2015 as his evidence-in-chief. 8.The Defendant requested to play 2 clips of videos at the hearing, which was agreed by the Plaintiff. The DVD with the videos are enclosed to the surveillance report, showing the Plaintiff worked on 15 July 2014, 25 July 2014, 1 August 2014 and 5 August 2014 (“Surveillance Report”). The Surveillance Report and the DVD were disclosed in the Defendant’s List of Documents dated 30 June 2016 and was provided to the Plaintiff by a letter dated 12 April 2017. The Plaintiff agreed that he was the person shown in the DVD, helping out at the Restaurant on 15 July 2014 and working part-time on the other 3 days. The Plaintiff’s case 9.The Plaintiff was born in Nepal on 22 July 1972 and was 41 years old at the time of the Accident. He was aged 49 at the hearing. He had completed up to form 5 level of education in Nepal and he came to Hong Kong in 1997 as a dependent of his wife, who was living in Hong Kong. He has got the right of abode and he has the right to work in Hong Kong. 10.The Plaintiff’s mother tongues are Nepalese and Hindi. According to the Plaintiff, although he has lived in Hong Kong for many years, he can only speak little English and Cantonese, not fluently. 11.The Plaintiff is married and he has two marriages. He is now living with his family in Hong Kong. He has 2 sons, with the elder son (born in 1999) in Nepal, taken care of by his ex-wife, and his younger son (born in 2016) in Hong Kong. 12.The Plaintiff had various types of work experience in Hong Kong, including working in construction sites as labourer, security guard and restaurant manager. At the time of the Accident, it is the Plaintiff’s case that he was working as a manager in a curry house restaurant (“Restaurant”), earning a monthly salary of HK$25,000. 13.According to the Plaintiff, he was in good health before the Accident. 14.On the date of the incident, the Plaintiff was about to finish the steam bath session together with 2 of his friends inside the steam bath room in issue. When he was opening the door and intended to leave the room, the ceiling structure of the said room suddenly got loosened and fell onto his head and shoulder. He fell on the ground and landed his buttock to the ground. As a result, the Plaintiff lost his conscious and he suffered multiple injuries. 15.The Plaintiff was sent to hospital by ambulance. Upon admission to the Accident & Emergency Department (“A&E”) of Kwong Wah Hospital, the Plaintiff was examined and physical examination revealed abrasions over his left shoulder and right hand. Tenderness was elicited over the Plaintiff’s left shoulder. Wound management was performed on the Plaintiff and he was discharged from hospital with sick leave granted to 11 July 2014. 16.The Plaintiff re-attended the Accident & Emergency Department of Kwong Wah Hospital on 11 July 2014, but left after registration without receiving treatment. According to the Plaintiff, he was not attended to after 8 hours and therefore he went home. 17.On 12 July 2014, the Plaintiff attended the A&E of North Lantau Hospital. He complained of dizziness and left shoulder pain after the injury on 8 July 2014. He was treated and discharged. Sick leave was granted to 16 July 2014. He was referred to the Physiotherapy Department of North Lantau Hospital and the first physiotherapy treatment was commenced on 8 September 2014. 18.On 17 July 2014 and 26 July 2014, the Plaintiff attended the Orthopaedic & Traumatology (“O&T”) clinic of St Teresa’s Hospital. It was recorded in paragraph 1 of the medical report of Dr Raphael W N Lo dated 17 January 2020 that the Plaintiff “sustained head and left shoulder contusion injury by a falling false ceiling while at work on 8 July 2014. He had no loss of consciousness.”. Sick leave from 17 July 2014 to 9 August 2014 was granted. 19.The Plaintiff consulted a general practitioner, Dr Keung, on 22 July 2014 complaining of vertigo on lying down and pain in the left upper back. The diagnosis was left shoulder injury. 20.Private MRI was done on 23 July 2014. With the Radiological Report by Dr Jimmy Li of St Teresa’s Hospital dated 24 July 2014, the findings of the Plaintiff include mild ill-defined T2 hyperintense scalp swelling at the right occipital region, measuring 3.6 cm x 0.2 cm in transverse diameter, consistent with scalp edema and hematoma. 21.On 10 September 2014, the Plaintiff attended the O&T Department of Ruttonjee Hospital and complained of left shoulder and upper back pain. 22.The Plaintiff first attended the Ear, Nose and Throat clinic of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on 6 October 2014, having been referred by the neurosurgeons. He complained of repeated vertigo with sudden motion of his head especially on looking up and mild hearing impairment of left ear as well. 23.As stated in the report by Dr Kwan Cheuk Lun dated 10 December 2014, the Plaintiff was last reviewed on 24 November 2014 at the Department of Neurosurgery of PYNEH during which he claimed his dizziness had improved and his shoulder problem would be followed up by the orthopaedic surgeon in Ruttonjee Hospital. During consultation, he claimed there was no loss of consciousness. He had no convulsion, numbness, hearing or visual deficit but left shoulder, neck and back injuries. He complained of headache and vertigo related to motion after head injury. A further neurosurgical follow-up was arranged in 4-weeks’ time. 24.Operation was done on the Plaintiff of his left ear on 31 January 2019, as there was hearing loss of the left ear due to otosclerosis. 25.Sick leave had been given to the Plaintiff from 8 July 2014 to 1 June 2015. 26.As revealed in the Plaintiff’s Supplemental Witness Statement, during the sick leave period, he returned to work at the Restaurant as a part-time manager on 21 July 2014 until 30 November 2014, earning a reduced salary of HK$10,000 per month. He then changed to work as a jewellery repairer from 1 December 2014 to 31 August 2015. But the business and income being a jewellery repairer was not good (earning HK$5,000 per month), and therefore he also returned working at the Restaurant in January 2015 until October 2015 twice a week, earning a salary of HK$58 per hour for 5 hours per shift, which amounted to about HK$2,320 per month. The expert evidence 27.Leave had been granted for the parties to adduce expert evidence in the areas of (i) orthopaedic; (ii) neurological; and (iii) otorhinolaryngological (“ENT”). The expert reports have been adduced and parties have agreed that the following expert reports are to be adduced without calling the experts :-
Neurological Report 28.According to the Neurological Report, Dr Yu examined the Plaintiff, who told him details about the Accident, his current complaint and his social background, including when the Plaintiff resumed work. 29.On the examination of the Plaintiff dated 27 November 2015, in paragraph 12 of the Neurological Report, Dr Yu found the Plaintiff : -
30.Dr Yu’s views in paragraphs 13 to 23 of the Neurological Report are summarised below :-
Joint Orthopaedic Report 31.Dr Wong for the Plaintiff and Dr Yip for the Defendant jointly examined the Plaintiff on 7 April 2015. They both agreed that the Plaintiff’s injuries were adequately treated and rehabilitated by the medical staff and therapists. They believed that the Plaintiff has reached the state of maximal medical improvement and they do not recommend further medical or surgical intervention for his orthopaedic conditions. 32.However, they have diverging views of various aspects and conditions of the Plaintiff, which are summarised below :-
ENT Report 33.In the ENT Report, Dr Chu for the Plaintiff and Dr Lo for the Defendant recorded, after judging from the medical reports provided to them, the Plaintiff’s history and the physical findings of the assessment, that “there was either transient or no loss of consciousness after the Accident. No record of physical examination of the head was recorded in the consultation of the A&E Department of Kwong Wah Hospital. There was no retrograde amnesia, vomiting nor ataxia. Mild scalp swelling and bruises over the left head was noted in consultation of Neurological Clinic of PYNEH in September 2014. MRI of brain on 27 July 2014 revealed mild ill-defined T2 hyperintense scalp swelling over the right occipital region, measuring 3.6 cm x 0.2 cm in transverse diameter, consistent with scalp edema and hematoma. No intracranial lesion was identified.” 34.Dr Chu and Dr Lo assessed the Plaintiff jointly and both of them jointly concluded that the Plaintiff probably suffered from mild head injury as a result of the Accident. 35.They recorded that the Plaintiff told them that he noticed deterioration of his left ear hearing sometimes after the Accident, although he was not sure about the exact time of onset of the symptom. From the operative finding on 31 January 2019 (ie the date of the operation of the left ear), the conductive element of the hearing loss of the left ear was due to otosclerosis. 36.Dr Chu and Dr Lo considered that the treatment of the Plaintiff by the ENT Unit was appropriate. No further surgery was indicated for the mild residual conductive hearing loss. The Plaintiff does not notice any change in hearing ability of the right ear after the Accident. The mild hearing loss of the right ear was probably due to pre-existing condition and may not be related to the Accident. 37.The experts “cannot be certain about the causal relationship of the patient’s hearing loss of his left ear and the accident. The percentage of permanent disability caused by the hearing loss is estimated for reference by the parties involved. They opined that “the hearing loss of the right ear was due to pre-existing condition and therefore should not be taken into account in calculation of the permanent disability due to the injury”. They estimated the percentage of permanent disability of the whole person would be 2%. 38.The experts further opined that “the tinnitus of his left ear is mild and does not affect [his] sleep or daily activities. [They] do not think that this symptom will amount to any permanent disability of the patient”. [They] agreed that the ear problem would not adversely affect [his] ability to perform job as a general labourer, manager in a restaurant or running a small business in retail. However, the hearing loss of the patient will affect his choice in future jobs that required high hearing sensitivity or binaural hearing, such as music related jobs.” 39.Both experts considered that, as far as the Plaintiff’s ear condition is concerned, a total sick leave period of about 4 weeks is appropriate. The Plaintiff’s claim of damages 40.Mr Hui, counsel for the Plaintiff, submitted that as a result of the Accident, “the Plaintiff suffered, amongst others, head, left shoulder, neck and back injury”. The Plaintiff “also suffers hearing problems in his left ear after the Accident”. 41.The Plaintiff filed his revised statement of damages on 16 February 2016 (“Revised Statement of Damages”) and filed his re-revised statement of damages on 14 March 2020 (“Re-Revised Statement of Damages”). Both documents were drafted by the same counsel (who is not the counsel for this Assessment of Damages), with the same firm of solicitors and the same interpreter to interpret the content to the Plaintiff. 42.According to paragraph 2.28 of the Re-Revised Statement of Damages, the Plaintiff has been “suffering from permanent disabilities including but not limited to the followings :
43.As summarised in paragraph 8 of the Re-Revised Statement of Damages, the Plaintiff claims :-
44.After the hearing, in the closing submissions, the Plaintiff revised his claim, as follows :-
Credibility of Plaintiff 45.The Defendant had admitted liability in December 2020. The credibility of the Plaintiff is particularly relevant for the consideration of whether the Plaintiff had exaggerated his injuries and had concealed the fact that he had resumed work. The ruling of whether the Plaintiff’s evidence is reliable affects the consideration for all heads of damages claimed, and also on whether the hearing loss of the left ear was caused by the Accident. 46.In the consideration and assessment of the Plaintiff’s credibility and the reliability of the Plaintiff’s evidence, I have reminded myself of the legal principles as summarised in Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009, 8 April 2014, unreported, relied on by Mr Hui, :-
47.It is the Defendant’s case that the Plaintiff is a proven liar. He lied in statements verified by the statement of truth and he lied to treating doctors and experts. 48.As summarised in the closing submissions of Mr Ho, counsel for the Defendant, the Plaintiff lied in statements verified by the statement of truth, as follows :-
49.Mr Ho further submitted that as the Plaintiff now admitted that he had resumed working since 21 July 2014, though on a part time basis as claimed by the Plaintiff, the following medical records must be false (with the false parts underlined) :-
50.Mr Hui submitted that the Plaintiff is an honest and reliable witness. Despite there were mistakes in his Witness Statement and the Revised Statement of Damages which he had frankly admitted, the Plaintiff did not lie about his work or medical conditions from the Accident. Mr Hui further submitted that some mistakes could have occurred because of language or communication problem. 51.There are clearly mistakes and inaccurate information, if not blatant lies, in the Witness Statement and the Revised Statement of Damages in the areas as summarised in paragraphs 48 and 49 hereinabove. I have to consider in view of the circumstances and the Plaintiff’s evidence as a whole, whether the Plaintiff is credible and reliable. 52.It is a matter of fact that the Plaintiff’s Re-Revised Statement of Damages and the Supplemental Witness Statement were filed on 14 March 2020 and 28 March 2020 respectively, which were after the Surveillance Report together with the DVD showing that the Plaintiff had been working at the Restaurant were provided to the Plaintiff. Even if some of the content about work and income has been subsequently corrected, revised and clarified, I am of the view that these “mistakes” and “inaccuracies” had greatly discredited the reliability and credibility of the evidence of the Plaintiff. 53.There is no satisfactory explanation from the Plaintiff as to why the mistakes and inaccuracies in the Plaintiff’s Witness Statement and the Revised Statement of Damages were made in the first place. It is noted that the same firm of solicitors, with the same interpreter, were engaged. 54.It is of great concern that the Plaintiff had omitted the fact that he had resumed working, though on a part-time basis as alleged, in his Witness Statement and Revised Statement of Damages. It is only in his Supplemental Witness Statement and Re-Revised Statement of Damages, both filed in March 2020, that details of his resuming work since 21 July 2014 were revealed. Upon being cross-examined, the Plaintiff made some explanation, but there is no satisfactory answer as to why the important information about work had been omitted in the first place. Even if accepting the Plaintiff’s evidence that he had not intentionally or consciously telling lies at the time when he made the Witness Statement and the Revised Statement of Damages, important information about work made therein was omitted. On balance of probabilities, I accept that the Plaintiff made the revisions only because he knew he had been seen working at the Restaurant, as shown in the Surveillance Report and the DVD. I am of the view that the Plaintiff’s evidence is not reliable and the credibility of the Plaintiff is greatly discounted. 55.Further, I will consider other criticisms of the Plaintiff’s evidence. 56.In relation to the alleged false account the Plaintiff had made to medical practitioners, which are evidenced in the medical records, as submitted by Mr Ho and summarised in paragraph 49 hereinabove, Mr Hui submitted that the Plaintiff had firmly denied those allegations of making false accounts under cross-examination. He submitted that the Plaintiff explained in re-examination that none of the doctors he consulted gave him an oral summary of what the Plaintiff had told the doctors during consultation or examination. In other words, there is no way for the Plaintiff to verify whether the doctors’ medical notes or the experts’ record of the accounts given by the Plaintiff are accurately recorded or not. Therefore, it was unfair and unsafe to suggest that the Plaintiff is a liar simply because there are some mistakes in the medical notes. 57.It is fair to say that I cannot rule out entirely the possibility of doctors and experts making mistakes in their records. While it is true to say that medical records containing false or inaccurate information do not necessarily or automatically attribute to the fault of the Plaintiff and the Plaintiff cannot simply be concluded as a liar as a result, I have reservation as to the strength of Mr Hui’s submissions. 58.With the circumstances of this case, there are mistakes and inaccurate information in various medical records (with details referred to in paragraph 49 hereinabove) by several doctors on different occasions. Coincidentally, all are related to the aspect of whether the Plaintiff is able to work, whether he has resumed work and the work related aspects. It is devoid of logic and inherently improbable that the different doctors and experts involved were making up information. 59.What is of more concern is that some of the alleged mistakes were made by the experts in the expert reports (as explained in paragraphs 49(d) and (e) hereinabove. The Defendant had clearly indicated their dispute in the Answer to Re-Revised Statement of Damages. If the Plaintiff or the Plaintiff’s solicitors, having read the expert reports, notice that there are genuine mistakes made by the doctors in understanding the Plaintiff’s versions and there are such mistakes which will turn on the credibility of the Plaintiff, the Plaintiff should have asked for calling the experts to give evidence to clarify the matter, so that the Plaintiff’s case can be put to the experts. 60.About the possibility of language or communication problems, as suggested by Mr Hui, I notice that in 2 of the instances as in paragraph 49(d) and (e) above, there were interpreters attending. Although I cannot rule out the possibility that some mistakes or miscommunication problems could have occurred in other instances without interpreter attending, I have the following observations :-
61.With my observation and analysis above, I have reservation of the reliability of the Plaintiff’s evidence. I am of the view that the Plaintiff had tried to conceal the fact that he resumed working from 21 July 2014, exaggerated his injuries and inflated the damages claimed. In the consideration of the evidence of the Plaintiff in other aspects that I’ll analyse below, I remind myself to be cautious in analysing those evidence from the Plaintiff which relies only on subjective evidence, without any contemporaneous documents in support. 62.I so remind myself when I consider (A) the seriousness of the injuries suffered by the Plaintiff; (B) whether the Plaintiff had loss of consciousness; (C) whether the loss of hearing was caused by the Accident; and (D) the reasonable days of sick leave. (A) The seriousness of the injuries suffered by the Plaintiff 63.As many complaints of injuries suffered by the Plaintiff are subjective in nature, with my analysis aforesaid, I am of the view that the injuries suffered was not as serious as alleged by the Plaintiff. 64.In relation to the Neurological Report, I accept that the Plaintiff has suffered a mild head injury, but I have reservation as to whether the Plaintiff also suffered post-concussional syndrome. Dr Yu formed the view that the Plaintiff “probably has the post-concussional syndrome as evidenced by the symptoms of headache, dizziness and subjective impairment of memory”. With my analysis that the Plaintiff’s evidence is not reliable, some of the subjective symptoms could have been exaggerated. I have reservation whether the Plaintiff suffered post-concussional syndrome at all. Even if he did, it would only be mild post-concussional syndrome. 65.In relation to the Joint Orthopaedic Report, there are diverging views of Dr Wong and Dr Yip, as summarised in paragraph 32 hereinabove. Dr Yip explained the 3 reasons why he formed the view that there is exaggeration and magnification by the Plaintiff :-
66.It is noted that Dr Wong did not rebut in the Joint Orthopaedic Report the views of Dr Yip as to why he formed the view that the Plaintiff had exaggeration and magnification. 67.After consideration of all the evidence of the Plaintiff as a whole and the analysis by Dr Wong and Dr Yip, I prefer the evidence of Dr Yip. With the inconsistent versions of whether the Plaintiff had loss of consciousness, I put more weight to the more contemporaneous records of document, before the Plaintiff initiated the present proceedings. More consideration about whether the Plaintiff had loss of consciousness will be considered in paragraphs 73 to 76 below. 68.Further, in relation to the fallen ceiling, which will certainly have an impact on the seriousness of the injuries, I notice that there is no discovery of the details of the fallen ceiling. There is no sufficient evidence from the Plaintiff or the Plaintiff’s witness about the weight or size of the fallen ceiling. According to the medical notes from Dr Keung dated 22 July 2014, it was a “false ceiling”. According to paragraph 4 of the Neurological Report, it was “a metal ceiling structure (10 x 10 feet) feel upon him and hit the left side of his head (from a hight of about 3 feet) and left shoulder.” There was a photo with the fallen ceiling, shown in a newspaper cutting provided by the Plaintiff, which was an interview of the Plaintiff by a reporter a few days after the Accident. 69.Mr Hui in the closing submissions commented that with the assumption made by Dr Yip on the weight of the ceiling, Dr Yip is more at risk of grossly underestimating the impact of the Accident on the Plaintiff. He further submitted that there is only a photo of the false ceiling from a newspaper cutting and objectively speaking, from the photo, the collapsed ceiling does not seem to be of very light weight. 70.I am of the view that there is equally no basis for Mr Hui to form any conclusion of the weight of the collapsed ceiling, just based on the photo in the newspaper cutting. At the end of the day, it is for the Plaintiff to prove case. It is up to the Plaintiff not to adduce any evidence as to the weight and size of the ceiling, which fell onto him. 71.About the hearing problem of the Plaintiff, in the Plaintiff’s Supplemental Witness Statement, when he explained the reasons why he did not agree he can return to work as a restaurant manager, he stated that :-
72.I refer to paragraphs 33 to 39 hereinabove which I have summarised the ENT Report. Based on the examination on the Plaintiff by the ENT experts on 9 October 2019, both experts had agreed to the conclusion that the ear problem of the Plaintiff would not adversely affect his ability to perform job as a general labourer, manager in a restaurant or running a small business. The Plaintiff’s evidence of his hearing problem and the impact of the hearing problem has clearly contradicted with the findings of the ENT experts. I place full weight to the ENT Report and I am of the view that this is an example of the Plaintiff having exaggerated his conditions. (B) Whether the Plaintiff had loss of consciousness 73.In relation to whether the Plaintiff had loss of consciousness right after the Accident, it is the evidence from the Plaintiff, which is supported by his witness, that the Plaintiff did lose consciousness after he was hit by the fallen ceiling. I notice that there is no evidence to contradict the evidence from the Plaintiff’s witness, but I have the following observations and as a result, little weight, if any, is given to the witness’s evidence :-
74.Despite the Plaintiff’s evidence that there was loss of consciousness, Mr Ho submitted that there were the following contemporaneous medical records in July or August 2014 about there being no loss of consciousness of the Plaintiff :-
75.Subsequently, there were records showing that the Plaintiff claimed that he lost consciousness, as follows :-
76.As there were different versions about loss of consciousness and the circumstances were more exaggerated over time, on balance of probabilities, I am of the view that it is more likely than not that there was no loss of consciousness. Even if there was, it was only a transient loss of consciousness, which would not add much to the seriousness of the Plaintiff’s injuries. (C) Whether the loss of hearing was caused by the Accident 77.It is not disputed that the hearing problem of the right ear is not related to the Accident. The only issue is whether the loss of hearing of the left ear was caused by the Accident. 78.I give full weight to the Joint ENT Report and I repeat paragraph 72 hereinabove. As clearly stated by the experts, they cannot be certain about the causal relationship of the Plaintiff’s hearing loss of his left ear and the Accident, and the percentage of permanent disability caused by the hearing loss is estimated for reference only. 79.The loss of hearing of the left ear was due to otosclerosis. Both experts explained that the exact cause of otosclerosis is not fully known. No identifiable cause was found in most of the cases. It may also be due to genetic factor. Environmental factors, eg measles infection may play a role. There are also a few reported cases in which otosclerosis is associated with history of previous head injury. 80.I have considered particularly the views from both experts that “on one hand, the history and medical notes revealed that Mr Kumar only suffered from a mild head injury during the accident and causes other than trauma may also account for the otosclerosis in his left ear. On the other hand, we do not have evidence of any previous ear problem in the left ear of the patient and he complained that the problem only started after the accident. As such, we are of the view that it is possible but not certain that the patient’s left ear condition was caused by the accident.” 81.Mr Hui submitted that as the experts commented that “it is possible but not certain that the Plaintiff’s left ear condition was caused by the accident”, with the Plaintiff having no ear problems at all prior to the Accident, it is reasonable for the Court to find that the Plaintiff’s left ear condition was caused by the Accident. Mr Hui also drew the court’s attention to the operation done on 31 January 2019 and the Plaintiff had also confirmed that he stopped boxing in 1999 (ie 15 years before the Accident in 2014) and it is highly unlikely that the Plaintiff’s hearing problem was caused by the Plaintiff’s boxing as the Defendant suggested. 82.I cannot agree with Mr Hui’s submissions. Whether the Plaintiff has had no ear problems at all prior to the Accident and whether he had stopped boxing 15 years ago are all crucial matters, which have to be considered in view of the Plaintiff’s subjective evidence. 83.While I accept that the Plaintiff may have stopped boxing competition since 1999, with the reasons as explained by the Plaintiff, I am of the view that the Plaintiff is still practising boxing. During cross-examination, the Plaintiff agreed that when he went to the fitness centre, he practised some punching, shadowing boxing and training regularly. This is evidenced by what the Plaintiff told the doctors and with records in medical notes of the Plaintiff being “left-hand dominant for boxing”. 84.Further, when considering the reliability of the Plaintiff’s evidence in this matter, I notice that there is no documentary support that the Plaintiff had complained about his left ear problem shortly after the Accident, as he alleged. On the contrary, from various medical notes upon consultation, there were records of no hearing impairment. It was until a few months after the Accident that there were records of complaints from the Plaintiff about the ear problem. 85.On balance of probabilities, I am of the view that the hearing problem of the Plaintiff’s left ear was not caused by the Accident. (D) The reasonable days of sick leaves 86.As correctly submitted by Mr Ho, a Master in conducting assessment of damages is not bound by the period of sick leave granted by the doctors. 87.In this case, it is not disputed that the Accident did happen, with the ceiling fell onto the Plaintiff, causing injuries to him, including the head and shoulder. What is in dispute is the seriousness of the injuries involved. 88.With my analysis above, especially in relation to :-
I am of the view that the reasonable period of sick leave is not more than 5 months. 89.I now turn to the different heads of claims. PSLA 90.The Plaintiff claimed HK$700,000 for PSLA initially, relying on the case Lee Ting-Lam v Leung kam-ming [1980] HKLR 657, as the Plaintiff’s injuries fall within the “serious injury” category. 91.In the closing submissions, Mr Hui submitted that the award for PSLA should be HK$400,000. He referred me to a number of cases, including Ng Sik Kai v Lui Wing Lok t/a Wing Wah Oil Ship Co., DCPI 62/2019, 2 January 2020, Chan Sau Wai v Lam Kin Sum t/a Kim Yuen Mineral Co., HCPI 1168/2005, unreported, 14 May 2007, Wong Leung Chi v Luen Fat Civil Engineering Ltd, HCPI 975/2002, unreported, 25 August 2004, Tsang Wai Ching v Iu Sau Ying, formerly trading under the business name of Cheong Shing Furniture Design Co., DCPI 1433/2006, unreported, 16 January 2008, Tong Chun Chung v Pud Chi Keung, HCPI 183/2003, unreported, 6 May 2005, Lam Yim Fong v Advara Investment Limited, DCPI 2084/2011, unreported, 8 March 2013 and Chang Tsun Tein v Wai Lee Scaffolding Co Ltd, DCPI 818/2008, unreported, 26 May 2010. 92.I accept the Plaintiff suffered mild head injury and soft tissue contusion of the shoulder. As I have explained my reasons of preferring the views of Dr Yip, I agree that the residue complaints about the shoulder are pre-existing conditions, which are not caused by the Accident. 93.The first 5 cases are far too serious comparing to the injuries of the Plaintiff of this case. I accept the submissions in Mr. Ho’s supplemental submissions which I do not repeat here. 94.Mr Ho also referred me to a number of cases as set out in his opening submissions and supplemental closing submissions. The plaintiffs in the 3 cases referred to in Mr Ho’s opening submissions were all with injuries and complaints less serious than the Plaintiff in this case, and they had been awarded PSLA in the range of HK$80,000 to HK$100,000. 95.I am of the view that the last 2 cases Mr. Hui referred me to are more similar to this case. The Plaintiff in the case Lam Yim Fong was hit by a fallen advertisement board. Sick leave of 6 months was allowed and the PSLA of HK$160,000 was awarded. The Plaintiff in the case Chang Tsun Tein had mild head injury and a mild form of post-concussional syndrome. PSLA of HK$150,000 was awarded. 96.While I rule that the Plaintiff has exaggerated his injuries, it is not disputed that the Accident did happen. I accept that the Plaintiff’s head and shoulder were hit by the fallen ceiling, causing injuries. Although I rule that the injuries the Plaintiff sustained were less serious than he alleged, I accept that sick leave of not more than 5 months is appropriate. 97.I also accept that the Plaintiff resumed work during the sick leave period because of financial constraint as explained, and there was still some discomfort at work during the sick leave period. This has been taken into account when I consider the PSLA. The fact that the Plaintiff was able to earn during the sick leave period will also be taken into account in the next section when I consider the pre-trial loss of earning. 98.I assess PSLA to be HK$150,000. Pre-trial loss of earning 99.The Plaintiff claims for pre-trial loss of earnings in the sum of HK$296,452.50 and the calculation is shown in Mr Hui’s closing submissions, with the monthly income of HK$25,000 used as the basis for calculation. 100.The Defendant opposed to the amounts claimed and basis of the calculation. Mr Ho submitted that in light of the Plaintiff’s job history and the scant evidence on the employment with the Restaurant, the Plaintiff plainly failed to prove that he would work in the Restaurant as a full time restaurant manager on a long term basis. At most, the Plaintiff can argue that he had a casual employment with the Restaurant that can be terminated by either party at will. 101.Mr Ho’s submissions are supported by the case Cheung Wai Kar v Dragon Kings Development Limited t/a Famous (Dragon Kings) Restaurant [2019] HKCFI 3114, in which the plaintiff in that case was injured after working for around 2 weeks in the defendant’s factory. Prior to that, the plaintiff had been working in various construction sites, but there were also occasions when he was laid off and was unemployed for months before finding another job. The court did not apply his rate of earnings at the time of the accident, but took the two-year average of the plaintiff’s earnings as the multiplicand. Mr Ho submitted that the plaintiff’s employment history as indicated by tax returns in that case is similar to that of the Plaintiff in the present case. With reference to the work record of the Plaintiff, as shown in the letter from the Inland Revenue Department as provided by the Plaintiff, his monthly income in average for the past 24 months before the Accident is calculated to be HK$10,300.88. 102.It is not disputed that the Plaintiff was working as a manager at the Restaurant before the Accident and also resumed work in the same Restaurant shortly after the Accident. 103.However, the amount of salary and whether the Plaintiff had been working full time or part time are disputed. Mr Ho pointed out that other than the one-page letter signed and with company chop of the Restaurant stating the monthly salary to be HK$25,000 was provided, there are no other documents in support. When the Plaintiff was cross-examined, he explained that he had just started the work shortly before the Accident and had not passed the probation period. Therefore, there was no employment contract or MPF record. 104.I find this explanation hardly satisfactory. According to the Plaintiff, he had worked in the Restaurant for 2 months before the Accident, and also worked part-time from 21 July 2014 to 30 November 2014, and from January 2015 to October 2015. The Defendant had clearly indicated in the Answer to the Re-Revised Statement of Damages that the Plaintiff is put to strict proof of his monthly earnings. In the circumstances, even if there are no MPF or tax returns from the employer and even the salary was paid in cash as alleged, payslips or confirmation of salary received in any form should be obtained. It is devoid of logic that none can been provided. 105.It is for the Plaintiff to prove his case. Failing any documentary proof (other than the said one-page letter), the Plaintiff had chosen not to call any witness, such as the boss, to give evidence in support. On balance of probabilities, I do not accept the salary of HK$25,000 per month before the Accident and I have reservation of whether the Plaintiff did work full-time at the time of the Accident. 106.I accept the submissions from Mr Ho about the approach in the case Cheung Wai Kar and adopt the pre-Accident monthly average of the Plaintiff’s earnings as the basis of computing pre-trial loss of earnings. 107.In view of the Plaintiff’s previous work and earnings as shown in the letter from the Inland Revenue Department dated 12 February 2016, which is summarised below :-
I am of the view that it is fair to consider the monthly average from 3 May 2010 (ie. for the past 49 months before the Accident). 108.Taking into account the Defendant has agreed to make a favrouable assumption for the sake of calculation (adopting the approach suggested by Mr Ho) that the Plaintiff received HK$25,000 per month even in the absence of tax and MPF records, the monthly earnings was calculated to be HK$14,728. 109.The pre-trial loss of earnings are calculated to be HK$25,718, comprising of :-
Future loss of earning 110.With my analysis above, I accept that the Plaintiff can resume to his previous work after the sick leave period of not more than 5 months. Therefore, I am of the view that there is no future loss of earning. Loss of earning capacity 111.Mr Hui submitted loss of earning capacity in the sum of HK$100,000 (which is slightly more than 6 months of the Plaintiff’s current income of HK$15,000) and he summarised in the closing submissions the loss of earning capacity as suggested by the experts :-
112.With my analysis above, I have reservation as to whether there was any post-concussional syndrome and I prefer Dr Yip, instead of Dr Wong’s view, together with my ruling that the left ear hearing loss was not caused by the Accident, I am of the view that there is no loss of earning capacity in this case. Special Damages 113.The Plaintiff claims special damages in the sum of HK$158,894, comprising medical expenses for the treatment the Plaintiff has received of HK$10,894, travelling expenses of HK$8,000, tonic food of HK$5,000 and hearing aid of HK$135,000. All the medical expenses and some travelling expenses are supported by receipts. 114.With my ruling above, as I have ruled that the reasonable period of sick leave is not more than 5 months, the amount of medical expenses and the travelling expenses claimed have to be discounted. By considering the medical records, I am of the view that the sick leave, as well as the medical expenses to be paid, should be up to 24 November 2014, having considered the medical report dated 10 December 2014 by Dr Kwan of the Department of Neurology of PYNEH, in which he last reviewed the Plaintiff on 24 November 2014. 115.With the schedule of medical receipts provided by the Plaintiff, it would be up to item 48 as shown in the table summarising the medical expenses spent (ie. up to the medical appointment dated 24 November 2014), with the total sum of HK$3,714. In relation to the travelling expenses, based on the calculation submitted by Mr. Ho in the closing submissions, I am of the view that HK$3,000 (being rounded up) is reasonable. 116.In view of the nature of injuries, I am of the view that tonic food in the notional sum of HK$3,000 is reasonable. 117.About the hearing aid, with my ruling above, I am not convinced that the loss of hearing of the left ear was caused by the Accident. Therefore, the amount in buying hearing as claimed is not allowed. 118.I rule that special damages in the sum of HK$9,714 (ie. HK$3,714 + HK$3,000 + HK$3,000) is allowed. Summary on quantum 119.In summary, the quantum of damages is assessed as follows :-
Interest 120.Interest on damages for PSLA runs at 2% p.a. from the date of service of the Writ to the date of judgment. Interest on pre-trial loss of earnings and special damages at half judgment rate from the date of the Accident to the date of judgment. Interest from judgment until full payment runs at judgment rate. Costs 121.As for costs, the Plaintiff should be entitled to costs. Since the award is within the jurisdiction of the District Court, costs should be taxed according to the District Court scale. 122.Costs order nisi that the Plaintiff do have costs of the assessment of damages with certificate for counsel to be taxed on District Court scale, to be taxed if not agreed. Unless any of the parties applies by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.
Mr Wilson Hui, instructed by C M Chow & Co., solicitors for the Plaintiff Mr Leon Ho, instructed by John C H Suen & Co., solicitors for the Defendant |
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