Tong Chun Chung v. Pud Chi Keung

HCPI 183/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.183 OF 2003

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

BETWEEN

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

Before : Hon Suffiad J in Court

Dates of Hearing : 17 - 20 January 2005

Date of Judgment : 6 May 2005

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

ASSESSMENT OF DAMAGES

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

1.The plaintiff brings this claim for damages for personal injuries against the defendant as a result of a traffic accident.

2.On 19 July 2000, at about 10.27 p.m. the plaintiff was pushing a wooden handcart along the nearside lane on Kwun Tong Road, close to the kerb of the pedestrian pavement.  When he came to the junction of Kwun Tong Road and Hip Wo Street, a private car driven and owned by the defendant and bearing registration number ER 9234 coming along Hip Wo Street knocked against his wooden handcart, which in turn hit the plaintiff, causing the plaintiff to fall to the ground.

3.At the start of the trial, the issue of liability was agreed between the parties that the defendant was 75% to blame for the accident and that the plaintiff was himself 25% contributory negligent.

4.What remains to be determined is the quantum of damages.

Injuries and treatment

5.After he was knocked to the ground from the impact, it was possible that the plaintiff lost consciousness but only for several minutes.

6.An ambulance was summoned and the plaintiff was taken to the Accident and Emergency Department (“A&E Dept”) of the United Christian Hospital (“UCH”).  When the plaintiff was examined at the A&E Dept of UCH the plaintiff was fully conscious and was diagnosed to have suffered a 4 cm laceration to the left side of his head as well as tenderness and bruising over the right shoulder.  X-ray examination of the skull, chest and pelvis showed no fracture.  The medical diagnosis was head contusion with scalp laceration and right shoulder contusion.

7.The plaintiff was admitted to the Department of Surgery for further management.  Suture of the left scalp was done.  X-ray and CT brain scan showed no fracture or neurological damage.

8.The plaintiff, however, continued to complain of headache and dizziness.  He was diagnosed to have post-concussional syndrome (“PCS”).  The plaintiff was discharged home from hospital on 26 July 2000.

9.On 13 November 2000, the plaintiff attended specialist out-patient treatment at the Department of Orthopaedics and Traumatology.  Physical examination showed that there was tenderness over right shoulder and right wrist, decreased sensation over the whole of right upper limb, and slight reduction of power (4/5) of the right upper limb.  There was no muscle wasting.  There was full range of movement in the right shoulder.  X-ray of the right shoulder, right upper limb and cervical spine were unremarkable.  He was treated with analgesics and referred to physiotherapy and occupational therapy.  After about a year of treatment his condition was static.  He still complained of being generally unwell, weakness and numbness over all four limbs.  The doctors commented that his symptoms were non-specific from the orthopaedics point of view and was more likely to be psychosomatic presentation.

10.The plaintiff also complained of persistent headache, vertigo, dizziness and tinnitus.  He continued to attend out-patient follow up at the Department of Neurosurgery.  Repeated CT scan of the brain on 3 March 2001 was normal.  The diagnosis was still PCS.

11.For his complaint of vertigo and hearing impairment, the plaintiff was referred to receive specialist treatment at the Ear Nose and Throat Clinic.  The impression was suspected pre-existing benign postural vertigo.  Epley’s Manoeuvre was performed and vertigo resolved.  Hearing tests showed that he suffered from bilateral sensorineural hearing loss at 4 KHz to 60 dB.  The hearing threshold at other range was around 30 dB.  He was prescribed with hearing aid in the left ear.

12.As the plaintiff made little progress, he was referred to receive specialist treatment at the Pain Clinic.

13.In June 2001, he was referred to receive specialist treatment at the Department of Psychiatry because of his chronic upper limb pain and suicidal thought.  During the first consultation, he complained of pain over his head and heard noise inside it.  He saw non-existing image which asked him to die.  He had decreased appetite and weight loss.  His mood was low.  Provisional diagnosis of organic hallucination was made.  He was prescribed with medication and arranged to attend further out-patient follow ups.

14.Subsequently, his psychotic symptoms subsided.  However his mood was low because of frequent tinnitus, dizziness and headache.  His daily activity was partially dependant on his wife.  He had poor appetite and sleep.  Fleeting suicidal idea came to his mind intermittently.  He also lost his sexual desire.

15.After about two years of psychiatric treatment, his mood was still low, associated with sense of uselessness, poor appetite and sleep, and severe tinnitus.  He denied psychotic symptoms or active suicidal idea.  Mental state examination carried out in May 2003 revealed that the plaintiff could only respond with simple and superficial answers without elaboration in detail.  Clinical cognitive tests revealed that he did poorly in concentration, registering and memorising information and executive function.  Government doctors opined that he showed significant impairment in cognitive function, which could be contributed by the direct trauma caused by the head injury, the depressive mood and the stress of the court proceedings.

16.Doctors at UCH certified that he was mentally unfit to give instructions for the purpose of court proceedings.  This led to a next friend being appointed in these proceedings.

Neurological condition

17.Dr Yu Yuk Ling, a neurologist instructed by the plaintiff as an expert in that field, examined the plaintiff on 20 March 2003.  His report dated 26 March 2003 stated the following findings and opinion :

Two years and eight months after the accident, the plaintiff still had the following neurological complaints :
(i)	Constant left sided headaches.  When severe, may be associated with dizziness but not with nausea, vomiting or visual disturbance.
(ii)	Constant dizziness, may be associated with disequilibrium, but not with vertigo, nausea or vomiting.
(iii)	Difficult to concentrate and his performance in mental tasks has deteriorated.  Impaired memory.
(iv)	Personality has changed; has become easily irritable and temper control has become poor.
(v)	Felt depressed, in particular with his job and livelihood; has expressed suicidal ideas; has insomnia and decreased appetite.
(vi)	Paraesthesiae and dull aches in his limbs.
(vii)	Independent in all activities of daily living but needs to be accompanied by his wife when he ventures out of the home.

Examination by Dr Yu showed that :

(i)	Response was variable, ranging from normal to excessively slow.
(ii)	Avoid eye contact with the doctor.
(iii)	When asked how many legs a cat has, he replied four to one cat.  Declined to tell the number of legs in three cats and five cats, claiming that answering such questions would bring about dizziness.  Therefore not possible to administer formal tests for his higher mental functions.
(iv)	There was mild bilateral sensorineural deafness, worse in the left ear.  The rest of the cranial nerve functions were normal.  There was no nystagmus or abnormality on position test.
(v)	There was non-neurological weakness in the upper and lower limbs, with simultaneous contractions of both agonist and antagonist muscle when he executed a certain movement.  The tendon reflexes were normal.
(vi)	He walked with a stick and required the assistance of his wife.

Dr Yu expressed the following opinion :

(i)	The plaintiff sustained a minor head injury in the traffic accident on 19 July 2000 resulting in PCS as evidenced by the symptoms of headache, dizziness, impaired concentration, subjective impairment of cognition and memory, irritability and insomnia.
(ii)	Dr Yu noted that there were discrepancy between the plaintiff’s complaints and objective findings during examination.  The plaintiff had only a minor head injury with normal CT scan of the brain taken on two occasions (immediately after and within eight months of the accident).  Minor head injury begets mild neurological deficits.  Such discrepancies may be accounted for by (a) emotional  and behavioural disturbances brought about by the accident, (b) exaggeration of symptoms, or (c) a combination of (a) and (b).  A psychiatric assessment is necessary to elucidate the nature and degree of concomitant psychiatric disturbance.
(iii)	Dr Yu also noted that the plaintiff has features of psychiatric disturbance and that many of the PCS overlap with that of psychiatric disturbance.
(iv)	Most patients with PCS achieves maximum recovery within 12 months of the head injury.  As the examination was done 32 months after the accident, the plaintiff’s condition is probably permanent.  He may need symptomatic treatment of headache and dizziness on a need basis.  Permanent impairment of the whole person was assessed at about 2% and the appropriate period of sick leave in this case is about nine months.
(v)	As far as PCS is concerned, the plaintiff should be able to resume his pre-accident work as a cooked food hawker, with a slightly compromised work capacity.

18.The plaintiff was also examined by Dr Edmund K.W. Woo, a neurologist instructed by the defendant as their expert, on 10 July 2003.  Dr Woo’s report dated 14 July 2003, states his findings, comments and opinion as follows :

Three years after the accident, the plaintiff still has the following complaints :
(i)	Constant left-sided headache which may extend to the left side of his neck and to the left shoulder, accompanied by a constant sense of dizziness and vertigo.  He has vomiting several times a day.
(ii)	Constant tinnitus in his ears, left worse than right.  Impaired hearing and wearing a hearing aid in his left ear for two years.
(iii)	Impaired memory.
(iv)	Becomes irritable and short-tempered; may slap his wife at times.  Has frequent dreams of being dragged around by people dressed in white.
(v)	Weakness in all four limbs.  Cannot hold a bowl with his left hand.  Cannot hold chopsticks in his right hand, relying on a spoon to feed himself.  Cannot write.  Needs to use a cane in addition to his wife’s support in walking.  A constant sense of numbness and paraesthesiae below the shoulders in the upper extremities and below the knees in the lower extremities.
(v)	Loss of sexual desire.  Sphincter control is otherwise normal.
(vi)	Cannot return to gainful employment.  Cannot manage public transport by himself.  Needs the assistance of his wife in many of his activities of daily living such as dressing, grooming, bathing and ambulation.

Neurological examination carried out by Dr Woo showed that :

(i)	Plaintiff demonstrated a profound degree of global cognitive dysfunction with severe impairment in tests of orientation, calculation, concentration, registration, memory (both recall and long term), general knowledge and abstract thinking.  He could not remember his age, his level of education, when he came to Hong Kong or what he did for a living.
(ii)	Segmental examination showed normal fundoscopy, visual fields and extraocular eye movements.  There was no nystagmus, not even on changes in bodily position.  In the neck, there was no paravertebral muscle spasm although active movements were limited in all directions.
(iii)	In the extremities, muscle tone was normal and there was no muscle wasting.  On testing volitional power, he demonstrated a moderate to severe degree of weakness in all four extremities, with an equal involvement of the agonist and antagonist muscle at each joint.  He demonstrated a marked limited range of movements in his left shoulder.  Hoover’s sign was positive on hip flexion bilaterally (indicating under-performance).  All deep tendon reflexes were normally present and symmetrical. There were no primitive reflexes or paratonia to indicate frontal lobe dysfunction.

From such examination, Dr Woo gave the following opinion :

(i)	The plaintiff had at most a mild head injury during the accident.  He had a normal Glasgow coma scale when first seen at the hospital.  There was no radiological evidence of any parenchymal brain damage.
(ii)	Plaintiff complained of residual headache, dizziness, impaired memory and weakness in all four limbs.  His neurological examination, however, demonstrated unusual features.
(iii)	He demonstrated profound degrees of global cognitive dysfunction on mental state examination.  Such a magnitude of cognitive impairment is observed only after a severe head injury in which there is significant parenchymal brain damage and in whom primitive reflexes and/or paratonia are evident on examination to corroborate frontal lobe dysfunction.  In this case, there was no objective sign of frontal lobe dysfunction on examination and there was no radiological evidence of any parenchymal brain damage.
(iv)	The plaintiff demonstrated moderate to severe weakness in all four limbs but such weakness was characterised by an equal involvement of the agonist and antagonist muscle at each joint, which was unusual.
(v)	All the above discrepancies and inconsistencies raised the strong suspicion that his deficits were either feigned or grossly exaggerated for the purpose of the examination.  They cast serious doubt on the genuineness and integrity of his complaints.
(vi)	In the face of the inconsistencies, it is difficult to gauge the true extent of his residual neurological handicap.  With the mild head injury, he ought to have a gradual recovery over a period of 12 to 24 months, although a mild degree of residual headache, non-specific giddiness and subjectively impaired memory consistent with the diagnosis of a PCS may remain.  Permanent impairment of the whole person should not be more than 1%.  He should have recovered sufficiently one year after the accident to be able to resume gainful employment.

19.From the above, it can be seen at once that there are little, if any, differences between the two neurologists for the respective parties in their opinion and comments on the plaintiff’s neurological condition.  Because of that, both neurologists were not called to give oral evidence at the trial but that their reports were simply adduced into evidence.

Psychiatric condition

20.It is the psychiatric condition of the plaintiff which gives rise to the main dispute between the parties.

21.Dr Peter Ho Pang Nin, the plaintiff’s expert witness in the field of psychiatry, examined the plaintiff on the 18 August and 24 October 2003 as well as interviewing his wife and his wife’s elder sister.  Dr Ho’s medical report was dated 24 October 2003.  The contents of that medical report can be summarised as follows :

(a)	The complaints made by the plaintiff to Dr Ho are very similar to those made by the plaintiff to the two neurologists, and do not bear repeating again.
(b)	Mental state examination performed by Dr Ho showed that :
	(i)	He had little spontaneous speech which was overall coherent and relevant.
	(ii)	His mood was depressed and he had low self-esteem.
	(iii)	On testing of his cognitive functions, his performance was overall poor.
	(iv)	He could not recall his date of birth; wrongly remembered that he had two children when he had only one daughter and forgot his previous jobs.
	(v)	He could tell, one plus one was two, but said two plus two was three; he could tell a men had two legs but said a dog also had two legs.
	(vi)	When given a name and address, he could not register the information; had difficulty reversing three digits backward; did not know the day of the week, the month of the year.
	(vii)	He was given a mini-mental state examination, and the score was 13 out of 30, which indicated a poor cognitive functioning.
(c)	In his medical report Dr Ho commented that :
	(i)	The plaintiff had been suffering from PCS and also anxiety and depression in relation to the physical symptoms and social consequence.  The PCS was a result of the accident in question.  The depression was moderate to severe.  There was also a condition known as depressive pseudo-dementia.  He also had some hallucinations, that might be related to the head injury or the depression.
	(ii)	His overall account and performance was consistent during the two different interviews and also consistent with the description from his relatives and other doctors.
	(iii)	He had not feigned his symptoms.
	(iv)	The psychiatric disability has resulted in 25% permanent impairment of the whole person.  He might benefit from attending psychiatric treatment on a regular basis for at least three years.  The prognosis of the psychiatric condition is poor.

22.The plaintiff was also examined by Dr Wong Chung Kwong, the defendant’s expert witness in the field of psychiatry, on 16 April 2004.  Dr Wong prepared, an expert psychiatric report dated 5 May 2004, which stated the following :

(a)	Mental state examination of the plaintiff showed that :
	(i)	He was conscious, alert, and in contact.
	(ii)	He alleged that he could not hear at the beginning of the examination, but later on there was no evidence to suggest that he was unable to hear.
	(iii)	His hand showed coarse tremor at the beginning of the examination but later on, such tremor was fleeting.
	(iv)	His mood was not depressed or anxious; he showed no behaviour that suggested he was harbouring psychotic symptoms.
	(v)	He made no eye contact; he responded slowly, and in short sentences; he showed little facial expression or spontaneous conversation.
(b)	Examination of his memory functions show that :
	(i)	He could not tell his address and telephone number; he could not tell his daughter’s name; he needed to struggle to tell his wife’s name.  The findings, if they were true, suggested he had a serious impairment in long-term memory.  There was however evidence to suggest that he showed features of exaggeration.
	(ii)	He could not repeat three objects, that were told to him just a moment early.  The findings, if genuine, suggest that he had serious impairment in immediate memory function.  The evidence, however, suggested that his impairment was not genuine, because he could recall several earlier tasks that the doctor asked him to do.
(c)	When he was tested in respect of his orientation to time, place and person, his performance suggested the phenomenon of “approximate answer”.
(d)	When he was subjected to further tests on the number of legs corresponding to different number of dogs, the number of ears corresponding to different number of persons, and the number of mouths corresponding to different number of persons, he showed features of “approximate answer”.
(e)	The mental state examination findings show that specifically, the plaintiff presented with the clinical features of a person with severe or profound degree of cognitive impairment.  Underneath this superficial façade of cognitive impairment, however, he has numerous approximate answers.  The approximate answers were an important clinical sign of malingering.
(f)	Dr Wong disagreed with the diagnosis of PCS because (i) the severity and range of symptoms presented by him far exceeded the usual symptomatology of this condition, and (ii) his head injury was a mild one and should not have resulted in severe “cognitive deficits”.
(g)	The plaintiff’s symptoms, if genuine, would indicate that he suffered from very severe long-term memory deficits.  Long-term memory function was impaired in Dementias.  There were two main kinds of Dementias :
	(i)	Progressive Dementia is commonly referred to as Senile Dementia.  By the time these patients lose memory about their dates of birth and names, they are in a very advanced or even terminal stage of Dementias and are usually near the end of their lives.
	(ii)	The non-progressive Dementia, such as caused by brain trauma, could impair a person’s long-term memory if the head trauma was significant.
	For both kinds of severe dementia, there should be clear-cut collaborating positive physical examination and laboratory investigation findings.  In the case of dementia due to head trauma, the head trauma has to be very significant.  In the case of the plaintiff, there was absolutely no such collaborating history of findings.  He was not suffering from Dementia.
(g)	The findings of mental state examination showed that he was grossly exaggerating and feigning symptoms.  Dr Wong’s diagnosis was that the plaintiff had been malingering.

Pain suffering and loss of amenities (“PSLA”)

23.In assessing the damages under this head, I must first determine the extent and severity of the plaintiff’s injuries and disabilities suffered by him as a result of the accident.

24.As already indicated, the main dispute between the parties relate to the psychiatric condition of the plaintiff and the differences between the two psychiatric experts called by the parties, namely Dr Ho for the plaintiff and Dr Wong for the defendant.

25.Both of them gave oral evidence at the trial and were cross-examined.  Having heard their evidence and cross-examination of them, I have no hesitation in accepting the evidence given by Dr Wong as well as his opinion.

26.I am particularly impressed and have no reservation in accepting that part of Dr Wong’s evidence as well as his analysis relating to progressive dementia and dementia caused by head trauma.

27.Equally I accept his analysis of the plaintiff’s situation in relation to the “approximate answers” given by the plaintiff.  In this respect I note that the plaintiff’s neurological expert, Dr Yu, had also put emphasis on the “approximate answers” given by the plaintiff which is a clear indication that such analysis by Dr Wong based on the “approximate answers” is a correct analysis by him and in line with what was troubling Dr Yu in this case.

28.The evidence given by Dr Ho had its unsatisfactory aspects as follows :

(a)	It was apparent from his evidence that Dr Ho had simply accepted at face value the complaints told to him by the plaintiff and his wife and upon which his opinion was based.
(b)	Dr Ho had not even attempted to reconcile the inconsistencies between the objective tests performed on the plaintiff and the subjective complaints of the plaintiff when all the other experts focused on and highlighted such inconsistencies and discrepancies.
(c)	Of his own admission in cross examination, Dr Ho had not been provided with all the medical reports relevant to the plaintiff in this case such as the audiometry report as well as other reports.
(d)	Nor did Dr Ho realise that the plaintiff had no post-concussional amnesia immediately following the accident.

29.Apart from accepting the expert opinion as expressed by Dr Wong, I also accept the opinions of the two neurologists respectively instructed as experts for the parties.

30.The only part of Dr Wong’s opinion which I have some reservation is Dr Wong’s denial that the plaintiff suffers from PCS.  This differs from the opinion of both neurologists and also the government doctors.

31.I find that the plaintiff did suffer a mild head injury form the accident as well as some other mild orthopaedic injuries which are not in themselves of great significance.

32.It is likely that the plaintiff did suffer some PCS, but again only of a mild degree.  That PCS did manifest itself in headaches and dizziness and may well have caused some mild depression in mood to the plaintiff, but not in the exaggerated form complained of by the plaintiff.

33.I reject the plaintiff’s case that the injuries had impaired his higher cognitive functions or his long term memory.

34.There was certainly no question of any neurological impairment or deficits.

35.I also reject the plaintiff’s suggestion that the accident had resulted in his numbness and weakness in all four limbs as was amply demonstrated by the opinion of Dr Woo that he found an almost equal involvement of the agonist and antagonist muscles at each joint upon examination.  In this respect Dr Yu gives a similar opinion to that of Dr Woo.

36.More importantly there was no muscle wasting detected by any of the experts.

37.On these findings, I assess the damages under this head to be $200,000.

38.In coming to such an assessment, I have taken into account the fact that Dr Yu expressed the opinion that an appropriate period of sick leave would be nine months and that the plaintiff would be able to return to his pre-accident job as a cooked food hawker after that sick leave period.

Pre-trial loss of earnings

39.The difficulty I face in making an assessment under this head comes from the fact that there is a total lacking of reliable evidence as to the pre-accident earnings of the plaintiff.

40.Before the accident, he was a cooked food hawker working only during the nighttime.  As such there is no documentary evidence of his earnings before the court.

41.The only evidence of his pre-accident earnings come from his daughter, Tong Ka Hung.  Her evidence is that she had seen him take out form his pocket (after he had finished work for the night) money from his cooked food business and which he counted in front of her to be about $1,000 and that she was told by her parents that the cooked food business generates about $1,000 net profit each night.

42.From that evidence, Miss Tong comes to the conclusion that the plaintiff’s pre-accident earnings must be $30,000.  The plaintiff’s case is therefore put on the footing that the plaintiff’s pre-accident earnings was $30,000 per month.

43.However, I should say at once that there are several aspects of the evidence of Miss Tong which causes me considerable doubt as to the reliability of her evidence.

44.In so far as the pre-accident earnings of the plaintiff goes, it became clear in cross-examination that Miss Tong has no clear idea as to what expenses are incurred by her father, the plaintiff, in his business as a cooked food hawker.

45.Her evidence that her father earns $30,000 a month before his accident is also the basis upon which is predicated the family expenses.  That brings me to the other areas which has caused me to doubt her evidence.

46.In so far as expenses are concerned, it is Miss Tong’s evidence that she, as a Form 5 student before the plaintiff’s accident, was given $7,500 by her father to cover her school fees ($900), her travelling ($150), her lunches ($750), with the remaining $5,500 or thereabouts being her spending money each month.

47.It is also her evidence that her father would give about $10,000 to support mainly the plaintiff’s own mother in mainland China, and also some of the aunts and uncles (of Miss Tong) in China.

48.Under cross-examination, she said that her father did not go up to China to pay this money to his mother since he was busy with his cooked food business, but entrusted the money to some relatives in Hong Kong to bring up to China.  Yet she was not even able to give the name of those relatives to whom her father entrusted such a large sum of cash each month.

49.When viewed against the entire family income (the plaintiff being the only bread winner of the family), assuming Miss Tong’s evidence to be true, what it means is that over half of the plaintiff’s earnings is spent on the plaintiff’s mother (and other relative in China) and also on the plaintiff’s daughter.

50.In all the circumstances, I have come to the conclusion that there is a great deal of exaggeration by Miss Tong in her evidence, no doubt with the intent to exaggerate the monthly earnings of the plaintiff so as to prop up the claim for loss of earnings.

51.I reject her evidence as to the plaintiff’s pre-accident earnings being $30,000 per month.

52.All I am left with by way of evidence as to the plaintiff’s pre-accident earnings is the following evidence.

53.The plaintiff worked as a cooked food hawker selling cooked internal organs of ox and pigs.  He rented a premises in Kwun Tong where he cooked and prepared the food and would no doubt have to pay rent.  After cooking the food each night, he would cart the cooked food in a wooden cart out to the busier places of Kwun Tong and sell the food from his wooden cart.  He would sell the internal organs skewered on a bamboo stick for $5 per stick or in a foam box filled with such internal organs at $30 per box.  He worked each night from 10.30 p.m. until about 6.00 or 7.00 a.m. the following morning, helped by his wife.

54.By way of expenses, he would need to pay for the stock of the food which he sells, pay rent for the premises from which he cooks and prepares the food, pay for the fuel and utensils, as well as plastic bags, foam boxes and bamboo skewers used by him in his trade.

55.From all this evidence, skimpy as it is, I draw the inference that the plaintiff likely earns no more than $15,000 per month as profit in his business.  This translates to about $500 profit per night if he works every night each month.

56.For the pre-trial loss of earnings, having found that there was a large degree of exaggeration by the plaintiff as to his medical condition, I am not prepared to give effect to the sick leave period which he was actually granted by government doctors, but prefer to make the finding from the combined opinions given by Dr Yu, Dr Woo and Dr Wong that a reasonable period of sick leave for this plaintiff would be no more than one year taking into account his headache and dizziness and mild PCS.

57.Accordingly, for that one year of sick leave, there should be assessed full loss of earnings at $15,000 x 12 giving $180,000.

58.From July 2001 onwards, I find, again from the medical opinions expressed by those experts which I have accepted, that the plaintiff was able to resume his pre-accident work as a cooked food hawker.

59.However, the fact that he could return to work does not necessarily mean that there is no more loss of earnings.

60.When examined by Dr Yu and Dr Woo in 2003 and by Dr Wong in 2004, these experts found that the plaintiff still had some headaches and dizziness.  It is only the severity of the condition as complained by the plaintiff which they question.

61.Giving effect to the fact that the plaintiff still had some residual headache and dizziness and the fact that Dr Yu expressed the opinion that the plaintiff’s PCS is likely to be permanent (since it was some 32 months after the accident when Dr Yu saw him), it must follow that there would be some partial loss of earnings in so far as this plaintiff is concerned since there will be the odd day or two in a month when the plaintiff will be prevented from working due to such residual symptoms.

62.I shall therefore assess $1,000 as being his partial loss of earnings for the period from July 2001.  This works out to be $1,000 x 46 months giving $46,000.

63.The total pre-trial loss of earnings therefore comes to $226,000.

Future loss of earnings

64.For future loss of earnings, I will adopt as the multiplicand the same amount of $1,000.

65.The multiplier is agreed between the parties at 9.

66.Future loss of earnings is therefore worked out at $1,000 x 9 x 12 giving $108,000.

Loss of earnings capacity

67.Although there is a claim for loss of earnings capacity, I am not prepared to make any assessment of such since the loss of future earnings has effectively taken that into consideration in that the award for loss of future earnings is made on the basis that although he could return to his pre-accident work as a cooked food hawker, his residual headache dizziness and PCS may occasionally prevent him from working on the odd day or two in a month.  To that extent, loss of earnings capacity is already covered.

Value of voluntary care and service provided

68.I am also not prepared to make any award under this head of damage in view of my finding that the plaintiff’s medical condition, in particular his claimed psychiatric condition, has been greatly exaggerated by him.

69.Such a claim for damages for care and service is only made when the injured person is incapable of looking after himself or take care of his own daily living activities and relies on others to look after him.

70.In this case the condition of the plaintiff as found by me is not such a condition as would require other of his family members to look after and take care of him or his daily living activities.

71.Accordingly there will be no award under this head of damage claimed.

Special damages

(A)  Medical expenses

72.An amount of $8,000 has been claimed in the Statement of Damages (no Revised Statement of Damages having been filed by the plaintiff).

73.Although the defendant does not accept that the medical expenses are really necessary in this case because of the plaintiff’s exaggeration as to his medical condition, nevertheless, the defendant agrees to this amount of $8,000 claimed and will not dispute it.

74.Accordingly $8,000 will be assessed under this head of claim.

(B)  Travelling expenses

75.The plaintiff initially claimed $15,000 for travelling on the basis that his generalised weakness in all four limbs necessitated his taking taxi to the hospital to receive follow up treatment.

76.However, after the trial, by letter dated 24 January 2005, the parties have now confirmed that the claim for travelling expenses only comes to $5,445.50.

77.That amount appears reasonable and will be allowed.

(C)  Tonic food

78.The plaintiff claims $100,000 under this head.  This is yet another instance of the kind of exaggeration made by the plaintiff in this case.

79.The courts have consistently said that for claim for tonic food, even when supported by receipts, has to be shown to be reasonable.

80.Not only is there no receipts to support the $100,000 claimed, such an amount cannot by any standard be reasonable given the kind of injury suffered by the plaintiff in this case.

81.Evidence was given by Miss Tong that some $28,000 had actually been spent by the plaintiff for Chinese herbs and other nutritious food for the plaintiff.  However, only a table prepared in an attempt to show the breakdown of the item was put into evidence.  That table totalled some $45,250 and is yet a further discrepancy from Miss Tong’s evidence.

82.In the absence of receipts, I am only prepared to allow $5,000 for tonic food.

Future medical expenses

83.There is a claim for future medical expenses based on the opinion of Dr Ho that future psychiatric treatment is needed for the plaintiff for at least the next three years.

84.Having declined to accept the opinion of Dr Ho and in view of my acceptance of the opinions expressed by the other experts in this case, none of whom had suggested future treatment for this plaintiff, there will not be any awards for future medical treatment.

Interests

85.Interests for general damages for pain suffering and loss of amenities will be awarded at 2% p.a. from the date of Writ.

86.Interests on pre-trial loss of earnings and all special damages will be awarded at 4% p.a. (half judgment rate) from the date of the accident.

Summary of Awards

Conclusion

88.From the above total sum of $608,623.50 will need to be deducted the 25% to take account of the contributory negligence of the plaintiff.

89.This will give $456,468.

90.Accordingly, there will be judgment for the plaintiff for $456,468.

Costs

91.In view of the fact that the total quantum in this case (i.e. on full liability without taking into account deduction for contributory negligence) just exceeded the District Court jurisdiction of $600,000 before that jurisdiction was increased to $1 million on 1 December 2003, there will be a cost order nisi that the costs of this action be to the plaintiff to be taxed on the High Court scale for all costs incurred before 1 December 2003 but that all costs incurred after that date be taxed on District Court scale, if not agreed.

92.The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.

Mr Charles T.C. Wong, instructed by Director of Legal Aid, for the Plaintiff

Mr Wong Chi Kwong, instructed by Messrs Johnson, Stokes & Master, for the Defendant