Lo Chui Yuk v. Gold Win Engineering Ltd and Others
Read the full judgment text of HCPI 279/2021 on BabelCite. This High Court CFI judgment was delivered on 18 September 2023.
1. This is the trial of assessment of damages in respect of the plaintiff’s claim herein arising from an accident which happened on 20 November 2018 ( “the Accident” ). The Writ of Summon was issued on 25 August 2021 and Interlocutory Judgment had been entered by consent against the defendants on 30 May 2023.
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HCPI 279/2021 [2023] HKCFI 2352 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 279 OF 2021 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ INTRODUCTION 1.This is the trial of assessment of damages in respect of the plaintiff’s claim herein arising from an accident which happened on 20 November 2018 (“the Accident”). The Writ of Summon was issued on 25 August 2021 and Interlocutory Judgment had been entered by consent against the defendants on 30 May 2023. THE ACCIDENT 2.It is undisputed that, at the time of the Accident, the plaintiff (who was 55 years old) was working as a general labourer for the 1st defendant. According to the Statement of Claim, at around 9am on 20 November 2018, when the plaintiff and her co-worker were working at a mud pit in a construction site in Kwun Tong, an excavating bucket of an excavator suddenly moved to and down the pit where the plaintiff was. In order to rush out of the pit so as to avoid being hit, the plaintiff grabbed a metal board by her left hand, and as she did so, she lost her balance and slipped. Her left shoulder was sprained and/or stretched. As a result, she suffered personal injuries. INJURIES AND TREATMENT 3.The followings are adopted from various medical reports placed before the Court. 4.On 20 November 2018, after the Accident, the plaintiff attended A&E Department of the United Christian Hospital for treatment. She complained of left shoulder pain. Physical examination showed that there was marked decrease in range of motion of her left shoulder in all directions due to pain. X-ray of her left shoulder showed no fracture. Diagnosis was left shoulder sprain. She was discharged on the same day and was given sick leave for 5 days. She was advised to follow up at general out-patient clinic in one week’s time if there was no improvement. 5.On 26 November 2018, the plaintiff attended Ha Kwai Chung Polyclinic General Out Patient Clinic. She complained of mechanical left shoulder pain which was worsened on left limb elevation. Physical examination showed no local swelling or bruises but there was mild diffused tenderness over her left shoulder. The active range of movement was limited in all directions. She was given analgesics and referred to receive physiotherapy treatment. 6.On 4 December 2018, the plaintiff attended A&E Department of Princess Margaret Hospital (“PMH”). Physical examination revealed tenderness and muscle spasm at her left shoulder and paraspinal region of the neck. Grip power of her left hand and range of movement of her left shoulder were decreased. She was referred to the Orthopaedics Specialist Out-Patient Clinic for further treatment. During 11 to 19 December 2018, the plaintiff attended the A&E of PMH for three more times because of residual left shoulder pain. She was treated and discharged on each occasion. 7.On 24 December 2018, the plaintiff attended South Kwai Chung Jockey Club General Out Patient Clinic because of residual left shoulder pain, which got worse on elevation of left upper limb. Physical examination showed no local swelling, bruise, or tenderness over her left shoulder. The range of movement of left shoulder was limited in all directions. 8.On 27 December 2018, the plaintiff first attended the Department of Orthopaedics and Traumatology, PMH upon referral by A&E of that hospital. She was referred to receive physiotherapy and occupational therapy treatment. 9.On 15 March 2019, a private MRI of the plaintiff’s left shoulder was performed, with the following results:-
10.On 16 September 2019, the plaintiff was admitted into PMH for left shoulder arthroscopy. An arthroscopic acromioplasty (微創肩關節鏡手術) was performed on 17 September 2019. She was then referred to have physiotherapy for further rehabilitation. Arthroscopic revealed that there were marked inflamed subacromial tissues and partial thickness tear (3mm) over articular side of supraspinatus and mild synovitis at rotator cuff interval. Excision of inflamed bursal tissue and acromioplasty was performed. 11.As the plaintiff complained of generalized left upper limb weakness, numbness and pain, she was referred to have MRI so as to rule out the possibility of brachial plexus injury. The MRI of the plaintiff’s cervical spine and brachial plexus was subsequently done on 24 April 2020, which showed cervical spondylosis. There was no significant spinal stenosis or abnormal cord signal found. Neither was obvious brachial plexus lesion demonstrated. 12.The plaintiff had received three courses of physiotherapy treatments in PMH. The first course was from 17 December 2018 to 21 May 2019, for a total of 8 sessions. Treatments included hot pack, electrical stimulation and mobilization exercises. The second course was from 18 October 2019 to 11 December 2019, for a total of 4 sessions. Treatments included hot pack, electrical nerve stimulation and mobilization exercises. The third course was from 18 February 2020 to 19 May 2020, for a total of 6 sessions. Treatments included hot pack and mobilization exercises. 13.From 12 February 2019 to 14 March 2019, the plaintiff underwent work capacity evaluation and work hardening training at the Occupational Therapy Department of the PMH. She was suggested to be discharged as she was not able to tolerate work rehabilitation due to increased pain over neck and scapula. Her case was closed on 28 March 2019. 14.On 23 April 2020, the plaintiff attended West Kowloon Psychiatric Centre for reasons of insomnia and mood symptoms. The diagnosis was adjustment disorder with mixed anxiety and depressive reactions. She was treated with SNRI antidepressant and prn hypnotic. 15.On 11 June 2020, the plaintiff attended the Prosthetic & Orthotics Department of Yan Chai Hospital. She claimed that she had injured her left shoulder with neck pain. Soft neck collar was fitted for neck support. 16.By letter dated 5 August 2020, the Department of Orthopaedics & Traumatology referred the plaintiff to the Occupational Medicine Unit, Kowloon for assessment of degree of permanent loss of earning capacity by the Medical Assessment Board as she had achieved maximal medical improvement in orthopaedic. 17.On 25 November 2021, PMH closed the plaintiff’s case as it was considered that there was “no additional input from MED/Neurology point of view”. It was also recorded that there was “no medical diagnosis” in the consultation note. 18.Intermittently, the plaintiff had also attended Chinese medicine clinic and underwent Chinese acupuncture treatment. 19.The plaintiff was given a total of 1,793 days of sick leave intermittently from 20 November 2018 to 18 October 2023. EXPERT EVIDENCE 20.The plaintiff had been examined by Dr Fu Wai Kee (“Dr Fu”) (who was instructed by the plaintiff) and Dr Wong Lok Yan Ian (“Dr Wong”) (who was instructed by the defendants) on 1 April 2022. The orthopaedic experts subsequently prepared a joint expert report dated 6 May 2022 (“the Joint Orthopaedic Expert Report”). 21.Dr Fu’s opinion may be summarised as follows:
22.On the other hand, Dr Wong opined that:
23.The plaintiff was also interviewed and assessed by Dr Law Wun Tong (“Dr Law”) (instructed by the plaintiff) and Dr Henry Kwok (“Dr Kwok”) (instructed by the defendants) on 4 August 2022. According to their joint expert report dated 13 September 2022 (“the Joint Psychiatric Report”), Dr Law opined that:
24.It was the expert opinion of Dr Kwok that:
SEVERITY OF THE PLAINTIFF’S PAIN 25.The main issue in the present case is whether the plaintiff has been suffering from pain as severe as she claimed (even up to now) such that she cannot return to her pre-accident job as construction site general labourer. 26.According to the plaintiff, even after long treatment, she is still suffering from, inter alia, the followings:
27.As pain is subjective, the Court has to assess the evidence of the plaintiff and come to a finding as to whether or not she indeed has been suffering from pain and, if so, the nature and extent of that pain. 28.In that process, the Court has to consider the plaintiff’s credibility. 29.In Hu Lan v David Golden [2023] HKCFI 873, this Court held that:
30.I will bear the above matters in mind when I consider the plaintiff’s credibility. 31.Having considered the entirety of the plaintiff’s evidence, I have come to the conclusion that she has grossly exaggerated her symptoms and disabilities. I will set out my reasons below. Surveillance recording 32.Contrary to what the plaintiff described, the surveillance video recorded on 19 April 2021 (“the Video”) shows that:
33.The plaintiff tried to salvage her case by alleging in her evidence that:
34.Rather than assisting her, the above explanation only further demonstrated that she had no hesitation in making up evidence for the purpose of advancing her claim:
35.The plaintiff’s counsel explained that she was seen in the Video using her left hand to hold her mobile phone and answer a phone call because her right hand was occupied at the material time. This explanation cannot be accepted, because if she was indeed in great pain, it would simply not up to her to choose which hand to use. 36.Mr Lam also submitted that:
37.The “probability” suggested by Mr Lam is unsupported by evidence. He has no basis to put them forward at all. They are therefore rejected. 38.I do not accept that the plaintiff was as innocent as Mr Lam described. Although she might not be a very smart witness, it is quite clear to me that she knew how to make use of her alleged body condition so as to earn the court’s sympathy. An obvious example was that whenever she was cross-examined in court to the extent that contradictions in her evidence were exposed, she would start to say that she felt uncomfortable in her chest. In my view, that was only a desperate attempt to interrupt or even terminate the cross-examination. The use of walking stick/umbrella 39.In her supplemental witness statement, the plaintiff alleged that she needed to carry a walking stick to prevent risk of falling because she always felt dizzy. She further confirmed during cross-examination that she would always take a walking stick or an umbrella with her whenever she went out alone. However, this was contradicted by what we saw in the Video, in which she was seen going out alone in the morning and in the afternoon without carrying any walking stick or umbrella. 40.When she was cross-examined on this matter, she initially said that she had not brought along her walking stick or umbrella once (“一次半次”). When she was asked to clarify how many times exactly that she had not brought along her walking stick or umbrella, she said she could not recall. Eventually, after a few more questions, she said she could not recall whether it was once or twice or more than twice that she had not brought along her walking stick or umbrella. 41.In my view, the plaintiff was probably telling the truth partially at the end because she had simply lost count. The reality is that she did not need any walking stick or umbrella at all. This is supported by the Consultation Summaries of PMH, in which it was recorded that she attended follow-up consultations alone and “walk[ed] unaided” at least on three different occasions on 27 January 2021, 10 March 2021 and 1 December 2021 respectively. Further, when the plaintiff was jointly examined by Dr. Law and Dr. Kwok on 4 August 2022, although she had brought along a walking stick, Dr. Kwok observed that she did not use it to support every step she walked. 42.In fact, this is consistent with what I observed in court: when she walked from the public gallery to the witness box, she was not assisted by anybody nor did she bring with her any walking stick/umbrella. Yet, she was seen walking normally without any difficulty. 43.The above further supports my view that the plaintiff had grossly exaggerated her disabilities. Experts’ opinion 44.The view that the plaintiff had exaggerated her disabilities is also supported by the medical experts:
45.Pausing here, it is noted that Mr Lam for the plaintiff had, in his closing submissions, repeatedly emphasised Dr Law (the plaintiff’s psychiatric expert)’s evidence that he did not find any feature suggesting that the plaintiff was malingering. Not only that, counsel also submitted that such evidence of Dr Law was not disputed by Dr Kwok. Although Mr Lam accepted that there may be exaggeration of symptom on the part of the plaintiff, he maintained that there is no evidence of malingering. 46.With greatest respect to Mr Lam, I am of the view that such a submission is totally misconceived, for he had assumed that “exaggeration” could not amount to “malingering”. This apparently is not correct. 47.The question here is whether the “exaggeration” referred to by Dr Kwok was “intentional exaggeration” or “unconscious exaggeration”. In my view, the totality of the evidence clearly points to “intentional exaggeration”, for there is no evidence that the plaintiff had, for example, suffered from an abnormal sick role, just as the plaintiff in Lam Pui Yi Anita v Secretary for Justice & Another (CACV 259/2009, unreported, 27 January 2011) had suffered. 48.However, Mr Lam for the plaintiff disagreed. He referred this Court to what Dr Fu stated below in support of the plaintiff’s case:
49.On the basis of the above, Mr Lam submitted that there is expert evidence that the plaintiff who is suffering from depressive disorder is prone to abnormal response to pain. 50.With greatest respect, this submission is made to be rejected:
Treating doctors’ notes 51.The view that the plaintiff’s condition did not match objective evidence is also supported by various medical notes[3] which recorded, for example, that the plaintiff’s symptoms or disabilities did not match MRI and that there was “discrepancy between her symptoms and MRI findings”. Indeed, even Mr Lam himself accepted that “there is some exaggeration”[4]. However, it should be pointed out that insofar it is submitted by Mr Lam that such exaggeration was due to the plaintiff’s depressive conditions, such submission is rejected. Physiotherapy reports 52.The plaintiff’s exaggeration of symptoms can also be demonstrated by reference to the physiotherapy reports which have been helpfully summarised by Mr Wan as follows:
53.The following observations may be made by reference to the above tables:
54.In my view, it is more likely than not that the reason why the plaintiff had decreased range of motion after 23 January 2020 was because she was trying to exaggerate her disabilities. My findings 55.Having taken into consideration the above matters, I am of the view that the plaintiff has grossly exaggerated her symptoms and disabilities. 56.I accept Dr Wong’s opinion that the plaintiff at most only has mild residual left shoulder ache and fatigue on prolonged exertion. 57.Indeed, such a conclusion is also consistent with what Dr Fu opined, namely, that the plaintiff’s alleged symptoms and signs cannot be completely explained on clinical ground. 58.In fact, even Mr Lam accepted that “most if not all the assessing experts opine that the actual conditions of [the plaintiff] should be better than those complained by her”[5]. It is probably because of his recognition of the weakness of the plaintiff’s case that he went as far as to say that “the plaintiff is not relying on her complaints on the pains over her body”[6]. 59.Before I leave this topic, I should also mention that since the above evidence and analysis are sufficient for me to make a finding on the plaintiff’s credibility and her allegation of pain, without disrespect to counsel, I do not propose to go into the question of whether she was lying when she alleged that her dominant hand was left hand. PRE-TRIAL LOSS OF EARNINGS AND MPF Sick leave period 60.It is undisputed that the plaintiff has been granted sick leave for a total of 1,793 days intermittently from 20 November 2018 to 18 October 2023. 61.Be that as it may, it is trite that the above is not conclusive for the purpose of assessing the plaintiff’s loss of earnings. The applicable legal principles have been set out in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd (supra):
62.In this regard:
63.On my part, I do not accept Dr Fu’s expert opinion, because apparently he has given his view on an assumption that the plaintiff had not exaggerated her injuries and pain, but this assumption has been found to be wrong above. 64.Having taken into account the opinion of the other three experts, I find that the plaintiff’s reasonable sick leave should be around three months after the date on which the plaintiff first went to West Kowloon Psychiatric Centre on 23 April 2020 for consultation. This would bring us to mid-July 2020. This coincides with Dr Wong’s opinion that reasonable sick leave should be around 9 – 10 months after the plaintiff’s operation (which was conducted on 17 September 2019). Mr Wan suggested that a slightly more generous approach may be adopted in that reasonable sick leave may be taken to be up to 31 August 2020. I accept his suggestion. 65.I am prepared to allow the plaintiff another 2 months or so (up to 20 October 2020) for the purpose of looking for a job. I do not think a much longer period should be allowed for this purpose because of the admission of the plaintiff’s counsel of the shortage in labour supply in the construction sector (see further below for my finding on the plaintiff’s ability to return to her pre-accident job). Hence, it should not take too long before the plaintiff should be able to find a new job after the expiry of her reasonable sick leave. Whether the plaintiff can return to her pre-accident job 66.Dr Fu opined that in view of the plaintiff’s current shoulder condition, she cannot return to her pre-accident work that required heavy manual exertion. It was also considered that she would be prone to have fall injury when she climbs because of her left shoulder impairment. 67.However, it should be borne in mind that Dr Fu also took the view that the plaintiff’s current symptoms and signs cannot be completely explained on medical ground. It was therefore Dr Fu’s view that the plaintiff should be assessed by psychiatric experts. 68.The plaintiff was then assessed by Dr Law and Dr Kwok. 69.Dr Law opined that the plaintiff’s working capacity will not be significantly affected by her mental condition and she is fit to resume her previous job. 70.Dr Kwok opined that “her current problem is orthopaedic rather than psychiatric”. 71.In my view, Dr Fu must have given his opinion on the basis of the plaintiff’s own description of her physical condition at the joint examination, and it was because of such description that he concluded that the plaintiff could not resume her pre-accident job. Given the Court’s assessment of the plaintiff’s credibility, such assessment is not reliable because the basis of Dr Fu’s assessment has collapsed. 72.Indeed, such opinion is also unsupported by the psychiatric experts as mentioned above. 73.Furthermore, it seems that Dr Fu had also taken into account his view that the plaintiff “is prone to have fall injury when she climbs due to her left shoulder impairment”[8] when he came to his conclusion. He had considered this aspect probably because the plaintiff had informed the experts that her work required her to climb scaffolding[9]. However, it has never been the plaintiff’s evidence that she had to climb scaffoldings in the discharge of her duty as a construction site general labourer. Neither did she ever say in her evidence that her inability to climb (whether scaffolding or otherwise) was the reason why she could not return to her pre-accident work. 74.On the other hand, I hold that Dr Wong’s opinion that the plaintiff is able to return to her pre-accident job is more reasonable in the circumstances of the case. This is so even though it appears that Dr Wong had made a mistake when he observed that the plaintiff only made a complaint on neck pain and left upper limb pain for the first time more than 18 months and almost 8 months respectively after the Accident. I am of the view that that would not affect the conclusion reached. 75.I therefore hold that the plaintiff should be able to return to her pre-accident job as construction site general labourer. Pre-accident average working days 76.A feature of this case is that the plaintiff met the Accident shortly after she commenced her employment with the 1st defendant. She started to work for the 1st defendant on 14 November 2018, and the Accident happened only 6 days later on 20 November 2018. 77.The defendants therefore submitted that, given the short period of time which is not probative of the plaintiff’s work pattern, the Court must consider not only the terms of the employment agreement but also the past income pattern (while the plaintiff was working for other employers) so as to determine the average number of days per month that the plaintiff would have worked. It was argued that since the figures for the two years immediately prior to the date of the Accident show that the plaintiff had only worked for an average of 14 days per month, the damages for pre-trial loss of earnings should be assessed on such a basis. 78.With respect, I do not accept this submission, because it has been clearly provided in the employment agreement dated 14 November 2019 between the plaintiff and the 1st defendant that the plaintiff was obliged to work for 6 days a week with a daily wage of $800. There is no evidence to suggest that the plaintiff would have breached such an agreement if the Accident did not take place. 79.I therefore accept the plaintiff’s case that the monthly income which she would have earned from the pre-accident job was $20,800 ($800 x 26). Calculation of loss 80.Damages under this head should therefore be assessed at:
81.As a matter of completeness, I should mention that even though Dr Wong opined that the Accident might have advanced the onset of the symptoms by 3 to 5 years, given my ruling that only 23 months’ loss of earnings should be awarded, no apportionment is required under this head of damages. MEDICAL EXPENSES 82.The plaintiff claims $44,035 under this head. 83.Given my finding that reasonable sick leave should have been granted only up to 31 August 2020, the plaintiff’s claim under this head should be cut down to $24,967[11]. TRAVELLING EXPENSES 84.By the same token, the plaintiff’s claim should be cut down to $3,413[12] under this head. EXPENSES FOR TONIC FOOD 85.The plaintiff claims $5,000 for tonic food. 86.In King Light Industrial Ltd. v. Lo Wai Keung [1994] 3 HKC 54, the Court of Appeal found that there was insufficient evidence to prove that the expenditure incurred on tonic food had been for the purpose of medical treatment of the plaintiff therein. However, the Court considered it proper to follow the case of Yu Ki v. Chin Kit Lam [1981] HKLR 419 and allow a nominal sum under this head where relatives of the plaintiff had spent money on food which the injured person or the relatives reasonably believed to be helpful in the recovery process even though there was no evidence to support the advisability or suitability of the food. 87.The same approach had been adopted in To Wei Kei v. Vickcore Engineering Ltd. and Another (HCPI 290/2000, unreported, 11 November 2002), in which a sum of $10,000 was awarded where the deceased suffered from prolapsed C3/C4 disc with residual spinal cord compression and had been hospitalised for 3 months. 88.In the present case, there is no proof that any tonic food had been taken upon medical advice. I would follow the aforesaid approach and allow a nominal sum under this head. I would adopt a figure of $3,000. POST-TRIAL LOSS OF EARNINGS 89.Given my findings above on the extent of injury and pain on the part of the plaintiff, I hold that she will suffer no loss of post-trial earnings. LOSS OF EARNING CAPACITY 90.Mr Lam contended in his closing submissions that in the event this Court does not allow any post-trial loss of earnings, the plaintiff should be entitled to damages on loss of earning capacity. 91.This argument was strenuously opposed by the defendants because the plaintiff has not included this head of claim in her Revised Statement of Damages. Mr Wan relied on what Chief Justice Ma said in Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 at [21] in support of his argument that a party ought not to be permitted to run an unpleaded case. 92.In reply, Mr Lam referred this Court to the case of Smith v. Manchester Corporation, 17 K.I.R. 1, 7-8, in which Scarman LJ stated that:
93.It was thus argued that:
94.With greatest respect, such an argument is not accepted. Even if “loss of future earnings” and “loss of future earning capacity” are the same in the broad sense (I express no view on this matter), I am of the firm view that the plaintiff was obliged to inform the defendants by way of pleadings that she was not only claiming for “loss of future earnings” but also “loss of future earning capacity”. It would be extremely unfair to the defendants if the plaintiff is allowed to “slip in” this claim at the trial, not to mention at the end of the trial. 95.I will therefore refuse to consider this unpleaded issue. PSLA 96.I have already set out the plaintiff’s injuries, treatments and medical conditions above and I am not going to repeat them here. 97.Mr Lam has referred this court to a number of authorities including Rai Shiva Krishna v Woo Loong Scaffolding Works Company Limited [2018] HKCFI 488, Gurung Santosh Kumar v Pacific Crown Engineering Limited & Others (HCPI 316/2005, unreported, 30 April 2008), Liu Chun Kow Joe v Lee Sau Wing (HCPI 399/2001, unreported, 15 February 2007) and Kong Lin Fat Johnny v The Incorporated Owners of Chang Pao Ching Building & Another (DCPI 1580/2010, unreported, 12 September 2014) and submitted that the appropriate “total” amount for the damages for PSLA should be $550,000. 98.I had emphasised the word “total” in the preceding paragraph because Mr Lam argued that the PSLA award in respect of the plaintiff’s orthopaedic condition and psychiatric condition should first of all be assessed separately, and then the Court should “combine”[14] the two awards so as to arrive at a “total” figure of damages for PSLA. 99.I do not accept this argument which is unsupported by authorities. It has always been the court’s practice to take into account all the injuries and disabilities (orthopaedic and psychiatric included) suffered by the plaintiff and arrive at a global PSLA figure at one go. 100.On the other hand, Mr Wan submitted that the Court should take into account the authorities of Yip Chi Keung v Ming Tai Construction Engineering Company Limited & Another [2022] HKCFI 543, Yiu Yuen Yee v Johnson Cleaning Services Company Limited [2019] HKDC 1110, Li Wing Kwai v Chan Hau Yu (DCPI 1883/2012, unreported, 5 September 2014), Kong Koon Man Harriman v PBIL Advertising Limited & Another (HCPI 517/2012, unreported, 20 May 2015) and Rai Shiva Krishna (supra) and that only $150,000 should be awarded as damages for PSLA. 101.Having taken into account the authorities placed before this Court, in my view, subject to my ruling below on discount, the appropriate amount of damages for PSLA (covering both the plaintiff’s orthopaedic and psychiatric conditions) is $200,000. Pre-existing condition 102.It is undisputed that there are degenerative changes in the left shoulder of the plaintiff such as tendinosis and acromio-clavicular joint hypertrophy that are pre-existing. I accept that the pre-existing conditions were asymptomatic before the Accident despite Dr Wong/Mr Wan’s suggestion otherwise which is unsupported by factual evidence. 103.In the case of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958, it was held that:
104.It was further held that there are three possible scenarios:
105.In the present case, Dr Fu opined that:
106.On the other hand, Dr Wong held the view that:
107.As submitted by Mr Wan (which I agree), it appears that Dr Fu had laid heavy emphasis on the age factor only when he arrived at his conclusion. It is not apparent that Dr Fu had taken into account the fact that the plaintiff had worked as a labourer for over 20 years. I therefore do not accept Dr Fu’s opinion that the plaintiff’s condition should fall within scenario (1). 108.In my view, Dr Wong’s opinion that the plaintiff’s condition falls within scenario (2) should be accepted. Indeed, his opinion that “the presence of tendinosis of supraspinatus, as shown from the MRI, made the tendon more prone to rupture with relatively minor sprain as in this case”, was not disputed by Dr Fu. 109.Having said that, I am of the view that Dr Wong’s assessment that only 30% of the plaintiff’s left shoulder condition should be attributed to the Accident is on the low side, particularly when it is my finding that the plaintiff’s degenerative conditions were asymptomatic before the Accident. 110.I hold that 70% of the plaintiff’s left shoulder condition should be attributed to the Accident. Hence, the damages for PSLA should be discounted by 30%. The award should therefore be assessed at: $200,000 x 70% = $140,000. 111.For the sake of completeness, I should also mention that I reject Mr Lam’s submission that the discount should only be applicable to the orthopaedics part of the injuries. First, as explained, when the Court decides on the appropriate level of damages for PSLA, the Court would take into account all injuries and disabilities at one go. Second, even on the assumption that the award of PSLA on the plaintiff’s psychiatric condition can be distinguished from her orthopaedic condition (which is not), since the psychiatric problem of the plaintiff was caused by her physical disabilities, it is reasonable and logical for the apportionment to be applicable to the damages for PSLA awarded on her psychiatric problem as well anyway. SUMMARY OF DAMAGES AWARDED 112.In summary, the plaintiff shall be awarded the following damages:
113.I make the following orders on interest:
COSTS 114.I make a cost order nisi that the defendants shall bear the costs of the plaintiff on the assessment of damages (including all costs reserved, if any), to be taxed if not agreed. The plaintiff’s own costs shall be taxed in accordance with the Legal Aid Regulations. 115.The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof. Any application to vary the costs order nisi shall be dealt with on papers[15].
Mr Simon H. W. Lam, instructed by Victor Yeung & Co, for the plaintiff Mr Kev L. H. Wan, instructed by Lee & So, for the defendants [1] Paragraph 107 of the plaintiff’s witness statement [2] Paragraph 19 of the plaintiff’s closing submissions [3] Bundle 7, at pages 131, 142 and 159 [4] Paragraph 32 of the plaintiff’s closing submissions [5] Paragraph 29 of the plaintiff’s closing submission [6] Paragraph 4 of the plaintiff’s reply submission [7] The plaintiff first went to West Kowloon Psychiatric Centre on 23 April 2020 for consultation [8] Paragraph 13 under the section “Comments” of the Joint Orthopaedic Expert Report [9] Paragraph 1 under the section “Employment and social history” of the Joint Orthopaedic Expert Report [10] 21 November 2018 – 20 October 2020 [11] Mr Lam for the plaintiff accepted that this sum should be allowed in the event the Court finds that reasonable sick leave should only be up to 31 August 2020 [12] Ditto [13] Paragraph 7 of the plaintiff’s further reply submissions [14] Paragraph 119 of the plaintiff’s closing submissions [15] Consent of the parties has been given at the trial |
Cases cited in this judgment
Further hearings and rulings under HCPI 279/2021