Sandhu Jatinder Singh v. Ma Shiu Ming and Another
Read the full judgment text of DCPI 2647/2022 on BabelCite. This District Court judgment was delivered on 27 August 2024.
1. This is the assessment hearing of the claim by the Plaintiff Mr Sandhu Jatinder Singh (“ P ”) for damages for personal injuries arising out of a traffic accident on 7 September 2020 (“ Accident ”) met by him when riding a motorcycle.
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DCPI 2647/2022 [2024] HKDC 1376 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION PERSONAL INJURIES ACTION NO 2647 OF 2022 ———————— BETWEEN
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———————— JUDGMENT ———————— INTRODUCTION 1.This is the assessment hearing of the claim by the Plaintiff Mr Sandhu Jatinder Singh (“P”) for damages for personal injuries arising out of a traffic accident on 7 September 2020 (“Accident”) met by him when riding a motorcycle. 2.Interlocutory judgment in default of defence was entered on 21 September 2022 against the 1st Defendant Mr Ma Shiu Ming (“D1”), the driver of another motorcycle involved in the Accident. 3.D1 has not entered an appearance in these proceedings. 4.The 2nd Defendant The Tokio Marine and Fire Insurance Company (Hong Kong) Limited (“D2”) was the motor insurer of D1. By an order dated 28 October 2022, it was granted leave to join in these proceedings to defend the issue of quantum. 5.P was the only witness of fact called at the hearing. 6.The evidence of the reports of public and/or private hospitals and/or clinics as to the treatment and care of P has been ordered to be adduced as agreed evidence (as to admissibility and authenticity) without calling the makers thereof. 7.Joint orthopaedic experts examination of was conducted on 30 May 2023. The Joint Orthopaedic Expert Report dated 11 August 2023 (“JOER”) commissioned by the experts has been ordered to be adduced without calling them at trial, subject to the directions of the trial judge. P’S CASE ON INJURIES AND DISABILITIES 8.Prior to the Accident, P was a self-employed food delivery worker. 9.At the time of the Accident, whilst riding on his motorcycle in making delivery, P’s motorcycle was collided by the other motorcycle driven by D1. As a result he fell on his right side to the ground. He sustained injuries including right (R) wrist sprain, left (L) 4th and 5th fingers fractures and abrasion wounds, and abrasions to his L elbow and R knee. 10.P’s case is that despite treatment, he has suffered in the past 4 years and continues to suffer now pain, weakness and numbness in the R wrist and the L injured fingers. The residual symptoms have resulted in a weakened handgrip of his L hand. He dares not resume driving motorcycle as he cannot control the heavy brakes and the heavy motorcycle with his weakened L handgrip and painful L injured fingers. 11.His pleaded case as set out in the Revised Statement of Damages (RSOD) filed on 25 September 2023 is that he has not resumed work but remained unemployed since the Accident. He would only be able to perform light duty work such as a security guard. 12.On the other hand, P gave evidence in court, as he had reported to the medical experts during joint examination, that he had started working as a part-time security guard soon after sick leave expired on 4 August 2021. 13.The residual disabilities have allegedly rendered P unable to enjoy life as a normal person, particularly given he is L-handed. He has to switch to use mostly his R hand to avoid causing pain to his dominant L hand. He is occasionally woken by pain, and his quality of sleep is affected. He has to take painkillers to reduce the pain, especially during winter time. The continuous pain has also affected his daily activities, such as watching TV and cooking, and he cannot comfortably do exercises. D2’S CHALLENGE 14.D2 has no dispute on the injuries sustained by P in the Accident as supported by the medical evidence, but argues that the alleged severe residual disabilities and their impact are highly exaggerated. 15.D2 challenges genuineness of P’s complaints, length of a reasonable sick leave and P’s work capacity in resuming his pre-accident work, in gist, credibility of P. 16.D2 argues with reference to the medical reports that P had long recovered with probably only minimal residual pain in his L injured fingers which should not affect his work capacity or resumption of work as a food delivery worker. Sick leave should end by March to April 2021. He should be able to resume his pre-accident work after the sick leave, and indeed he did resume working during the sick leave. MEDICAL EVIDENCE 17.P was admitted to the Accident & Emergency Department (A&E) of North Lantau Hospital. He was then transferred to the Department of Orthopaedics and Traumatology (O&T) of Princess Margaret Hospital (PMH) for management. 18.Examination revealed the following injuries:
19.The abrasion wounds were treated and wrist resting splint was given. P was discharged from the hospital on 10 September 2020. 20.On 14 September 2020, P was re-admitted to the O&T of PMH and had an operation of reduction and internal fixation for treatment of the L little finger PP fracture. The surgeon decided on conservative treatment for the L ring finger MP fracture after examination under anesthesia. P was given buddy splint for the injured fingers. He was discharged from the hospital on the following day on 15 September 2020. 21.P then attended regular follow up at the O&T out-patient clinic of PMH for about a year up to 4 August 2021. 22.Subsequent serial x-rays report of the L little and ring fingers showed satisfactory bone reunion of the healed fractures. 23.P was referred for physiotherapy treatment for the L little finger injury at the Physiotherapy Department of PMH. He attended a total of 14 treatment sessions during the period from 29 October 2020 to 28 January 2021. 24.He also attended occupational therapy and work rehabilitation sessions for hand and upper limb rehabilitation at the Occupational Therapy Department of PMH during the period from 21 October 2020 to 11 March 2021. 25.At the last Work Rehabilitation Assessment (WRA) conducted on 11 March 2021, P reported subjective complaint of slight decreased pain over the L little finger. No mention is made of R wrist pain or other symptoms. 26.The occupational therapist upon the last WRA assessed P’s overall work capacity to be not matched with his previous job demand as a food delivery worker, with significant degree of limitation – this is P’s pleaded case as set out in the RSOD. P was discharged from occupational therapy after O&T follow up on 17 March 2021 in view of his static progress. 27.The PMH O&T consultation summaries all along record P’s complaints/ findings of residual pain/swelling/numbness of the injured L little and ring fingers. 28.Intermittent sick leaves were granted from the day of the Accident up to 4 August 2021 for the L little finger PP fracture and R wrist injury. 29.The above relatively simple account covers all treatments attended by and sick leave granted to P as a result of the injuries sustained in the Accident. P did not seek further treatment after 4 August 2021. 30.For the purposes of assessing credibility of P with regard to his complaints of prolonged pain and disabilities despite treatment, this court has, as suggested and submitted by counsel for D2 Mr Chung, taken a close look and considered the contemporaneous medical records, in particular the consultation records which record P’s symptoms and disabilities reported to the treating doctors in different periods shortly after the Accident. 31.The discharge summary dated 7 September 2020 and the out-patient treatment / progress sheet dated 29 October 2020 of the O&T of PMH record P to be right handed. 32.The PMH O&T consultation summary dated 30 September 2020 records P’s report of no right wrist pain. Examination revealed no swelling or tenderness, active range of movement in all aspects was near full, and without pain. Consultation summaries of subsequent follow ups on 19 October 2020, 30 November 2020, 1 February 2021 and 17 March 2021 all record the same nil pain or tenderness, nor any abnormal findings of the R wrist. 33.Consultation records of the O&T of PMH show that P had declined analgesics during follow up on 17 March 2021, and none was prescribed to him, nor in the subsequent follow ups. 34.P had in fact attended an earlier WRA with the Physiotherapy Department of PMH on 5 February 2021, more than a month prior to the last WRA on 11 March 2021. He complained of severe L little and ring fingers pain, and was noted to have low pain threshold. He could manage unilateral carrying of 20 lbs but he avoided using the L little finger. He reported to be not confident to ride a motorcycle due to pain in the L injured fingers and difficulty in grabbing the handbrake. L and R handgrip strength was found to be 14 kgf and 48 kgf respectively. 35.The occupational therapist at this earlier WRA assessed P’s performance and concluded that his work capacity matched physical demand of previous job as a food delivery worker, but not confident to ride a motorcycle. 36.The records also show that during follow up on 17 March 2021, the treating doctor had explained to P that his condition had become static and treatment was completed. Sick leave will soon be terminated and he was advised to return duty/change job as required. MEDICAL EXPERT EVIDENCE 37.P was jointly examined by orthopaedics expert Dr Wong Chin Hong (“Dr Wong”) for P and Dr Peter Ko (“Dr Ko”) for D2 on 30 May 2023, about 2 years 9 months after the Accident. The JOER was commissioned pursuant to the joint examination. 38.As recorded in the JOER, P still complained of unresolved R wrist pain, continuous R ring finger pain and R little finger pain and numbness affecting weight handling capacity at the time of the joint examination. He demonstrated minimal L handgrip power, to the extent that he could not even hold a glass of water with his left hand. He reported that he was L-handed, but due to the L fingers injuries, he was using his R hand exclusively for all activities. He reported that he still required to take painkillers 2 to 3 times a month. 39.P reported to the experts that he has not tried driving a motorcycle at all, but he has been driving his private car (with automatic gear) sometimes. 40.The experts are agreed, as stated in the JOER, on the diagnoses, treatment and status of recovery of P’s R wrist and L little and ring fingers injuries. 41.For present purposes, it should suffice to set out a summary of the medical experts’ agreed or slightly different opinions on the permanent disabilities and their impact on P’s work capacity as follows:
P’S EVIDENCE GIVEN AT TRIAL 42.P gave evidence in Punjabi. He insisted in his live evidence that his R wrist is still painful, and he has pain sometimes. 43.When being pointed out during cross examination by D2’s counsel that the contemporaneous medical and consultation records show that his R wrist problems had largely, if not completely, resolved by 30 September 2020, P replied that he had all along told the doctors that he still had R wrist pain sometimes. There must be some misunderstanding with the doctor as he did not speak English. 44.When it was pointed out to him that the consultation summary of the first consultation on 30 September 2020 at the O&T of PMH records “…came with wife…right wrist no pain”, P replied that he was accompanied by his wife at the first consultation only as his wife could speak English. He had attended all subsequent consultations alone. 45.Contemporaneous consultation summaries however show that P was accompanied by his wife, his son and friend (as interpreter) in most of the subsequent consultations. P gave no further explanation, but insisted by saying that “no, I went alone. I always went alone”, and that he had informed the doctors all along that he still/sometimes had pain in his R wrist and L injured fingers. 46.P confirmed that both his wife and son could speak English. He was adamant that he had informed the doctors “I had continuous pain, but now it is sometimes pain”, “I sometimes have pain but not regular pain” and “sometimes when I pick up weights, I feel pain”, and “I did say to the doctor I don’t have pain every day. When I woke up after sleep and when I work, I have pain …and when I use (my R hand) for a long time.” 47.When queried whether he was L- or R-handed, P insisted that he was L-handed. He had to switch to use the R hand since the Accident because of the painful L injured fingers. 48.When asked whether he could hold a glass of water with his L hand (which he reported in the negative to the medical experts), P answered that “Yes I can hold and drink, but I cannot hold for long”. 49.When asked further whether he had to use his R hand exclusively for all activities (as he had reported to the medical experts), P became shifty and said he used mostly his R hand and could only do light acts, such as picking up a spoon, with his L hand because of pain, and also he was scared of dropping things or injuring his L injured fingers further. He repeatedly said he was scared of using his L hand for fear of causing pain and further injuries. 50.When cross examined on how his residual R wrist and L little and ring fingers disabilities have affected his daily living activities, such as watching TV (as stated in his witness statement §21), P explained that as he had only one sofa at home where he and his family would sit on to watch TV, he was worried that his injured L fingers would come into contact with others accidentally causing pain, so he simply “moved out from there”. When asked why he could not bring a stool to sit and watch TV, he said he did not feel like watching because he had pain sometimes, so he just went in his room and sat in there. 51.During cross examination, counsel for D2 suggested to P that the R wrist and L fingers pain had subsided a few months after the Accident as he had declined analgesics during follow up on 17 March 2021 at the O&T of PMH, and none was prescribed to him thereafter. 52.P was adamant that he still had pain at that time, and he even requires analgesics sometimes until now. He declined analgesics on that occasion because he was prescribed with much analgesics on previous follow ups. He had an abundant stock at home so he did not want more of it. 53.P agreed upon cross examination that during follow up by 17 March 2021, the doctor had told him that sick leave would soon expire. The purpose of further sick leaves extended until 4 August 2021 was for P to contact the Labour Department to arrange for examination by the Medical Assessment Board (MAB) (which never took place). 54.Regarding work capacity and the ability to resume driving, P’s evidence is that he dares not ride a motorcycle due to L little and ring fingers pain, so he has not been able to resume his pre-accident work as a food delivery worker. He admitted that he was able to drive a private car (with automatic gear). 55.Contrary to P’s evidence that he was rendered not able to resume food delivery work as a result of the Accident, Inland Revenue Department (IRD) records show that P received a total of $202,036, apparently all from his work with two food delivery companies (namely Delivery Hero Food Hong Kong Limited and Deliveroo Hong Kong Limited) for the year of assessment 2020/2021. 56.On P’s pleaded case that his pre-accident monthly earnings were $20,000, the IRD records for 2020/2021 indicate that P should have received earnings from food delivery work of around $100,000 for the 6 odd months post-accident period from 7 September 2020 to 31 March 2021. 57.Evidence of service payment summaries issued by another food delivery company Foodpanda show the following payments to P for delivery service provided in the periods immediately after the Accident:
58.Such income records also show that P did receive earnings for food delivery work performed during the post-accident period from 9/2020 to 3/2021, ie during the sick leave. When queried by D2’s counsel that he had in fact resumed food delivery work, P explained that the work was done by his wife and his son, though he sometimes accompanied them. He however could not drive a motorcycle or work alone. 59.When queried whether his wife and son could drive a motorcycle, P replied that they drove their private car for the delivery work. He would also drive sometimes for 1 to 2 hours but no more. 60.When asked why the son and wife did not apply to work in food delivery under their own accounts, P said the application would take a long time. Also the son did not normally live in Hong Kong but in Australia; he only helped out P with the delivery work sometimes when he came to visit in Hong Kong. DISCUSSION 61.On the overall medical evidence, in particular the hospital treatment records and consultation summaries, this court is inclined to accept Dr Ko’s conclusion that P had suffered a trivial R wrist soft tissue injury which had resolved shortly. He had no pain in his R wrist and had attained full range of movement within a month after the Accident by end-9/2020. No further complaint of R wrist pain was made by P in subsequent follow up consultations. 62.Other than the initial treatment as recorded in the initial A&E record, no mention is made of treatment or complaints regarding the abrasion wounds in other body areas of L elbow, R knee, etc. These should be taken to have fully healed and recovered. 63.A careful reading of the WRA reports reveals that P’s work capacity was assessed to be matched with his previous job physical demand as a food delivery worker at the earlier WRA conducted on 5 February 2021. He was noted to have the capacity to manage unilateral carrying of 20 lbs, which was above the weight handling demand in his job. The nil complaint of R wrist symptoms and R handgrip strength of 48 kgf all indicate a satisfactory or nearly full recovery of the R wrist injury. 64.The occupational therapist’s conclusion upon the last WRA on 11 March 2021 of P’s incapacity to assume his previous work was seemingly based on P’s report of lack of confidence in riding motorcycle allegedly limited by pain of the L injured fingers when gripping the handbrake, and his refusal to attend driving assessment as he had no concrete work plan. 65.The reported deterioration of the L injured fingers conditions between the 2 WRAs conducted in February and March 2021 is not supported by medical or pathological findings, and is wholly unreasonable. 66.I found P’s complaints of having R wrist pain on and off or sometimes up till now, and the great impact of the L little and ring fingers residual symptoms on his daily activities, highly exaggerated. 67.P’s assertions in his witness statement regarding lack of full movement in his R wrist, avoidance of using the L hand, impact of the residual pain on his daily activities such as watching TV, inability to hold a glass of water with his L hand, and his complaint of continuous L injured fingers pain up to the time of the joint examination are highly exaggerated. 68.Both Dr Wong and Dr Ko query genuineness of P’s complaints and the minimal L handgrip power and movements demonstrated, in light of the (much better) results shown in previous tests conducted during WRAs. P’s presentation of L-handgrip power of 0-4 kgf at the joint examination is wholly unreasonable compared to 14 kgf presented during WRAs more than 2 years earlier. 69.The alleged continuous need for painkillers for L injured fingers pain is another exaggeration, when the consultation summary back on 17 March 2021 was remarked “decline analgesics”. P explained that he had so much painkillers at home from previous consultations so did not want more – this is contradicted by medical records which state prescriptions in the 4 previous consultations of painkillers in the amounts just sufficient for the interim period until the next scheduled follow up. 70.The medical experts are agreed that P had attained MMI long ago by March-April 2021 (per Dr Ko) or August 2021 the latest (per Dr Wong), and that he should be able to resume driving motorcycle, albeit with some modification of the L handgrip according to Dr Wong. 71.P’s evidence and report to the medical experts of his being L-hand dominant, contradictory to the contemporaneous medical records of R-handedness, raises doubts of an attempt to exaggerate the impact of the L fingers injuries. 72.The IRD and service payments records show that P did resume food delivery work shortly after the Accident and during the sick leave. His explanation that such work was conducted by his wife and/or son in place of him, first raised during cross examination and without the wife and son’s evidence or witness statements in support, is unreasonable and incredible. 73.On the other hand, adduced in evidence is the relevant Independent Contractor Agreement dated 20 March 2020 signed by P with Foodpanda in which it is stipulated that the contractor, ie P, may not assign the agreement unless with the prior consent of the company. THE COURT’S FINDINGS 74.In view of the above, I take the view that P’s evidence of severe residual disabilities of his R wrist and L injured fingers/hand impacting on his daily living and inability to resume driving motorcycle is highly exaggerated and incredible. 75.This court makes findings on P’s injuries, disabilities and impact on his work capacity as follows:
QUANTUM OF CLAIM Pain, Suffering and Loss of Amenities (“PSLA”) 76.P claims damages for PSLA in the sum of $500,000 as pleaded in the RSOD. 77.Towards the end of the assessment hearing, P’s counsel Mr Choi in his closing submissions proposes an appropriate range for PSLA of $200,000 to $300,000, closer to the upper end, with reference to the following authorities:
78.PSLA awards of $150,000 to $250,000 were made in the above cited judgments in years 2000 to 2009 involving slightly more serious injuries of fingers fractures and nerve damage injuries to one or two fingers or the right thumb. These awards should be revised upwards to a range of $200,000 to $300,000 currently. 79.Counsel for D2 Mr Chung argues that the appropriate award for PSLA should not exceed $150,000. I have considered the following cases involving fingers injuries comparable to those of P in the present case referred to in D2’s opening submissions:
80.P had an operation to treat the L little finger PP fracture, and was hospitalised for a total of 6 days. I accept Mr Chung’s submissions and find that the L little and ring fingers fracture injuries and residual disabilities suffered by P should be awarded damages for PSLA in the sum of around $150,000 to $200,000. 81.Taking into account inflation since the dates of judgments cited above, and also the R wrist injury and abrasions wounds to other body areas, I assess an appropriate award for PSLA at $240,000. Pre-Trial Loss of Earnings 82.P’s pleaded pre-accident monthly earnings of $20,000 are agreed. 83.He claims as pleaded in the RSOD full loss of earnings for 11 months during the sick leave up to 4 August 2021, plus partial loss of earnings up to the notional date of trial (7 September 2024) based on notional residual monthly earnings of a security guard at $12,000, in the total sum of $515,506.90. 84.In his closing submissions, P’s counsel concedes on a reasonable sick leave of 6.37 months up to 17 March 2021 only. According to P’s evidence, sick leaves after that date were extended for the purpose of arranging for MAB assessment only. P makes no claim for partial loss of earnings after the sick leave. 85.The claim for pre-trial loss of earnings is therefore agreed at $127,400 ($20,000 x 6.37 months). P makes no claim for loss of MPF benefits. Loss of Earning Capacity 86.P has no claim for future loss of earnings, but argues that by reason of his permanent L hand/fingers disabilities suffered as a result of the Accident, he will suffer handicap and will be disadvantaged in the labour market. 87.His claim for damages for loss of earning capacity pleaded in the sum of $120,000 in the RSOD is reduced towards the end of the assessment hearing to $60,000, as submitted by P’s counsel during closing submissions. 88.The overall medical evidence does in my view support permanent mild residual pain and weakness of the fractured L little and ring fingers. P would likely suffer reduced work efficiency and effectiveness, albeit only minimal to mild on the evidence of defence medical expert Dr Ko. 89.In his job as an independent contractor involving riding his motorcycle to provide food delivery service, P would take orders through a platform, and service fees would be paid to him upon completion of the delivery orders. His position is similar to that of a casual worker, ie the provision of work and orders would depend to a great extent on his efficiency in completing delivery orders. 90.I have considered the judgment of Keith JA in Yuk Kok Wing v Lee Tim Loi [2001] 3 HKC 314 referred to by P’s counsel on, inter alia, loss of earning capacity claimed by a casual worker at p.320C-F:
91.I accept that P will be faced with a real or substantial risk that, by reason of his L fingers injuries resulted in reduced work efficiency and effectiveness, he will not be able to obtain as much work as a food delivery worker as an able-bodied person. An award under this head is appropriate. 92.Bearing in mind the mild disabilities, I consider an award for loss of earning capacity in the sum of $50,000 would be reasonable in the circumstances. Other Special Damages/ Misc Expenses 93.P claims other special damages / misc expenses incurred and paid in respect of medical, travelling, tonic food and motorcycle repair expenses in the respective sums of $5,365, $2,000, $3,000 and $9,000 as set out in the closing submissions of P’s counsel. 94.The medical expenses claimed are supported by medical records and receipts. These should be allowed. 95.Travelling expenses claimed are of a modest amount given the numerous O&T, physiotherapy and occupational follow ups and treatment sessions attended by P. The claim is allowed. 96.As for the claim for tonic food expenses, there is no evidence from P or of any receipts in support other than a bare plea in the RSOD. It is not known what kinds of tonic food were purchased or consumed, and whether such was taken upon medical advice or for the purpose of enhancing recovery from the injuries. No provision should be made. 97.P claims damages for property damage / motorcycle repair cost of $9,000, which is supported by a receipt dated 23 April 2021. 98.D2’s counsel initially raised the objection that it being the insurer should not be held liable to pay for the property damage in accordance with sub-sections 10(1) and 6(1)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. This is misconceived. The claim for property damage arising out of D1’s tortious act should appropriately form part of D1’s liability to P established in the present action based on negligence. 99.Parties agreed at the closing submissions stage on the property damage claim / motorcycle repair cost of $9,000. This is awarded accordingly. 100.I make an award of $16,365 in respect of P’s claims for property damage and medical and travel expenses incurred. Interest 101.Interest on PSLA is assessed at the usual 2% pa from the date of the writ of summons to the date of judgment. Interest on all pre-trial special damages is assessed at half of the judgment rate from the date of the Accident to the date of judgment, and thereafter at judgment rate until payment. Summary on Quantum 102.I summarise the award for P’s claim for damages as follows:
103.P’s total claim herein is thus assessed at $433,765 (plus interest). Credit should be given for the interim payment paid by D2 in the sum of $100,000. ORDER 104.I therefore make an order that D1 do pay damages to P in the sum of $333,765 plus interest. 105.Costs should follow the event. I make an order nisi that D1 and D2 should pay P jointly and severally the costs of and occasioned by the assessment of damages (including all costs reserved, if any), to be taxed if not agreed, with certificate for counsel. 106.In the absence of application from the parties to vary this costs order within 14 days, the costs order nisi will become absolute. OTHER MATTERS ON COSTS 107.This court noted with disapproval the improperly prepared RSOD and P’s Certificate of Time Estimates for Trial filed by P’s solicitors. This has necessitated amendments to the RSOD, and resulted in a waste of judicial resources and costs. 108.D2’s counsel has confirmed that it has no claim for wasted costs which are modest, and would be difficult to quantify. 109.I accept the explanation and apology offered in court by Mr Anthony Lai of P’s solicitors, and his undertaking to waive the solicitors and own client costs of P pertaining to the Amended RSOD and P’s Certificate of Time Estimates for Trial. 110.Lastly, I thank counsel for their assistance.
Mr Samuelson Choi, instructed by M.C.A. Lai Solicitors LLP, for the Plaintiff The 1st Defendant was acting in person and did not appear Mr Gary Chung, instructed by Winnie Leung & Co, for the 2nd Defendant |
Cases cited in this judgment
Further hearings and rulings under DCPI 2647/2022