Tsui San Yau v. Tsang Wai Hong

HCPI 657/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.657 OF 2003

---------------------

BETWEEN

----------------------

Before : Hon Suffiad J in Court

Dates of Hearing : 19 and 22 – 26 November 2004

Date of Judgment : 26 April 2005

---------------------------------------------------------

ASSESSMENT  OF  DAMAGES

---------------------------------------------------------

1.The plaintiff brings this claim for damages against the defendant in respect of personal injuries suffered by him when he was knocked down by a private car driven by the defendant along Cyberport Road shortly after 6 p.m. on 16 July 2002.

2.At the time of the accident, the plaintiff was walking out from a construction site having just finished work for the day and was crossing the road when the defendant’s car, whilst pulling out to pass the car in front of it which had stopped or slowed down, hit the plaintiff.

Liability

3.At the commencement of the trial, liability was admitted by the defendant and the parties also came to agreement that contributory negligence on the part of the plaintiff be 5%.

4.What remains therefore is the quantification and assessment of the damages sustained by the plaintiff.

Injuries and treatment

5.The plaintiff was taken by ambulance to Queen Mary Hospital (“QMH”) after the accident, initially to the A&E Department, and then admitted to the Surgical Unit.

6.When examined at the A&E Department, he was alert with normal vital signs.  A laceration was found on the left forehead and abrasion on the left shoulder.  He was later admitted to the Surgical Unit.

7.At the Surgical Unit, physical examination revealed scalp laceration, facial swelling, and left shoulder abrasion.  CT brain revealed no abnormality.  The scalp laceration was sutured with three stitches under local anaesthesia.  He was discharged on 17 July 2002 and given initial sick leave up to 30 July 2002.

8.When that sick leave expired, the plaintiff attended Aberdeen Jockey Club Clinic (“AJCC”) on 31 July 2002 complaining of fever, nightmare, restlessness, shortness of breath and choking sensation, requesting further sick leave.  At AJCC he was diagnosed with anxiety and post-traumatic stress disorder and was given further sick leave up to 6 August 2002

9.Again when this further sick leave expired, the plaintiff returned to AJCC on 7 August 2002 complaining of chest discomfort, insomnia and nightmare.  On this occasion he was referred by AJCC to the A&E Department of QMH by ambulance because of the result of an electrocardiogram taken.

10.At QMH, the plaintiff was diagnosed to have post-traumatic stress disorder.  However, the plaintiff refused clinical psychologist referral.  His request for two weeks of sick leave was declined but was granted sick leave for two days only.

11.On 9 August 2002, the plaintiff again attended AJCC claiming himself unfit for work due to his insomnia.  It was however explained to him by AJCC that he was physically fit to return to work and sick leave for only one day was given him.

12.He consulted Glory Medical Centre on 10 August 2002 and was diagnosed as suffering post-traumatic stress disorder with two days sick leave granted to him.

13.On 13 August 2002 he went back to AJCC complaining of headache, malaise and insomnia and was given one day sick leave.

14.On 14 and 22 August 2002, he attended Glory Medical Centre and obtained two days sick leave there each time.

15.On 2 September 2002, the plaintiff attended follow up at QMH Neurosurgery Department where he complained of occasional headache, dizziness, tiredness in the daytime and insomnia at night.  It was also noted in the medical records that he was getting sick leave from general practitioner and “just back to work for 2 days, not much problem.  Clinically stable, Power full”.  The plan of management was for follow-up in three months.

16.Thereafter for over three months the plaintiff did not consult the doctors at either QMH or AJCC and was not given any sick leave until 9 December 2002 when he attended the Neurosurgery Department at QMH.  On that occasion he complained of occasional headache and dizziness and was given sick leave until 6 January 2003.

17.When that sick leave expired, he attended the Neurosurgery Department of QMH again on 6 January 2003 and was given sick leave up to 6 March 2003.

18.On 3 March 2003, the plaintiff again attended the Neurosurgery Department of QMH complaining of occasional headache, dizziness, nightmares and palpitations when looking down from height.  Together with the assessment by the occupational therapist that he was not fit for work since his grip power decreased and phobia from height, he was given sick leave up to 27 May 2003.

19.On 26 May 2003, he again consulted the Neurosurgery Department.  He was diagnosed to suffer from post-concussional syndrome.  Electrocardiogram was taken and he was given further sick leave up to 15 September 2003.

20.On 15 September 2003, he again attended the Neurosurgery Department.  Post-concussional syndrome was the diagnosis with the plaintiff complaining of headache, dizziness, inattention and insomnia.  Sick leave was granted up to 15 March 2004.

21.On 1 March 2004, the plaintiff again consulted the Neurosurgery Department of QMH where his sick leave was extended to 1 September 2004.

Neurological examination

22.Experts in neurology appointed by the parties, namely, Dr Edmund Woo and Dr Brian Chao, examined the plaintiff at a joint examination towards the end of 2003.  They came to somewhat unanimous findings as to the plaintiff’s neurological condition as follows :

(a)	the plaintiff complained to them of headache, giddiness, memory impairment, apprehension of sitting at the front of a bus or if the vehicle brakes suddenly, fear of heights, poor and fragmented sleep and nightmares;
(b)	the plaintiff can manage public transport such as MTR and train.  He can commute by himself to visit his wife in China;
(c)	mental state examination showed no abnormality except impairment in tests of recall;
(d)	the plaintiff suffered a mild head injury in the traffic accident and suffered from residual headache, non-specific giddiness and memory loss, consistent with the diagnosis of a post-concussional syndrome, which accounts for 1% impairment of the whole person;
(e)	from the neurological perspective, the plaintiff should be able to resume his pre-accident employment as a construction site worker one year after the date of the traffic accident.  The impaired memory may limit his performance at work while the headache and giddiness may compel periodic rests during the day; and
(f)	his post-traumatic anxiety has not responded adequately to medication alone and the addition of psychological counselling and behavioural therapy may be fruitful.  There is a good chance that with six months’ treatment along these lines, plaintiff may be able to resume his pre-accident employment.

Psychiatric condition

23.The plaintiff started to consult doctors at the Western Psychiatric Centre on or about 10 March 2003 when he was referred to them for insomnia and hypnotics dependence.  There was no reliving and no intrusive memory of the road traffic accident.  The diagnosis was an adjustment disorder with the differential diagnosis being post-concussional syndrome, non-organic insomnia.  At that time the plaintiff still had a lot of headache and it was stated that the plaintiff was not keen to resume work.  The plan was to resume work after the compensation issue was over.

24.In July 2003 the plaintiff again consulted at the Western Psychiatric Centre.  It was noted that he had frequent headaches, dizziness, anxiety and palpitation when on public transport.  He complained of insomnia, subjective poor memory and concentration.  It was also noted that there was no persistent depressive mood, negative cognition or suicidal idea and no psychotic symptoms.  Mental examination revealed no definite sign of general anxiety disorder, phobia or major depressive disorder.  The diagnosis remained as an adjustment disorder.

25.In October 2003, when the plaintiff again consulted the Western Psychiatric Centre, there were reported changes in mental state.  It was noted that he had developed ideas that he was being followed and started to hear voices of children when he was alone at home.  No other hallucination, illusion or delusion were elicited but that he was a bit depressed by the on and off voices.  It was also noted that these could be transient psychotic symptoms but further assessment was needed before any definite conclusion could be made.  The diagnosis was still adjustment disorder but would be reviewed after clarification of the recent changes in the mental state.  His anxiety and insomnia were triggered by the accident but there could be other factors which perpetuated the symptoms.  Plaintiff’s response to hypnotics was fair, his anxiety had improved and he could travel on public transport alone.  The treating doctors supported the plaintiff to gradually take up his pre-accident job provided that the recent changes in mental state are transient.

26.Experts in psychiatry instructed by both parties, namely Dr K. Singer (for plaintiff) and Dr Benjamin Lai (for defendant) examined the plaintiff in November and December 2003.  Their opinion differ vastly from each other and is the main dispute between the parties in so far as the plaintiff’s medical condition is concerned.

27.In his report Dr Singer concluded that the plaintiff was suffering from Post Traumatic Stress Disorder (“PTSD”) of a mild to moderate degree and that the plaintiff also suffers a mild degree of Post Concussional Syndrome (“PCS”).

28.Dr Lai however concluded that that “the plaintiff has not given a true representation of his condition.  His information appears not to be reliable.  He might have exaggerated his symptoms and under-reported his level of psychosocial adjustment.  It is thus not appropriate to rely on his information as the basis for the psychiatric diagnosis and estimation of severity and prognosis.”

29.Based on the medical reports and clinical notes of the government hospitals, Dr Lai opined that “assuming that plaintiff did have psychiatric symptoms then (i.e. July to September 2002), it was likely to be a mild degree.  The symptoms recorded do not fulfil the diagnostic criteria for PTSD and the diagnostic criteria for PCS.  He might fulfil the diagnostic criteria for an adjustment disorder.”

Pain suffering and loss of amenities (“PSLA”)

30.I have no difficulty accepting the joint opinion of the neurological experts instructed by both parties respectively since their opinion do not differ much, if at all, in so far as the neurological condition of the plaintiff is concerned.

31.The major dispute in this case however concerns the psychiatric condition of the plaintiff and not his neurological condition.

32.In so far as his psychiatric condition is concerned, having considered all the evidence in this case, and in particular the reliability of the plaintiff as a witness and his evidence, I prefer the opinion of Dr Lai that at most the plaintiff is suffering a mild adjustment disorder but not from any form of PTSD or PCS.

33.I am unable to accept the opinion of Dr Singer for the following reasons.

34.Firstly, it is the evidence of Dr Singer that his opinion was based on what the plaintiff complained to him of the plaintiff’s condition and symptoms as being true.  It is Dr Singer’s evidence that he would normally accept what a patient tells him as true unless there is good reason not to believe that patient.  In the present case, he had accepted the plaintiff’s complaint to him of the plaintiff’s condition and his symptoms as true and upon that was based his opinion.

35.Secondly, a number of aspects in the evidence (which I shall come to and deal with) has shown the plaintiff to be unreliable as a witness, in particular as to his medical conditions and symptoms.  This has led me to conclude that there was much exaggeration by the plaintiff as to his condition and symptoms in this case.

36.It was all along the plaintiff’s case that he was unable to go out or take public transport on his own due to the fact that his psychiatric condition had caused him to become irritated and get into argument or trouble with other pedestrians in public.  Indeed on the day of the joint examination by the psychiatric experts for which the plaintiff had to attend at the clinic of Dr Singer in New World Tower in Central, the plaintiff was accompanied to the clinic in New World Tower by his brother who lived in Wong Chuk Hang in Aberdeen when the plaintiff himself lived in Ho Man Tin district.

37.However, unknown to the plaintiff, private investigators instructed by the defendant was on that day keeping the plaintiff under surveillance and was video taping the plaintiff (and his elder brother) when they attended the clinic at New World Tower.

38.The video recording showed that when the plaintiff left the clinic in New World Tower, his brother had come along to take him away.  Yet instead of taking the plaintiff back home, the two of them then took a bus back to Wong Chuk Hang where the brother got off (presumably to return home) and the plaintiff alone, then made his own way back to his home in Ho Man Tin.

39.When confronted with this video, the plaintiff had no explanation to give as to why he needed his brother to escort him to the clinic in New World Tower when he could make his own way back home from Wong Chuk Hang all by himself.

40.The only answer the plaintiff could give was to say that he did not know the way to the clinic in New World Tower and needed his brother to take him there, yet that was not the reason given to the experts as to why his brother needed to escort him to and from the clinic.

41.Indeed, when Dr Singer was confronted with the video recording showing the plaintiff to have made his own way back home from Wong Chuk Hang by public transport alone, Dr Singer’s reaction to that was to revise his opinion saying that in those circumstances, he felt that the PTSD of the plaintiff should only be mild rather than moderate.

42.Another aspect of the evidence which shows up the plaintiff to be greatly exaggerating his medical condition is the fact that it appears from the medical notes and record from the various hospitals consulted by the plaintiff that the plaintiff was only interested in obtaining sick leave certificates each time he went for a consultation.  Indeed those hospitals or doctors who did not or who refused to grant him any sick leave, the plaintiff did not bother to return for consultation.  Whereas he would always make his way back to those hospitals or doctors who were ready or prepared to grant him the kind of sick leave that he requested for.

43.There are also some aspects of the plaintiff’s evidence which also caused me to conclude that the evidence of the plaintiff taken as a whole to be unreliable.  Those other aspects will be dealt with when I come to deal with the issue of loss of earnings.

44.Quite apart from these aspects in the evidence which led me to the conclusion that there has been exaggeration in the plaintiff’s evidence and which makes his evidence unreliable, a further reason for my preferring the opinion of Dr Lai to that of Dr Singer is the fact that the opinion of Dr Lai is also consistent with the diagnosis made of the plaintiff by the treating doctors at the Western Psychiatric Centre.

45.I therefore find that the plaintiff did suffer a mild head injury and from which little or no neurological deficit resulted, in so far as his psychiatric condition is concerned, the plaintiff had a mild adjustment disorder but not a PTSD or a PCS.

46.I also accept that the adjustment disorder manifested itself in occasional headaches and dizziness as well as some insomnia in the plaintiff and that condition persisted for about a year after the accident.

47.I have been referred to a number of local awards dealing with PCS as well as PTSD and where the awards for PSLA ranged up to $400,000.

48.Accepting that in the present case, there was a mild head injury and an adjustment disorder, but that the occasional headaches, dizziness and insomnia of the plaintiff manifested itself for over a year after the accident, an award of $200,000 would be in line with the previous awards cited to me in submission by counsel.

49.$200,000 would be accordingly assessed for PSLA for this plaintiff.

Pre-trial loss of earnings

50.I accept the evidence adduced by the plaintiff and also by his boss Mr Yuen Chun Yuet, a director of Sun Hung Lee Engineering Co. Ltd, the employer of the plaintiff at the time of this accident that the plaintiff was paid a daily wage of $550 working as a construction site worker at the Cyberport Road construction site.

51.What I do not believe from the evidence of the plaintiff and from Mr Yuen is that the plaintiff worked on average 28 days a month during the period September 2001 to June 2002.

52.That evidence is clearly shown to be another exaggeration by the plaintiff when one takes account of the immigration record from the Hong Kong Immigration Department which shows that the plaintiff was on average out of Hong Kong for 4.4 days each month for the period from September 2001 to June 2002.  That being the case, it was impossible for the plaintiff to have worked 28 days each month for that same period.

53.On the other hand, the defendant rely greatly on the MPF statement relating to the plaintiff based on which it was submitted by the defendant that :

(1)	the MPF statement only show the plaintiff to have been working with Sun Hung Lee Engineering Co. Ltd from between April to July 2002; and
(2)	based on the contribution to the MPF fund by Sun Hung Lee Engineering Co. Ltd, for those four months before the accident, it should be inferred that the plaintiff was only earning $5,960, $11,140, $9,660, and $6,020 from Sun Hung Lee Engineering Co. Ltd for the months from April to July 2002 respectively.

54.I am not disposed to accept that submission from the defendant.  In my view, it is most unsatisfactory to infer what I have been asked to infer by the defendant from the MPF statement for the following reasons.

55.MPF effectively came into force in Hong Kong in December 2001.  However, it is quite notorious that even when it became mandatory in December 2001, many employers were either late or dilatory in implementing that mandatory scheme.  Even when it was implemented, I cannot rule out the possibility that some employers could be either late or even defaulted or understated their contribution.  It is therefore highly unsatisfactory to make the kind of inference that the defendant invites me to make based only on the bare MPF statement alone.

56.Mr Yuen when crossed-examined on the MPF statement was not able to assist since he was not the person who dealt with the MPF contributions of Sun Hung Lee Engineering Co. Ltd but that it was dealt with by the accounts department of the company.

57.I therefore propose to resolve that dispute by taking into account all the relevant evidence presented.

58.Given the immigration record of the plaintiff as well as the undisputed evidence that Sun Hung Lee Engineering Co. Ltd had, at that time, a construction site with ongoing project in Cyberport Road where the plaintiff normally worked as well as another site in Central and where the plaintiff worked at times when he was not required at the Cyberport Road site, it would not be unreasonable to expect that the plaintiff would be able to work for 24 days on average in a month before the accident.

59.On this basis I find the pre-accident earnings of the plaintiff to be $13,200 per month.

60.As for his sick leave period, while I note that the plaintiff was granted sick leave up to September 2002 (excepting for a period of some three months between September to December 2002 when no sick leave was granted) I am unable to ignore my earlier finding that there was a great deal of exaggeration by the plaintiff as to his condition and symptoms in this case.  In the circumstances, I cannot rule out that a large part of the sick leave granted to the plaintiff by government doctors were granted to him based on such exaggeration by the plaintiff.

61.The more appropriate course for me to take would be to follow the opinion expressed by those experts whose opinion I have accepted in this matter, namely the opinion of Dr Edmund Woo and Dr Brian Choa, both neurologists as well as Dr Lai, psychiatrist.  There is somewhat of a consensus between the three of them (but not Dr Singer) that the appropriate period of sick leave for this plaintiff suffering the kind of residual problem that he did, would be one year.

62.It would appear from that opinion by the three experts (as to the appropriate period of sick leave) that the plaintiff should have been able to return to his pre-accident work after one year.

63.However, in giving their opinion as to the appropriate period of sick leave and when the plaintiff could have resumed his pre-accident work after the accident, it does not appear from any of their reports that the experts had taken into consideration the fact that the plaintiff’s pre-accident work involved him working at height on scaffolds.  It was for this very reason that the plaintiff was paid a daily wage of $550 by his former employer before the accident.  There was evidence from another witness called by the plaintiff, Mr So Sing who was a colleague of the plaintiff that his (So’s) daily wage was only $450 because So’s work did not require him to work at height as did the plaintiff.

64.There is also evidence from the plaintiff that he has, since his sick leave expired in September 2004, found work as an interior decorator receiving a daily wage of $300 but which work does not require him to work at height.

65.Accepting therefore from the opinion of the medical experts (save for Dr Singer) that the plaintiff could have returned to work one year after the accident, nevertheless I find that the work the plaintiff could have undertaken could not have been his pre-accident work since his occasional headache and dizziness would not have allowed him to work at height on scaffolds.

66.In the circumstances, I find that there would have been partial loss of earnings to the plaintiff from July 2003 until trial.

67.Accordingly, I would assess the plaintiff to have suffered full loss of earnings for the first 12 months after the accident at $13,200 x 12 months which comes to $158,400.

68.As for the rest of the pre-trial period of 21 months from July 2003 to date of judgment, I would assess the partial loss of earnings to be $250 x 24 days x 21 months giving $126,000.

Future loss of earnings

69.The opinion has been expressed by Dr Woo and Dr Choa that from the neurological perspective, the plaintiff should be able to resume his pre-accident employment as a construction site worker.  The plaintiff’s post-traumatic anxiety has not responded adequately to medication alone, and the addition of psychological counselling and behavioural therapy may be fruitful.  According to both experts, there is a good chance that with six months’ treatment along these lines, the plaintiff may be able to resume his pre-accident employment.

70.Accepting that opinion from the two experts, and giving a further six months to the plaintiff for a total recovery, the future loss of earnings would be assessed at $250 x 24 days x 12 months which gives $72,000.

Loss of MPF benefit

71.In view of the fact that the total pre-trial loss of earnings assessed to this plaintiff was for $284,400 for the one year period after the accident, the loss of MPF benefit will simply be 5% of that assessed amount which comes to $14,220.

72.I decline to make any assessment for loss of MPF for the future loss of earnings because of expedited receipt of same.

Loss of earnings capacity

73.In the light of the findings above, the risk to the plaintiff in the labour market can at best be minimal.

74.Accepting that some of his occasional headache and dizziness may carry over and occasionally trouble him in so far as his work is concerned, even though he may be able to resume his pre-accident work, that risk to the plaintiff cannot, by any stretch of the imagination be a great risk.  This is particularly so when one takes into consideration also that the pre-accident work of the plaintiff was on a casual basis, being paid by the day.  I would therefore assess loss of earnings capacity to be only a nominal amount of $20,000.

Special damages

75.The claim for medical expenses of $1,500 and travelling at $500 is not disputed by the defendant.

76.The only item in dispute under this head of damage is the claim of $4,000 for tonic food.  The defendant is prepared to allow only $1,000 for tonic food.

77.In view of the persistent nature of the headaches and dizziness experienced by the plaintiff, albeit mild, allowing $2,000 for tonic food in all the circumstances of this case would not be unreasonable.

78.The total amount of special damages therefore comes to $4,000.

Future medical expenses

79.Having accepted that the plaintiff would require a further six months of psychological counselling and behavioural therapy, I cannot find any good reason why that cannot be given to the plaintiff in the public sector where he has been receiving treatment throughout.  The cost of such counselling and therapy in the public sector will be minimal.

80.Accordingly, I am not disposed to make an award for future medical treatment based on charges in the private sector.

Interests

81.Interests for general damages for PSLA will be awarded at 2% from the date of the Writ until judgment.  I calculate that to be $7,320.

82.Interests will also be awarded for pre-trial loss of earnings and special damages at half judgment rate from the day of the accident until judgment.  I calculate same to be $49,324.

Summary of Awards

Conclusion

84.The amount of $651,264 will have to be reduced by 5% to take into account the contributory negligence of the plaintiff agreed between the parties.

85.This gives a final figure of $618,700.

86.Accordingly, there will be judgment for the plaintiff for the amount of $618,700.

Costs

87.In view of the amount assessed in this matter, even without taking into account the contributory negligence of the plaintiff, the amount assessed falls far below the District Court jurisdiction of $1 million after that jurisdiction was increased on 1 December 2003.  Before the increase, the District Court jurisdiction was only $600,000.

88.There will therefore be a costs order nisi that the plaintiff will have the costs of this action.  Such costs incurred before the 1 December 2003 to be taxed on the High Court scale if not agreed, but that the costs incurred after the 1 December 2003 is to be taxed on the District Court scale if not agreed.

Mr Neal Clough, instructed by Messrs Henry H.C. Wong & Co., for the Plaintiff

Mr Allen Lam, instructed by Messrs Ford, Kwan & Co., for the Defendant