Case Document

100%Judiciary

HCPI 16/2020

[2022] HKCFI 3803

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO HCPI 16 of 2020

_______________

BETWEEN
	MOHAMMAD LATIF	Plaintiff
	and
	EMIRATES	Defendant

_______________

Before: Master Benny Lo in Court

Dates of Hearing: 10 and 13 June 2022

Dates of Written Closing Submissions: 20 and 27 June 2022

Dates of Further Written Submissions: 7 and 21 July 2022

Date of Judgment: 28 December 2022

___________________

J U D G M E N T

(on assessment of damages)

__________________

A. Introduction

1.The plaintiff commenced this action against the defendant by Writ of Summons issued on 13 January 2020 claiming damages for personal injury and other losses suffered as a result of an accident that occurred at the Benazir Bhutto International Airport in Islamabad, Pakistan (“Airport”) on 27 February 2018 (“Accident”).

2.The Accident occurred when the plaintiff, as a passenger seated in a wheelchair, was being lifted to board an aircraft operated by the defendant together with four other passengers on an ambulift which suddenly collapsed. This caused the plaintiff, the other passengers and the lift handler to fall onto the tarmac from a height of around 10 metres.

3.By a judgment entered by Master Roy Yu dated 22 June 2020, it was adjudged that the defendant do pay the plaintiff damages to be assessed and the costs of the action on liability in any event.

4.In support of his quantum claim, the plaintiff filed a statement of damages dated 19 March 2020, which was subsequently revised on 13 April 2021 (“RSOD”). The defendant filed its Answer to the RSOD on 11 May 2021.

5.The plaintiff has also filed three witness statements, respectively made by himself, his friend Hussain Zahid (“Mr Zahid”) and his son Adeel Latif (“Adeel”). No factual witness evidence has been adduced by the defendant.

6.Apart from factual witness evidence, two medical reports have been filed: (i) the joint orthopaedics expert report of Dr Lam Yan Kit (“Dr Lam”) and Dr David Cheng (“Dr Cheng”) dated 24 August 2020 (“Joint Orthopaedics Report”), and (ii) the joint neurologists medical report of Dr Edmund Woo (“Dr Woo”) and Dr Yu Yuk Ling (“Dr Yu”) dated 8 March 2021 (“Joint Neurology Report”). By consent, these reports were adduced without the medical experts being called to give oral evidence.

7.At the start of the hearing, the plaintiff sought leave to further amend the RSOD and put in an additional factual witness statement of Akbar Latif (“Akbar”). That application was not supported by affidavit and was contested by the defendant. After hearing counsel, I dismissed the plaintiff’s application, principally on the grounds of unexplained delay and prejudice to the defendant.

8.The assessment hearing proceeded with Mr Zahid, Adeel and the plaintiff giving oral evidence. The parties were content to dispense with an oral closing hearing and to submit written closing submissions in lieu.

9.At the end of the hearing, I reserved my judgment which I now give.

B. PLAINTIFF’S EVIDENCE

10.I begin by setting out the major aspects of the plaintiff’s factual evidence.

B1. Plaintiff’s background

11.The plaintiff was born in Pakistan on 15 August 1949. He came to Hong Kong in the late 1960s and eventually settled down here with his family. He is married with 6 grown up children and lives in a self-purchased property in To Kwa Wan.

12.The plaintiff once worked as a factory worker and then as a security guard for the Hang Seng Bank until he retired from the Bank in 2003. During his cross-examination, the plaintiff suggested for the first time that he worked as a night-time security guard after leaving the Bank. However he has given no further particulars on this post-retirement job.

13.In 2013, Adeel set up a business called Halbmond Company HK (“Halbmond”) to carry out trading of dried seafood and the plaintiff then started working there as an office assistant. According to Adeel, Halbmond is a family business and the plaintiff took care of the paper work, deposited cheques and/or acted as an adviser.

14.For doing his work at Halbmond, the plaintiff’s case is that he received a fixed monthly salary of HK$8,500 before the Accident. But as Adeel explained during cross-examination, the payment of this fixed salary only started in 2016 pursuant to a verbal agreement. This is even though the plaintiff had already started helping Adeel out with the business before then and was not paid a fixed amount previously. Depending on Adeel’s business and the plaintiff’s needs, the plaintiff was previously paid anywhere between HK$8,500 and HK$20,000 a month.

15.The plaintiff has adduced 11 similarly looking copy pay slips from Halbmond dated 1 March 2017 to 1 January 2018 showing his receipt of HK$8,500 a month for doing “Sales work”. At §24 of Adeel’s witness statement, he explains:-

“Ever since my father retired as a security guard of Hang Seng Bank, he worked as an assistance [sic] in my office. His main task at the office was to handle invoices and other general paper works. I paid him $8,500 per month for his work. As this is an arrangement between father and son, no form [sic] employment contract was signed.”

16.But as Adeel further elaborated during his cross-examination:-

16.1 The plaintiff was not his employee, and did not have any MPF account set up for him at Halbmond. Adeel also did not complete any employer’s return for the plaintiff.

16.2 The plaintiff had no relevant experience in dried seafood trading and had nothing to do with the sale and trading of Halbmond’s dried seafood products. According to Adeel, the plaintiff was a “father and adviser in the office” throughout.

16.3 With regard to the payments made to the plaintiff, they were essentially paid as pocket money in order to show that Adeel was a son, he was filial and it was not for any other reason. That was why no employer’s return was completed for the plaintiff, and no sick leave allowance was ever paid to him as a result of the Accident.

16.4 Even after he started paying the plaintiff HK$8,500 a month, Adeel would still pay him more if he had needs, but Adeel would take into account the HK$8,500 already paid. Adeel did so because he felt that, as a son, he shouldered the responsibility to take care of the plaintiff. Likewise, after the Accident, Adeel still gives the plaintiff pocket money in the amount of around HK$5,000 to HK$10,000 a month.

17.Further, the plaintiff clarified in cross-examination that:-

“My son used to take me there and I was working – I work[ed] there as an adviser, but I was not employed and that was my son’s office …

I did not … work there as a worker. … I work[ed] there as an adviser, not as a worker, and that was my son’s company. I was not their worker.”

18.As the plaintiff further accepted, he was only advising Adeel “as a father”.

B2. Plaintiff’s health before the Accident

19.All three of the plaintiff’s witnesses described the plaintiff as being in good health generally before the Accident. In particular, the plaintiff was able to look after himself and his wife and to cope with activities of daily living. According to Mr Zahid, he and the plaintiff played hockey together in the past.

20.The plaintiff also enjoyed playing with his grandchildren, including playing basketball with them occasionally. Adeel has adduced two video clips taken on 25 March 2017 showing that the plaintiff was playing basketball with Adeel’s children.

21.There is however no dispute that the plaintiff also suffered from other conditions before the Accident. He had a stroke over 10 years ago. He also suffered from prostate cancer and underwent surgery for it in 2014. He was diagnosed with detrusor overactivity resulting in urinary incontinence. As Mr Zahid explained, it was because of the plaintiff’s urinary incontinence that the plaintiff had difficulty travelling long distances and gradually paid fewer visits to Mr Zahid’s home. This journey would have taken him around 1 hour door to door. Henceforth, the plaintiff decided to meet Mr Zahid in the latter’s office instead.

22.The plaintiff’s medical records also reveal that he suffered from hypertension, chronic obstructive airway disease and lipid metabolic disorder prior to the Accident. His exercise tolerance was recorded by a consultant at Queen Elizabeth Hospital as “3 flights of stairs” on 24 May 2016. In his cross-examination, the plaintiff clarified that this means he could walk three flights of stairs by holding onto the railings. Although the video clips produced by Adeel as aforesaid do show the plaintiff playing basketball in March 2017, it appears to take him some 20-30 seconds to pick up the basketball in the basketball court. The plaintiff attributed that to him feeling tired at the time.

23.Further, according to Mr Zahid, the plaintiff suffered from a “mental stroke” in 2014 and was admitted to hospital for a week. Adeel disagreed, saying that the plaintiff was only admitted for a day after suffering from “a risk of stroke” and falling to the ground.

24.Finally, according to both Mr Zahid and Adeel, the plaintiff was again admitted to hospital in 2017 for a week, this time to receive surgery for his urinary incontinence.

B3. The Accident

25.On 27 February 2018, the plaintiff was at the Airport intending to board a flight to Hong Kong operated by the defendant. He was accompanied by Adeel and other family members after travelling out there to visit relatives on 8 February 2018.

26.It is not in dispute that the plaintiff sustained personal injuries after falling from the ambulift at a height of around 10 metres when he was being lifted, while seated in a wheelchair and together with four other passengers, to board the plane operated by the defendant.

27.According to Adeel, he accepted an offer for the plaintiff to be taken to the plane in this manner so that the plaintiff could avoid walking up the stairs to board the plane. He thought it would help as the plaintiff would suffer from urine leakage when walking long distances. Sitting in a wheelchair, he thought, would make the plaintiff more comfortable.

28.As a result of the Accident, the plaintiff suffered from multiple injuries and was taken to the Benazir Bhutto Hospital for initial treatment. He was then transferred to the Shifa International Hospital on the same day. He was discharged from Shifa International on 13 March 2018 and re-admitted on 15 March 2018 due to a urinary tract infection.

29.After returning to Hong Kong on 22 March 2018, the plaintiff was taken to the Princess Margaret Hospital straight from the airport for further treatment. He was subsequently transferred to the Queen Elizabeth Hospital on 2 April 2018 and stayed there until 17 April 2018 when he was transferred to the Kowloon Hospital for rehabilitation. He was finally discharged on 14 May 2018 after which he continued to receive outpatient treatment.

B4. Plaintiff’s condition post-Accident

30.According to the plaintiff, he has been experiencing continuous back pain and headache after the Accident. He explained that he only manages to walk for 2-3 minutes at a time and is confined to a wheelchair at home most of the time. He also complained of pain in his left arm and shoulder and restricted manual dexterity in his left hand.

31.In the plaintiff’s witness statement, he states that he feels tired and anxious, his sleep is getting difficult and he wakes regularly from startling dreams. He hears unexpected sounds and can no longer watch TV programmes he used to watch as they put him into a sense of immediate fear. This, according to him, increases his heart rate and instils a sense of harm and inability to move. When the plaintiff was asked about these in cross-examination, he told the court that he could not recall when he had these problems.

32.The plaintiff finds coping with his daily life challenging due to his restricted mobility. Since his wife has also suffered from a knee fracture, the plaintiff cannot cope with his daily living such as bathing, cleaning the house, laundry and getting food from the market. The plaintiff also explained that he has received medical treatment for post-traumatic stress disorder from a clinical psychologist, Dr Quratulain Zaidi.

33.According to Mr Zahid, while the plaintiff’s physical condition improved gradually after the Accident, he was very forgetful and could not remember many things that happened in the past. The plaintiff also complained about his back to Mr Zahid. Mr Zahid observed that the plaintiff lost his temper and became angry easily. This latter point was also confirmed by Adeel, who added that the plaintiff lies in bed at home mostly and his inability to move around independently would distress him.

C. MEDICAL AND EXPERT EVIDENCE

C1. Plaintiff’s injuries

34.The plaintiff’s injuries have been reviewed by the respective medical experts, with the aid of his medical records, and summarized in the Joint Orthopaedics Report and the Joint Neurology Report.

35.As the respective medical experts explain:-

35.1 The plaintiff sustained head injury, multiple fractures and injury to the left brachial plexus as a result of the Accident.

(a)     Head injury

35.2 The plaintiff’s head injury was a contusion.

35.3 As Dr Lam and Dr Cheng explain:-

“The head injury was a contusion with loss of consciousness. There were no skull fracture, no intracranial haemorrhages. [The plaintiff] regained consciousness three days later. There was an undisplaced fracture of the right nasal bone.”

35.4 According to Dr Yu:-

“In the accident on 27^th February 2018, [the plaintiff] sustained a head injury. He had a laceration of the left ear lobe and bleeding from the left ear. While his son related that he lost consciousness for 3 days when he was nursed in the intensive care unit, the Emergency Room noted amnesia of the event but no loss of consciousness. [The plaintiff] had no recall of the event and early part of the hospitalization. CT brain on admission showed a small hemorrhagic within the encephalomalacic area in the right occipital lobe, and a thin right-sided subdural hematoma. CT brain a month later showed that the chronic subdural hematoma had increased in thickness though its extent became restricted to the anterior frontal region. The small hemorrhagic contusion of the right occipital lobe had resolved by then. With conservative treatment, his neurological status returned to normality and the traumatic intracranial lesions (the subdural hematoma and the hemorrhagic contusion) resolved.

Taking into account the above, [the plaintiff] sustained a head injury of a moderate to severe degree.”

35.5 According to Dr Woo:-

“[The plaintiff] was injured in a fall on 27^th February 2018. According to the contemporaneous notes, he had no loss of consciousness. According to the son, he was unconscious for 3 days. There was radiological evidence of a small hemorrhage within the encephalomalacic area in the right occipital lobe.

Taking the above into consideration, [the plaintiff] had a complicated mild traumatic brain injury.”

(b)     Spinal injuries

35.6 According to Dr Lam and Dr Cheng, the plaintiff also sustained lumbar spine fracture involving the transverse process on both sides from L1 to L3 vertebra and the left one on the L4^{^[1]} vertebra. However, the experts are in agreement that there is good stability of the lumbar spine and no neurological deficit of the cauda equina.

(c)     Other injuries

35.7 Dr Lam and Dr Cheng also observe that there were tiny fractures of the pelvis at the pubic rami and acetabulum region, although these were not affecting the plaintiff’s pelvic stability nor congruity of the hip joint.

35.8 Moreover, Dr Lam and Dr Cheng agree that the plaintiff sustained a mild traction injury to the left brachial plexus, leading to his difficulty in moving his left upper limb following the Accident.

35.9 While the plaintiff was found to have also sustained a fracture of the humerus at the proximal end of the left shoulder, Dr Lam and Dr Cheng consider this to be a healed fracture and not a new fracture caused by the Accident.

36.In terms of treatment, the plaintiff was treated conservatively. Dr Lam and Dr Cheng consider that the treatment the plaintiff received was standard and appropriate. Dr Yu and Dr Woo consider his course of treatment to be adequate or appropriate.

C2. Plaintiff’s recovery, prognosis and pre-existing conditions

37.The plaintiff was physically examined by Dr Lam and Dr Cheng jointly on 30 June 2020 and by Dr Yu and Dr Woo jointly on 12 January 2021.

38.As stated in the Joint Orthopaedics Report:-

38.1 Dr Lam and Dr Cheng found that all of the plaintiff’s fractures had healed. His pelvis was stable, hip joints were normal. His spine was also stable, but with severe spinal stenosis with pain, and difficulty in walking. There were some stiffness of the left shoulder and reduced agility of the left upper limb. They found the plaintiff’s complaints to be justified.

38.2 In terms of prognosis, Dr Lam and Dr Cheng opine that the plaintiff had reached maximum improvement from his injuries and the prognosis was fair. The main problem is the severe spinal stenosis with compression on the cauda equina nerve roots causing pain, difficulty in walking or other physical stresses of the lower limbs. Given the severity, they consider that surgery would help. But if the plaintiff was reluctant for surgery, treatment can only be symptomatic.

38.3 Dr Lam and Dr Cheng consider the effect of the plaintiff’s injury to be significant. In terms of the plaintiff’s work at his son’s company, although he may do the job physically, there is the problem of frequent pain affecting his performance, and the difficulty of getting to work, and he would need a wheelchair for long journey. In addition, the plaintiff may need outside help for heavy domestic chores and some personal activities such as bathing, preparing food, etc.

38.4 Quantitatively, Dr Lam and Dr Cheng agree that the orthopaedic injuries the plaintiff suffered amount to a whole person impairment (“WPI”) and loss of earning capacity of 25%. But according to Dr Lam, while the degenerative spinal stenosis accounts for 19% of the WPI, only 5% of which is attributable to the Accident. Both experts agree that sick leave of two years would be recommended.

39.Despite the above, in relation to the plaintiff’s severe spinal stenosis, Dr Lam and Dr Cheng specifically observe:-

“10. Lumbar Spondylosthesis with Spinal Stenosis

We note that a MRI scan of the lumbar spine was done on 13.9.2018, ie about 18 months after the accident. There is gross lumbar spondylosis, ie degenerative changes. At the L4/5 level, there is disc bulging, spondylislothesis, facet arthroplasty, ligmentum hypertrophy, causing significant spinal stenosis with encroachment of cauda filaments. These changes are features of degeneration, due to aging, life style and general wear and tear, and are not caused by a single episode of back injury 18 months ago. The degeneration is pre-existing and caused a condition called spinal stenosis with equina encroachment.”

40.Even though the plaintiff’s spinal stenosis was pre-existing, Dr Lam and Dr Cheng agree that the Accident has aggravated it. As they explain:-

“We agree there is no dispute that [the plaintiff] suffered from degeneration of the lumbar spine with severe spinal stenosis causing encroachment of the equina and its nerve roots. This is a pre-existing condition, not caused by the said accident. The degeneration is advanced, and there is a strong possibility that some other events or natural progression of the condition would have brought about the present state. The accident took place on top of such a back. It not only caused the pain of the fractures but also tipped the balance and caused the spinal stenosis to be symptomatic and hence the impairments.

It is difficult to put a percentage but an educated guess is that the accident aggravated the spinal stenosis and advances the condition by about 5 years.”

41.Turning to the Joint Neurology Report:-

41.1 On residual disability, Dr Yu takes the view that the plaintiff has suffered symptoms akin to post-concussional syndrome as well as mild features of post-traumatic disorder, but with severity well below that of the full-blown syndrome. He assesses the plaintiff’s WPI as a result of these issues at 6%.

41.2 On the other hand, Dr Wu considers that, while the plaintiff had mild post-concussional syndrome and mild anxiety, there are no other features indicating the presence of post-traumatic disorder, and there is no cognitive, vestibular or physical deficit. He assesses the plaintiff’s WPI as a result of these problems at 2%.

41.3 In terms of the plaintiff’s daily activities, Dr Yu considers that the plaintiff would need minor assistance and supervision in his activities of daily living, such as shower and dressing, grooming, feeding and sanitary care. Dr Woo takes the view that the plaintiff’s neurological deficits did not impose any restrictions on his daily living.

41.4 As to earning capacity, Dr Yu assesses the plaintiff’s loss of earning capacity, from the neurological perspective, to be 6%. On the other hand, Dr Woo opines that the plaintiff should be able to resume his pre-injury occupation in administrative or clerical tasks with a loss of earning capacity of about 2%.

41.5 On medical treatment, Dr Yu considers that there was no specific treatment for the plaintiff’s symptoms, and further neurological or neurosurgical consultations would not be necessary. However, the plaintiff may need to consult his family doctor for symptomatic treatment of headache and dizziness on a need basis, say 4 times for the 12 months from the date of the report, at HK$400 per consultation. Dr Woo sees no indication for regular neurological or neurosurgical evaluation.

41.6 Both Dr Yu and Dr Woo agree that, owing to the nature and severity of his head injuries, the plaintiff has reached maximum medical improvement. As for sick leave, Dr Yu assesses it at 12 months and Dr Woo assesses it at 6 months.

42.For completeness, Dr Yu and Dr Woo make clear that the plaintiff’s stroke over a decade ago account for the clumsiness of his left hand, the pseudo-athetoid posture of his outstretched left hand, and the nociceptive loss in his left forequarter and his left extensor plantar response. But these sensorimotor deficits were not caused by the Accident.

D. ASSESSMENT OF DAMAGES

43.As set out in the parties’ closing submissions, the plaintiff’s case is that he is entitled to total damages of HK$3,874,000[2], whereas the defendant submits that the plaintiff is only entitled to HK$188,335 (primary case) or HK$263,851 (alternative case). These are net of the interim payment of HK$500,000 made to the plaintiff on 20 April 2020.

44.The parties’ respective positions in closing may be summarized as follows:-

Head of damages Plaintiff’s case Defendant’s
primary case Defendant’s
alternative case

PSLA HK$805,000 HK$500,000

Pre-trial loss of earnings HK$561,000 HK$0

Future loss of earnings HK$324,000 HK$0

Loss of earning capacity HK$0 HK$0

Past and future expenses
for caretaker / domestic helper HK$344,250
+HK$104,550
+HK$1,180,800
= HK$1,629,600 HK$162,420 HK$237,936

Other expenses incurred HK$20,000
+HK$51,000
+HK$10,000
= HK$81,000 HK$20,000

Future medical and
other expenses HK$250,000
+HK$144,000
+HK$240,000
= HK$634,000 HK$5,915

Less interim payment (HK$500,000)

Total amount before interest HK$3,534,600 HK$188,335 HK$263,851

D1. PSLA

45.On damages for pain, suffering and loss of amenities (“PSLA”),

45.1 Mr Pirie, counsel for the plaintiff, cites the following authorities:-

(a)  Thapa Surendra v E W Cox Hong Kong Ltd & Anr (unreported, HCPI 451/2009, 11 July 2011; DHCJ Seagroatt);

(b)  David John Slater v Commissioner of Police (unreported, HCPI 646/2012, 7 July 2017; Bharwaney J);

(c)  Chau Fung Yee v Hospital Authority – Tai Po Hospital [2018] HKCFI 1589 (L Chan J);

(d)  Ng Tat Kuen v Tam Che Fu & Ors [2019] HKCFI 1191 [2019] 4 HKC 533 (Bharwaney J).

45.2 On the other hand, Mr Ho, counsel for the defendant, refers to:-

(a)  Gurung Durga Bahadur v Kam Tai Construction Company Ltd & Anr (unreported, HCPI 304/2004, 27 November 2008; Master Levy);

(b)  Ng Wo Yin v Kwok Hei Chun & Anr [2020] HKCFI 2822 (Master Roy Yu);

(c)  Ng Yun Ting v Chan Man Wai Raymond [2021] HKDC 576 (Master Matthew Leung).

46.Mr Pirie submits that the injuries suffered by the plaintiff place him at the top end of the “serious injury” category or the bottom end of the “substantial injury” category. Relying on his cited authorities, and after adjustment for inflation, Mr Pirie submits that the plaintiff is entitled to damages for PSLA in the amount of HK$805,000.

47.In response to Mr Pirie’s submission, Mr Ho draws my attention to Lee Ting-lam v Leung Kam-ming [1980] HKLR 657 in which Cons JA described the relevant categories (at 659-660) as follows:-

“Serious Injury

7. This is the lowest category. 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. The general range of awards is from $60,000 to $80,000.

Substantial Injury

8. This category extends to injuries which require treatment in hospital for many months and leave he victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life. Awards at this level range from $80,000 to $100,000.”

48.Mr Ho therefore disagrees that the plaintiff’s injuries fall under the “substantial injury” category. He submits that the plaintiff was only hospitalized for around 2.5 months and not treated in hospital for many months. He submits that the plaintiff could walk with a stick under supervision, which was not a significant deterioration of mobility compared to the plaintiff’s pre-Accident condition. He further submits that the plaintiff only attended follow-ups every 6 months without much active treatment or surgery, and that there would be no regular treatment for the rest of the plaintiff’s life. Mr Ho therefore submits that an award for PSLA of HK$500,000 would be appropriate.

49.In assessing damages for PSLA, I have borne in mind the way the Accident occurred and the plaintiff’s post-Accident condition (see Sections B3 and B4 above), the nature and degree of his injuries (see Section C1 above), the plaintiff’s treatment, recovery and prognosis (see Section C2 above), his health condition before the Accident (see Sections B2 and C2), as well as all the authorities helpfully referred to by counsel.

50.At a starting point, I consider that the plaintiff’s injuries suffered as a result of the Accident fall within the “serious injury” category, and not the “substantial injury” category.

51.While the plaintiff did suffer head injuries, these were resolved within a relatively short period upon conservative treatment. I find that his post-concussion syndrome was mild overall and there was no full-blown post-traumatic syndrome. I also find that no further neurological treatment would be required. Based on the joint expert evidence, I find that the plaintiff would only need minor assistance and supervision with his activities of daily living.

52.In terms of the plaintiff’s orthopaedic condition, while Dr Lam and Dr Cheng agree that his injuries were significant, I find that all his fractures suffered from the Accident have healed, and the injury to his left brachial plexus was mild. I further find that the plaintiff’s major orthopaedic complaint arose from his spinal stenosis compressing on the nerves causing pain, which was pre-existing and was not caused by the Accident. That having been said, it is also relevant to note the joint opinion of Dr Lam and Dr Cheng, which I accept, that the Accident has advanced the plaintiff’s pre-existing spinal stenosis by about 5 years.

53.On this last point, even without the Accident in 2018, it is therefore probable that the plaintiff would have suffered similar mobility issues by around 2023 in any case. Indeed, per Dr Lam’s assessment (which is not specifically contradicted by Dr Cheng and which I accept), only 5% of the WPI the plaintiff suffered from his orthopaedic injuries is attributable to the Accident. This is certainly a material factor in assessing damages for PSLA, since the proper focus is the plaintiff’s pain, suffering and loss of amenities caused by the Accident but not otherwise.

54.I further accept the joint opinion of Dr Yu and Dr Woo and find that the plaintiff’s sensorimotor deficits in the left side of his body were not caused by the Accident.

55.Of the authorities, I consider the case of Ng Tat Kuen (supra), cited by Mr Pirie, to be of assistance. At §95, Bharwaney J held that awards for PSLA in the “serious injury” category would be in the range of HK$530,000 to HK$715,000 in July 2017.

56.It is also instructive to look at two of the authorities cited by Mr Ho:-

57.In Gurung Durga Bahadur:-

57.1 The plaintiff, a casual labourer, was hit by a crane and fell whilst attempting to anchor some wooden boards onto a crane in a construction site.

57.2 He suffered multiple fractures of the right transverse processes of the first to fourth lumbar vertebrae. There was a haematoma of about 2.5cm in diameter over the right side of the occiput. There was also tenderness on the chest wall and the right side of the lumbar paraspinal area.

57.3 The plaintiff was hospitalized for about 5 weeks and treated conservatively. His fractures eventually healed but he walked with a limp and had a localized residual pain around the right lower back. He could only perform light duty work. There was also mild post-concussion syndrome but it healed within 3 years. The plaintiff was given 14 months of sick leave.

57.4 The court awarded HK$340,000 as damages for PSLA, which would be equivalent to around HK$480,000 today after adjusting for inflation.

58.In Ng Yun Tung:-

58.1 The plaintiff motorcycle driver cum deliveryman was injured in a traffic accident.

58.2 He sustained injuries including fracture of the left femur and right tibia. Both of his thighs were deformed, compatible with open fractures of bilateral femoral shafts. Bruises were found in his left periorbital region. Multiple lacerations were found on his right arm, right knee, left thigh and scrotum. Diastasis of pubic symphysis and widened right sacroiliac joint were observed, which was compatible with open book pelvic fracture. Trauma transfusion protocol and tranexamic acid protocol were initialled because of severe bleeding. Pelvic binder and bilateral lower limb splintage were performed.

58.3 The plaintiff received over 7 surgeries in the months following the accident. When he was examined by the expert 2 years 10 months after the accident, the plaintiff was found to suffer from thoracic aortic dissection, ascending colon serosal tear, lever/spleen contusion, bilateral hemopneumothorax, left eye contusion with zygomatic arch fracture, pelvic fracture, left femur open fracture, right tibia / fibula open fracture with right knee ligament injury, compartment syndrome with residual contracture of muscle and stiffness of ankle, nerve damage leading to numbness of the right sole, and left upper limb brachial plexus and radial nerve palsy. There was also small abscess and laxity of his right knee.

58.4 The plaintiff’s prognosis was assessed as fair and his overall function satisfactory with adjustment. He was granted over 26 months of sick leave, but could not start working again as a coach driver until several months after that. Having regard to the nature of the plaintiff’s injuries, the number of operations performed, and the duration of his healing process, the court awarded PSLA of HK$600,000.

59.I find that the injuries suffered by the plaintiff to be more serious than those suffered by Gurung Durga Bahadur but slightly less serious than those in Ng Yun Ting. In particular, the plaintiff in this case did not require any surgery and most of his injuries had healed within several months after receiving conservative treatment. The sick leave recommended to the plaintiff was also slightly shorter than that in Ng Yun Ting. I also bear in mind the plaintiff’s pre-existing conditions, including those referred to in §§52-54 above.

60.Having taken all the above circumstances into account, and as guided by Bharwaney J’s holding from Ng Tat Kuen as aforesaid, I hold that the plaintiff is entitled to HK$600,000 as damages for PSLA, after adjusting for inflation up to the present day.

D2. Pre-trial loss of earnings

61.The plaintiff’s claim for pre-trial loss of earnings is premised on the earnings he would receive for work done at Halbmond, which he has lost as a result of the Accident.

62.According to the RSOD, the plaintiff’s claim in this regard is in the amount of HK$510,000, calculated on the basis of HK$8,500 a month from 17 February 2018 (date of Accident) to 16 February 2023 (notional date of the trial) for a total of 60 months.

63.In Mr Pirie’s written closing, the plaintiff’s claim has increased to HK$561,000. This is apparently a result of the increase of the plaintiff’s monthly earnings from HK$8,500 to a pre-trial median of HK$11,000. This median is calculated on the basis that Akbar was hired as the plaintiff’s replacement and he was earning HK$13,500 a month from 1 December 2019. Mr Pirie further points to the letter of Crump & Co dated 30 March 2022 and submits that the defendant was informed of the revised claim 11 weeks prior to the hearing.

64.Procedurally, I agree with Mr Ho that it is impermissible for the plaintiff to advance a different basis for claiming pre-trial loss of earnings from that as pleaded in his RSOD. Despite indicating on 30 March 2022 that they would be revising the plaintiff’s claim in this regard, Crump & Co had filed no application to do so until very shortly prior to the hearing. As noted at the start of this judgment, that application to amend the RSOD and file Akbar’s witness statement was dismissed. In the premises, it would be quite wrong for the plaintiff to be permitted to depart from his pleaded case in the RSOD.

65.As to substance, Mr Pirie submits that, even though the plaintiff was not a traditional employee of Adeel, he was in a “protected employment” as the father or adviser of Adeel. He submits that the plaintiff’s regular salary of HK$8,500 was documented on his pay slips. He further submits that, even though the plaintiff did not receive sick pay, Adeel paid his medical and other expenses. Hence, Mr Pirie submits that the plaintiff is entitled to the salary which he would have earned before the hearing.

66.Mr Ho’s response to these is three-fold. First, he submits that the plaintiff’s pre-accident health condition was poor and it was inherently improbable for him to work as an employee. Second, the evidence shows that the plaintiff did not consider himself and was not considered by Adeel to be an employee of Halbmond. He was instead acting more like a father advising Adeel. Third, Mr Ho submits that any money received by the plaintiff from Adeel was pocket money and not “earnings” as such, and there is no evidence showing that the plaintiff has lost any such pocket money as a result of the Accident.

67.In my judgment, while the lack of a formal employment contract between the plaintiff and Halbmond (and other usual “indicia” such as MPF and employer’s return) is not fatal to this head of claim, the key question is whether the plaintiff has discharged his burden of proving, on the balance of probabilities, that he has lost certain income as a result of the Accident. In my view, the plaintiff has failed to do so.

68.To begin with, the evidence is clear, and I so find, that the plaintiff did not have any regular work at Halbmond. As he explained in cross-examination, “[he] was not working as a fulltime over there, [he] was just going there [to] look after [his] children and look after about the [cleaning] and other things… and was like working as a supervisor”. This is confirmed by his own evidence quoted under §17 above. This is also consistent with what appears on the plaintiff’s patient assessment form kept by the Queen Elizabeth Hospital dated 3 April 2018 recording that the plaintiff was “not working” and that financially, he was “supported by family”. Given the nature of this information, it is indeed possible, as the plaintiff accepted in cross-examination and I so find, that the information was conveyed by the plaintiff himself to the hospital and was accurate.

69.As to the plaintiff’s alleged fixed monthly income of HK$8,500, Adeel’s evidence is that the plaintiff only started receiving that fixed amount in 2016 pursuant to a verbal agreement. But it is not clear to me why this arrangement would suddenly come into being. As Adeel accepted, the plaintiff had all along been helping him and receiving payment, albeit not of a fixed amount. And this could be as high as HK$20,000 a month. Adeel explained that the reason why the verbal agreement aforesaid was made is because the plaintiff came to the office and helped doing bank and deposit cheques. I do not find this to be convincing. To begin with, there is no solid evidence showing how the plaintiff’s work pattern has changed in 2016 which would justify the fixing of the plaintiff’s payment at HK$8,500. Moreover, this alleged 2016 agreement did not feature at all in either the plaintiff’s or Adeel’s witness statement. In all the circumstances, I find that no such alleged verbal agreement was made in 2016. I also hold that no employment relationship existed between the plaintiff and Halbmond prior to the Accident.

70.Most significantly, Adeel accepted, and I so find, that the payments to the plaintiff were in the nature of pocket money instead of any “earnings”. I find that, as Adeel also accepted, that such payments to the plaintiff were not made by reason of his work done at Halbmond, but instead out of his sense of responsibility in looking after his father as a son. Importantly, Adeel’s payment to the plaintiff continued to be made despite the Accident up to HK$10,000 a month, as he candidly accepted during his testimony and I so find. There is no evidence showing how much this pocket money the plaintiff has lost as a result of the Accident.

71.I therefore make no award of damages for pre-trial loss of earnings.

D3. Future loss of earnings

72.The plaintiff’s claim for future loss of earnings, which is for unknown reason listed under Section E for “loss of earning capacity” in the RSOD, is premised on him working at Halbmond until 75 years old at the monthly income of HK$8,500. This gives a total of HK$147,446.10. In his written closing, Mr Pirie increased this head of claim to HK$324,000 based on a higher income of HK$13,500 a month.

73.For the same reasons given in §64 above, there is no legitimate basis for Mr Pirie to advance a claim for future loss of earnings based on a monthly income of HK$13,500. In any event, for the same reasons given and findings made under pre-trial loss of earnings, I find that the plaintiff has failed to prove that he has suffered loss of income as a result of the Accident. As I have found in §70 above, the plaintiff has continued to be paid up to the amount of HK$10,000 a month despite the Accident.

74.The plaintiff is therefore not entitled to any damages under this head.

D4. Loss of earning capacity

75.In the RSOD, the plaintiff makes no separate claim for loss of earning capacity. As explained in §72 above, the plaintiff’s purported claim for this in his RSOD is in substance a claim for future loss of earnings.

76.In his written opening, Mr Pirie submits that the plaintiff is entitled to a fixed sum of HK$100,000 to reflect his loss of earning capacity. But in this written closing, he concedes that “[in] the light of the fact that there is no evidence that [the plaintiff] went back to work post-accident, and was then in [and] out of a job because of his incapacity, the Plaintiff can no longer contend there should be such an award. (HK$100,000)”

77.I therefore make no award for loss of earning capacity.

D5. Past and future expenses for caretaker / domestic helper

78.The plaintiff’s claim for expenses under the next head comprises:-

78.1 Expenses paid to an Urdu-speaking caretaker, Summara Sharif, in the total amount of HK$344,250, calculated on the basis of HK$27,000 a month from 15 August 2018 to December 2020 and applying a discount of 25% for household benefit;

78.2 Expenses paid to a Filipino maid in the total amount of HK$104,550, calculated on the basis of HK$8,200 a month from February 2021 to 30 June 2022 and applying a discount of 25% for household benefit;

78.3 Future maid expenses in the total amount of HK$1,180,800, calculated on the basis of HK$8,200 a month, a multiplier for life of 12 and applying a discount of 25% for household benefit.

79.The defendant does not dispute that the plaintiff is entitled to some damages under this head. It mainly takes issue with (i) the need for hiring an Urdu-speaking caretaker; (ii) the salary for the Urdu-speaking caretaker; (iii) the apportionment for household benefit; and (iv) the duration over which the plaintiff may recover such expenses.

80.On the first two issues, the plaintiff’s justifications for needing an Urdu-speaking caretaker are that he could only communicate in Urdu properly, and that the caretaker Summara Sharif was on duty 24 hours a day. In cross-examination, the plaintiff further explained that Ms Sharif is her niece. As the plaintiff’s family did not know how to hire a Filipino domestic helper in the beginning, the plaintiff’s family decided to hire Ms Sharif to take care of him and only switched to hiring a Filipino maid later on.

81.I do not accept that the plaintiff’s English proficiency is at such a low level that he could only be taken care of properly by an Urdu-speaking caretaker. There are ample indications in the plaintiff’s medical records showing that he was able to communicate in English (or even Cantonese). This in my view is hardly surprising given that the plaintiff has lived in Hong Kong since the late 1960s and has worked as a security guard at the Hang Seng Bank for years. Moreover, on numerous occasions during this cross-examination, the plaintiff leapt into answering Mr Ho’s questions in English before even waiting for the interpretation to begin. I do not accept that the plaintiff’s English ability is so poor that the expenses of an Urdu-speaking caretaker should be provided for.

82.However, I accept that it was reasonable for the plaintiff to hire Ms Sharif to help take care of the plaintiff given the circumstances and disabilities the plaintiff faced at the time. In particular, I accept the plaintiff’s evidence, which is uncontradicted, that the family did not know how to hire a Filipino domestic helper in the beginning. Mr Ho submits that if the court considers the plaintiff would need Ms Sharif for some time, that need would not exceed 1 year. I agree and find that one year is a reasonable period for the plaintiff to hire Ms Sharif as a caretaker. Mr Ho takes issue with the level of salary of Ms Sharif, given that she does not possess any professional nursing qualification and only worked as a baby carer in the past. I am not minded to discount Ms Sharif’s monthly salary in this regard, after having limited her salary to one year as discussed above. There is also no real dispute that the salaries claimed were in fact paid to Ms Sharif.

83.As regards the discount for household benefit, the plaintiff’s own evidence suggests, and I so find, that there are 8 people living in the plaintiff’s home, including the plaintiff, his wife, his son Akbar, Akbar’s wife and their four children. As the plaintiff further explained, and I so find, that the caretaker / domestic helper also looks after other members of that household. In addition, it is undisputed that the plaintiff’s wife also suffered from knee fracture soon after the Accident, and hence would likely benefit from such services. At the same time, the plaintiff’s disability would appear to require more attention compared to the other tasks. That said, I find the plaintiff’s suggested discount of 25% to be on the low side. In all the circumstances, I assess the discount for household benefit at 50%.

84.As to the duration over which such expenses may be recovered, I accept Mr Ho’s submission that the plaintiff is entitled to recover these for 5 years only. As mentioned, the plaintiff’s major disability arose from his pre-existing spinal stenosis, and the Accident has advanced by the condition by around 5 years. As I have found, it is likely that the plaintiff would have suffered a similar degree of disability 5 years down the line even without the Accident. I therefore consider it inappropriate to apply a multiplier for life of 12 for the plaintiff. The plaintiff’s claim for these expenses is limited to 5 years from the date of the Accident.

85.Taking all these into account, I award the following amounts:-

85.1 For the first year after the Accident: HK$27,000 x 50% x 12 = HK$162,000;

85.2 For the next four years: HK$8,200 x 50% x 48 = HK$196,800.

86.This gives a total award of HK$358,800 under this head.

D6. Other expenses incurred

87.In the plaintiff’s RSOD, he claims the following out-of-pocket expenses: (i) expenses in Pakistan of HK$5,900; (ii) general medical expenses of HK$20,000; and (iii) travel expenses of HK$5,000.

88.In Mr Pirie’s closing submissions, this head of claim has increased to the following amounts: (i) expenses in Pakistan of HK$20,000; (ii) taxi expenses of HK$51,000; and (iii) counselling expenses for post-traumatic distress disorder of HK$10,000.

89.Mr Ho does not dispute that the plaintiff is entitled to reasonable expenses in Pakistan, medical expenses and travel expenses. But he submits that the plaintiff has not provided breakdowns for these items, and that the plaintiff mostly received treatment at government hospitals. Mr Ho takes particular issue with the taxi expenses of HK$51,000, when the plaintiff’s pleaded claim for travel expenses in the RSOD is only HK$5,000. He also objects to the claim for counselling expenses which he says is devoid of particulars and lacks evidential support. In the circumstances, Mr Ho submits that the defendant is only prepared to allow up to HK$20,000 to cover these items.

90.Mr Ho is right that the plaintiff has provided neither particulars nor evidence in support of these items. I also agree that it is not open for Mr Pirie to increase the claim for taxi expenses to HK$51,000 only in his closing, when the pleaded travel expenses claim is only for HK$5,000 and Mr Pirie makes no mention of the larger amount in his opening.

91.As to the claim for counselling expenses of HK$10,000, I consider it to be unproven. Not only is there no evidence in support of this expenditure, it is also unsupported by medical evidence. It is not sufficient for Mr Pirie to assert, by way of counsel submissions, that these are “obviously required”. These expenses are not in my view recoverable in the absence of the necessary evidence showing necessity and reasonableness in amount.

92.On the defendant’s concession, I would award HK$20,000 under this head.

D7. Future medical and other expenses

93.The last head of the plaintiff’s claim comprises:-

93.1 HK$250,000 for a laminectomy (decompression surgery) to lessen his back pain;

93.2 HK$144,000 as future travel expenses by taxi, being HK$12,000 per year applying a multiplier for life of 12;

93.3 HK$240,000 for future wheelchair, medical and counselling expenses, being HK$20,000 per year applying a multiplier for life of 12.

94.On the evidence, decompression surgery was recommended by Dr Tommy Ng Hung Kwong, a private doctor whom the plaintiff consulted, to correct his lumbar deformity. Moreover, in the Joint Orthopaedics Report, Dr Lam and Dr Cheng also expressed the opinion that, given the severity of the plaintiff’s symptoms, surgery should help.

95.Despite this, the plaintiff has repeatedly expressed reservation on this procedure:-

95.1 As recorded by Dr Aaran Leung Heng Chi of the Queen Eliabeth Hospital in the plaintiff’s consultation summary dated 20 November 2018:

“explained risks involved in decompression surgery

and explained pain can remain similar since he does have bony fractures of his spine

patient understands

he is not keen for operation of his back either

since he feels he is gradually improving physically

and he is worried about the respective risks of operation

and since does not have any sign / symptoms of cauda equina compression, he is not keen for such major operation also”;

95.2 As also noted by Dr Lam and Dr Cheng in the Joint Orthopaedics Report:-

“Mohammad attended the orthopaedic clinic follow-up. He also sought treatment from a private orthopaedic surgeon Dr Tony Ng in late 2018. MRI scan of the lumbar spine was done, and surgery was advised. Mohammad said the orthapedic surgeon at QEH, after noting the MRI findings also advised the same. He was reluctant for surgery.”

96.Even though the plaintiff in his witness statement has indicated willingness to undergo the procedure after receiving payment, I find, on the balance of probability, that he would not depart from his earlier disinclination to receive such surgery. This is indeed confirmed by the plaintiff’s re-examination by Mr Pirie towards the end of the hearing:-

“Q. So let’s get back to what we were discussing. You told my learned friend in relation to a consultation that you had at Queen Elizabeth Hospital at that time you didn’t wish to have the operation. And you have suffered since that time two or three years pain, correct or not correct, in your lower back?

A. Almost four years.

Q. Yes. So if you wish -- if you were offered that operation today, would you consider and would you take the risk and have the operation?

A. I cannot say anything.

Q. All right, I’m bound by that answer.”

97.Mr Pirie has cited no authority in support of expenses being awarded for surgery that a plaintiff does not wish to receive. I therefore make no award for a laminectomy.

98.On future travel expenses, Mr Ho submits that it should be rejected. He makes the point that Adeel had told the orthopaedic experts that the plaintiff could manage public transport in the company of his family, as noted in §3.14 of the Joint Neurology Report. He also argues that, on the plaintiff’s evidence, he did not take taxi but was taken out by Adeel’s car and there is no evidence on Adeel’s petrol costs and expenses.

99.I agree. Despite the pleaded claim for future travelling expenses in his RSOD, the plaintiff has given no evidence, even an estimate, as to how often he would have to travel by taxi, what sort of trips he would need to take a taxi for, the sort of distances he would have to travel. There is also no evidence that the plaintiff would require a taxi to travel from his home in To Kwa Wan to any follow-up appointments at the Queen Elizabeth Hospital in Yaumatei which does not seem to be particularly far away. Indeed, as Dr Lam and Dr Cheng opined in §19 of the Joint Orthopaedics Report, the plaintiff would need a wheelchair for long journeys only. For all these reasons, the plaintiff has in my view failed to prove his claim for future travel expenses by taxi.

100.I likewise make no award for the wheelchair and counselling expenses as these too lack evidential support. As mentioned in §91 above, there is no medical evidence showing any future need for counselling. Furthermore, as Mr Ho submits, it would seem that the plaintiff needed a wheelchair even before the Accident on occasions. There is no evidence showing how this has changed as a result of the Accident. Hence, there is no proper evidential basis for me to make an award for these items.

101.As to future medical expenses, apart from the amount of HK$250,000 for laminectomy as discussed above, there is no specific evidence on the expenses required to address the plaintiff’s future medical needs as a result of the Accident. Dr Lam’s and Dr Cheng’s joint opinion is that the plaintiff has reached maximum improvement, and that the plaintiff at most requires symptomatic treatment. According to Dr Yu, the plaintiff only requires symptomatic treatment for headache and dizziness on a need basis.

102.Mr Ho submits, on the basis of evidence showing the plaintiff’s half-yearly or yearly follow up at the Queen Elizabeth Hospital, that an annual sum of HK$500 is more than reasonable. In my view a more reasonable figure is HK$2,000 a year, taking into account of what Dr Yu has said and building in a provision for consulting private doctors when the symptoms require more prompt treatment. Mr Ho submits that a multiplier of 11.83 which I consider reasonable and accept.

103.I therefore award HK$23,660 for future medical expenses.

E. CONCLUSION AND COSTS

104.In summary, my assessment of damages are as follows:-

Head of damages Amount Awarded

(1) PSLA HK$600,000

(2) Pre-trial loss of earnings HK$0

(3) Future loss of earnings HK$0

(4) Loss of earning capacity HK$0

(5) Past and future expenses
for caretaker / domestic helper HK$358,800

(6) Other expenses incurred HK$20,000

(7) Future medical and other
expenses HK$23,660

(8) Less interim payment (HK$500,000)

Net total amount before interest HK$502,460

105.The parties have agreed that the plaintiff is also entitled to interest (i) at the rate of 2% per annum on damages for PSLA from the date of service of the Writ to the date of judgment; and (ii) at half the judgment rate on special damages from the date of the Accident until the date of judgment. I agree and so order. The plaintiff is also entitled to judgment rate interest on all damages from the date of this judgment until payment.

106.As to costs, I make an order nisi that the plaintiff is to have the costs of this assessment of damages to be taxed if not agreed with certificate for counsel. The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations. The order nisi will become absolute in the absence of any application to vary it within 14 days from the date hereof.

107.It remains for me to thank counsel for their assistance.