Phoon Ka Wai v. Wong Ka Chung and Another
Read the full judgment text of HCPI 768/2003 on BabelCite. This High Court CFI judgment was delivered on 15 September 2005.
1. This is an action for personal injuries arising out of a traffic accident on 9 June 2001. Judgment on liability was entered against the 1st and 2nd Defendants for damages to be assessed on 16 December 2003.
Cited by 8 cases · Cites 1 case
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HCPI768/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 768 OF 2003 _________________ BETWEEN
_________________ Coram: Master de Souza of High Court in Court Dates of Hearing: 17-18 March 2005, 30 June 2005 and 20 July 2005 Date of Judgment: 15 September 2005 ________________ J U D G M E N T ________________ Introduction 1.This is an action for personal injuries arising out of a traffic accident on 9 June 2001. Judgment on liability was entered against the 1st and 2nd Defendants for damages to be assessed on 16 December 2003. 2.The Plaintiff, a chief cook in a Chinese restaurant, and aged 35 at the date of the accident, having been born on 20 February 1966, has attained the age of 38 when damages came up for assessment on 17 March 2005. The Plaintiff’s Injuries, Treatment and Prognosis 3.The comprehensive medical evidence was non-contentious. What remains especially controversial was the residual effect, if any, of the Plaintiff’s physical injuries on his daily life and working ability. 4.It is the defence contention that the Plaintiff was either deliberately fabricating or, at the very minimum, substantially exaggerated his residual pain and suffering and the impact of the accident on his daily activities, quality of life and ability to resume work as a chief cook. 5.The medical evidence may be summarised thus. Following a collision between the Plaintiff’s motorcycle and a public light bus driven and owned by the 1st and 2nd Defendants respectively, the Plaintiff was admitted to the Department of Orthopaedics and Traumatology of the United Christian Hospital where multiple injuries, including minor traumatic head injury, fracture of the right first rib, right clavicle, right distal radius and patella, right thigh deep laceration and lip laceration were diagnosed. 6.The Plaintiff said he fainted after the impact, but regained consciousness upon admission to the hospital. He underwent a series of operations. On 9 June 2001, surgical toilet and suturing were performed. Open reduction and internal fixation of the patella and excisional debridement of wound, infection and burn occurred on the following day, 10 June 2001. 7.On 12 June 2001, he was again operated on for open reduction of wound and open reduction of fracture of radius and ulna with internal fixation. He was transferred to Kowloon Hospital for convalescence on 26 June 2001 and discharged home on 11 August 2001. 8.Regular follow-up visits at the Orthopaedic Clinic of United Christian Hospital ensued. On 9 November 2001 and 15 September 2003, arthroscopy was carried out on his right knee. Additionally, he received intermittent physiotherapy and occupational therapy at Kowloon Hospital until 2003, as evidenced by documentation in sections D and G of bundle E. 9.His out-patient treatment at the Orthopaedic Clinic of United Christian Hospital is supported by appointment slips in section J of bundle E. He was also treated at the Psychology Clinic at Kowloon Hospital since 26 June 2001. Out-patient visits to the Neurosurgical Department of the Queen Elizabeth Hospital ended around August 2002. 10.The Plaintiff was granted sick leave from 9 June 2001 to 10 June 2002 inclusive, a reasonable duration given his injuries. On 10 September 2003, the United Christian Hospital reported on the progress of the Plaintiff. It was said, “All wounds healed and fractures united. He could walk with a stick but could not squat with residual knee pain.” 11.The Plaintiff was referred for cognitive assessments in June 2001 and April and June 2002. He was observed to have been dull and depressed but co-operative. The resulting psychological report dated 16 November 2002 revealed deficits in several cognitive domains consistent with a mild decline in the Plaintiff’s overall cognitive functioning from presumed pre-morbid levels. It went on to conclude:
12.On 8 October 2002, the Plaintiff was examined by a psychiatrist, Dr Chung See-yuen. The Plaintiff’s then complaints were poor memory, difficulty in organising his thoughts and expressing them, impaired concentration, sleep problem, lack of motivation and interest in sex and feelings of sadness. He informed Dr Chung that there had been mild improvements and his memory had become better. 13.The psychiatrist diagnosed the following:
It is to be noted that the Plaintiff has not taken up the suggestion in paragraph 33 to consult a neurosurgeon. 14.On 23 September 2002, some 15 months after the accident, Dr Lam Kwong-chin, a specialist in Orthopaedics and Traumatology conducted an examination of the Plaintiff. In his opinion, the Plaintiff had suffered a 17 per cent impairment to his lower extremity (ILE) and 7 per cent impairment of the whole person (IWP) based on his knee condition. A figure of 20 per cent for combined impairment of the whole person was indicated to reflect the Plaintiff’s remaining complaints. 15.A joint medical report dated 27 March 2004 was commissioned from Dr Lam Kwong-ching and Dr Danny Tsoi, an orthopaedic specialist. Their examination of the Plaintiff disclosed the following significant abnormal findings:-
16.After combining the orthopaedic disabilities excluding those due to head injury or psychiatric condition, Dr Lam and Dr Tsoi considered that the Plaintiff has sustained an 18 per cent and 11 per cent impairment of the Whole Person respectively. 17.There is consensus between the orthopaedic surgeons that further deterioration of the injured knee over time can be expected. Dr Lam and Dr Tsoi differed only on whether total patelloctomy or total knee replacement was indicated. They, however, accepted that the Plaintiff would have difficulty working as a cook. 18.Prior to the accident, the Plaintiff enjoyed bicycle riding several times a month as well as playing sports and pursuing outdoor activities with his young son. He was also a keen motorcyclist. These are now denied him on account of his restricted mobility. The accident has left him depressed and irritable, and affected his relationship with his wife. Family life has become less harmonious. He finds himself less motivated and suffers from insomnia for which he takes sleeping pills daily. His concentration has been adversely affected. 19.On account of his lower limb injuries, the Plaintiff has had to resort to a walking stick. He testified that he would not have to use it all the time, a fact that is apparent in the video (Exhibits D1(a) and (b)) surreptitiously taken by the defence. When venturing off to unfamiliar terrain with the possibility of encountering slopes or stairs, he would have his walking-stick with him. At Sunrise Kitchen where he has been in continuous employment before and after the accident, the walking aid can be dispensed with because of his familiarity with the environment. He maintains he still has a limping gait. 20.The Plaintiff also testified that he was able to walk without the stick for 15 to 20 minutes and stand for about the same duration. He experiences pain in his right knee when standing for extended periods. He said he is no longer able to stand for more than two hours at a time, a prerequisite for a chef in any Chinese kitchen. He also has difficulty using public transport, particularly getting on and off omnibuses. He needs to rest every 15 to 20 minutes. 21.Although the Plaintiff’s fractures of the right first rib and right clavicle have healed well, he still complains of persistent right shoulder pain and stiffness with clicking sensation on movement. He said he could not carry weight such as moving kitchen supplies to and within the kitchen of Sunrise Kitchen. 22.The right wrist continues to be problematic. Based on the effect of the fracture and the residual pain, the authors of the joint orthopaedic report assessed the disability as amounting to 2 per cent IWP, a figure that has been taken into account in their determination of his combined disability rating previously mentioned. In evidence, the Plaintiff stated his wrist still hurts, but not as much as before, and he would avoid raising that arm unless necessary. 23.In the videos, he was observed to swat flies and fetch cigarettes and a water bottle from a shelf or refrigerator top with his right hand with no apparent difficulty. 24.The agreed video evidence was recorded on diverse dates from 17 March 2004 to 18 June 2004. The Plaintiff was variously seen performing relatively light duties in the kitchen of Sunrise Kitchen, walking seemingly normally about the restaurant premises, negotiating a gentle slope, and visiting a bank. In one sequence, he walked in the street before getting into a blue car and driving away. In none of the recorded footages did he appear to limp or wear a pained expression when moving about. 25.The Sunrise Restaurant segments of the videos showed him sitting around chatting or strolling within the restaurant area, including the service portion behind the counter. At one point, the Plaintiff was shown attempting to swat flies with an electric racquet. 26.This was in stark contrast to his court appearances. Whenever he took the witness stand, he would walk haltingly and with apparent difficulty, aided by a walking stick. There was a slight but noticeable limp and his facial expression suggested either pain or discomfort. 27.The videos offered a glimpse of a relaxed and unguarded Plaintiff going about his daily life. They were the more telling for it. The impression that the Plaintiff has consciously exaggerated his physical condition to gain the court’s sympathy is irresistible. In coming to this conclusion, I have placed no weight on the observation of the psychiatrist, Dr Wun Tong-law, who had opined that some of the complaints were inconsistent with the Plaintiff’s activities under surveillance, this being a matter solely within my province. 28.That said, it does not follow that the Plaintiff’s claim is without foundation in light of the medical evidence. There can be no real issue that the Plaintiff has suffered injuries and residual disability of a nature and extent that has significantly impacted on his enjoyment of life and daily activities on the uncontroverted medical evidence which I wholly accept. His capacity to function as a fulltime Chinese cook has been seriously compromised. He underwent a series of surgical procedures and sessions of follow-up treatment and therapy with further treatment on his knee being indicated. 29.Problems with concentration, sleep, and residual pain in his right knee, chest and shoulder persist though perhaps not as frequently and severely as he would have liked one to believe. 30.In October 2002, Dr Lam Kwong-chin advised the Plaintiff that he would benefit from having all the loose bone fragments in his knee removed at a likely cost of $30,000. This opinion was repeated two years on in March 2004 in the joint orthopaedic report previously referred to. The cost of the procedure in a private hospital remained unchanged. 31.He chose not to follow the recommendation, a matter on which he was vigorously cross-examined. When initially queried, the Plaintiff asserted he lacked funds for the operation. As the case progressed, it was disclosed that after repaying various loans from family members and repaying the Government $100,000 for the TAVAS payment and the loan of $350,000 to PW2, Madam Cheung Mei-ling with the interim payment of $1 million received, he was left with about $200,000 to $300,000. That amount, he explained, had to be kept for defraying regular family and mortgage expenses as his income, the sole source of income for the family, was meagre. 32.Having said all that, he finally admitted, “I am not eager to have this operation as soon as possible.” The procedure should offer some improvement and reduce the pain in his knee to some degree. Had cost been truly problematic, which I do not accept, he could have resorted to treatment in the public sector. For reasons best known to himself, he decided to delay the operation. 33.However, on the whole of the evidence, I have no reservation in holding that the Plaintiff’s predicament brings him within the serious injury category in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. A plethora of cases were cited by counsel, all of which I have considered. These were Lee Chun Fat v Chan Kin Wo & Another, HCPI No. 1306 of 2000; Ku Chiu Chung v Tang Tin Sung, HCPI No. 288 of 2001; Kwong Yu Hung v Wong Fat Kan, HCPI No. 336 of 2001; Liu Hung Fai v Sandvik (Hong Kong) Limited & Another, PI No. 934 of 1995; The Kang Oh & Wong Yik Fai & Another, PI No. 791 of 1995; Cheng Kwok Sang v Maxim’s Caterers Limited, HCPI No. 237 of 2001; Luk Chi Yin v Wong Fung Shing, PI No. 496 of 1997; Kwok Wing Ming v Wong Lin Lung, HCPI No. 1341 of 1996;and Leung Bon Kau v Lau Kong, HCPI No. 1455 of 2000. None of them falls squarely with the instant case but they are useful guides in this exercise. 34.The injuries have long-term ramifications for the Plaintiff and they are well documented. He underwent a long period of convalescence. In my considered judgment, an award of $500,000 under this head is wholly justified. I so order. Pre-trial Loss of Earnings and MPF 35.The Plaintiff was on sick leave for a full year from 9 June 2001 to 10 June 2002. His pre-trial loss of earnings and MPF benefits for the period respectively, $180,000 and $9,000 are agreed. 36.At the time of the accident, the Plaintiff was employed as a chief chef by PW2 at her Sunrise Kitchen. From the video, the establishment seems to be a “dai pai dong” specialising in Chinese food and dim sum. The Plaintiff was then earning $15,000 a month. When sick leave ended, the Plaintiff returned to Sunrise Kitchen as a casual worker on 1 July 2002. His duties of an undemanding nature only required his attendance for about two hours a day. In the kitchen, he would assemble ingredients for orders to be cooked by other kitchen staff and pass out completed dishes to waiting staff. He did not have to attend upon customers or man the till. During lulls in trading, he would rest, sit and smoke. I accept his evidence that he is no longer able to stand for long periods or work the heavy woks (frying pans) and ladles used in Chinese food preparation, a prerequisite for a chef in a Chinese establishment. 37.The Plaintiff remained so employed to the date of the trial. The much-reduced salary was plainly inadequate for all his monthly outgoings. The Plaintiff testified that attempts to secure employment elsewhere within the catering industry had met with no success. This I accept. 38.With his restricted mobility and limited education, jobs such as car-park attendant, security guard or shop trainee, all requiring a fair degree of walking and standing, were considered and rejected as beyond his physical capability or experience. Having worked for over 20 years as a professional cook, the Plaintiff can be forgiven for feeling inadequate in another occupation. 39.On the evidence, I fail to see any basis for the contention that the Plaintiff has failed to mitigate his loss. In January 2005, he registered with the Labour Department for the first time for job referrals. 40.The Plaintiff was indeed fortunate to have an understanding employer and friend in Madam Cheung who was prepared to continue his employment, albeit on a casual basis with reduced pay. Where once there had been some suggestion of the Plaintiff having a proprietary interest in Sunrise Kitchen, the evidence of the Plaintiff and Madam Cheung, corroborated by the Declaration of Trust dated 14 December 2001, firmly established the contrary to be true. 41.Between 1 July 2002 and 30 June 2005 (the third day of trial, when all the evidence was concluded, a date taken for ease of calculation) the Plaintiff was in continuous employment except for the month of September 2003 which saw him undergo an arthroscopy and was paid a total of $105,000 (35 months X $3,000 per month) in wages. 42.Counsel for the Plaintiff, Mr Hui, submitted in reference to the Quarterly Report of Wage and Payroll Statistics that a chief cook’s remuneration in a Chinese restaurant was $18,424 in December 2004. Accordingly, it was contended that a slightly enhanced salary should be adopted for calculating the Plaintiff’s pre-trial loss of remuneration. Adopting the same reasoning, this datum was advanced for assessing future loss of income. The Quarterly Report furnishing statistical figures and salary information for the listed occupations must necessarily have been the mean averaged over the period dealt with. 43.There was no evidence of whether there had been any salary increments for the Plaintiff’s fellow workers at Sunrise Kitchen since the date of the accident. One rather suspects not, as the Plaintiff’s salary had not been adjusted at all in the 36 months to trial except in May 2003 when, on account of the SARS epidemic, all staff saw their salaries reduced by 10 per cent, with some workers being asked to take unpaid leave. But for the accident, it seems most probable that the Plaintiff would have remained at the same pay level throughout. I therefore assess his pre-trial loss of income as follows:
44.There shall be an award of $615,300 for past loss of wages. The ensuing loss of MPF on this sum comes to $615,300 times 5 per cent, or $30,765. Future loss of Income and MPF 45.The joint orthopaedic report of 27 March 2004 stated the Plaintiff’s suitability for employment having “lighter works which would be done in sitting posture, or with limited indoor walking requirement, such as driver, machinery operator, storekeeper, car-park attendant, or jobs of similar nature”. With the knee condition expected to deteriorate gradually in the future necessitating further surgical intervention, possibly up to three times during his lifetime, the Plaintiff’s employment prospects are far from bright or secure. This factor will also have a bearing on his claim for loss of earning capacity. As Madam Cheung considered that the Plaintiff’s days as a chef were over, she found a fulltime replacement for him at Sunrise Kitchen. Although alternative employment was said to be open to the Plaintiff, realistically, it does seem to me, given his continuing disability and limited education and skill, that the Plaintiff will have difficulty securing and holding down any of the jobs suggested. He will continue to require rest periods every now and then. The Plaintiff, now 39 years old, faces continuing prospective loss of income. 46.As for the appropriate multiplier, reference was made to the following decisions. Cheung Chun Wing v Szeto Sau Ha & Another, HCPI No. 231 of 1999; Chan Ng Ming v Wayfine Investment Limited, HCPI NO. 148 of 1997; Ku Chiu Chung v Tang Tin Sung, HCPI No. 288 of 2001; Lam Kwai Yip v Yuen Yun Kui, HCA No. A12617 of 1994; Cheung Sze Kuen v Wong Chi Cheung, unreported, HCA No. 2486 of 1984; Chan Yiu Ping v Mok Yuk Kwong & Others, HCPI No. 92 of 1998; Wong Yin Wa v Chan Shing, HCPI No. 1125 of 2000;and Wong Lai Kai v Wu Chan Choi & Others, PI No. 962 of 1996. 47.Twelve years’ purchase seems about right. I shall adopt the same multiplicand of $12,000 ($15,000 minus $3,000). Future income loss will be assessed at ($12,000 per month X 12 X 12) $1,728,000. Future loss of MPF comes to $86,400, being 5 per cent of $1,728,000. Loss of Earning Capacity 48.The defence asserted that the Plaintiff’s entitlement to damages under this head lacked foundation and none should be awarded. I disagree. Damages are given to address the risk of unemployment in the future during the Plaintiff’s working life when he will suffer financial loss on account of his disadvantage in the labour market. That the Plaintiff’s condition and limited education and skill will put him at a disadvantage, I have little doubt. The risk of having to re-enter the labour market is genuine in the instant case. Madam Cheung herself was uncertain how much longer she could carry on running Sunrise Kitchen. 49.I consider an award reasonable and just in the circumstances. Damages will be determined as follows:
Future Operations 50.The orthopaedic surgeons were agreed that the Plaintiff required loose debris to be removed from his knee. According to Dr Lam, privately done, it would cost $30,000. Total knee-replacement surgery to be performed in 10 to 15 years’ time and possibly to be repeated in the distant future, would add another $300,000 to future expenses. Dr Tsoi opined that as only the patella was damaged, at worst the Plaintiff would only require total patellectomy or excision of the whole patella. Such a procedure would cost $30,000. 51.The Defendants contended that no more than $3,000 should be allowed as quality medical care was available in public hospitals. They saw no reason why they should have to fund the Plaintiff’s choice for private treatment. With that I agree. Further, Dr Lam did not say definitively that total knee replacement was definitely, or even likely to be required. It was to him but a possibility. Having examined the Plaintiff firsthand, he should have been able to speak of the need or likelihood of such operations. Instead, he merely repeated what the Plaintiff had told him as having been said by his previous doctors. Under this head of claim, I am only prepared to allow a sum of $5,000. Miscellaneous Expenses 52.Two items were contested. A claim for taxi fares totalling $9,760 was partially supported by receipts. I agree with Mr Ma’s submissions that no more than $5,000 should be allowed. The Plaintiff threw away his Rolex watch bought for $28,054 and damaged beyond repair in the accident. I accept his evidence in this regard. He should be reimbursed accordingly. 53.The remaining items of special damages were all agreed. They were past medical expenses, $8,888; tonic foods, $5,000; damage to the motor cycle, $11,000; helmet, $1,200; clothing, $500; and towing fee, $1,300. Summary of Damages
54.From the award of $3,170,407 must be deducted the interim payment made of $1,000,000 leaving a net sum payable in the amount of $2,170407. There was agreement that interest at 2 per cent per annum is payable on PSLA from the date of the writ and interest at half-judgment rate on pre-trial loss of earnings and special damages from the date of the accident. The Plaintiff shall additionally have his costs of the assessment, such costs to run from the date of entry of the judgment on liability on 16 December 2003 with certificate for counsel.
Mr David Hui Tai-wai, instructed by Messrs Chin & Associates, for the Plaintiff Mr Johnny K C Ma, instructed by Messrs Day & Chan, for the 1st and 2nd Defendants | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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