Muhammad Saddiq v. Cheung Chi Keung

HCPI 1018/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1018 OF 2006

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Coram : Before Master Levy in Court

Date of Hearing :   3 March 2008 and 6 March 2008

Date of Handing Down : 8 April 2008

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J U D G M E N T

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Introduction

1.On 4 April 2005 Mr. Saddiq met a traffic accident when he was driving a light goods vehicle (“LGV”) from Sha Tau Kok to Yau Tong to pick up second- hand goods for his transportation business.  The rear of his LGV was hit by another van.  As a result, his head hit against the headrest of the driver’s seat.  When he stopped the LGV, the offending van hit his vehicle again. He felt dizzy, and subsequently pain in his back and neck.

2.He was taken to the United Christian Hospital for treatment, and discharged on 8 April 2005.

3.He claimed that he still suffered residual pain at his back and neck.  He sues the driver for negligence.  Interlocutory judgment on liability has already been entered.  The hearing before me is for assessment of damages.

Damages Agreed

4.The only items not in dispute in this assessment are the 361 days of sick leave granted to Mr. Saddiq, a multiplier of 14 for the calculation of future loss of earnings (if awarded), and special damages of $7,220.

5.The remaining items of damages claimed are all disputed.  The main contentions are whether Mr. Saddiq is fit to resume his one-man transportation business upon the expiry of sick leave, and the amount of his earnings before and after the accident.

Evidence

6.The only witness called at the hearing is Mr. Saddiq.  He was cross-examined by counsel for the Defendant, Mr. Hemmings.  I have a general favourable impression of Mr. Saddiq as a witness whom I find having, by and large, given straightforward evidence.

7.Mr. Saddiq’s orthopedic expert is Dr. Johnson Lam and the Defendant’s is Dr. Danny Tsoi.  Their reports were admitted into evidence without oral evidence.

8.The Defendant at the hearing also adduced the evidence of surveillance by an investigation consultant in the form of a DVD taken of Mr. Saddiq in April and May 2007.  The person who did the surveillance and took the recording was not called.  Counsel for Mr. Saddiq, Mr. Ramanathan agreed to the admission of the surveillance DVD into evidence.  A photocopy of the photograph showing the impact caused by the accident to Mr. Saddiq’s vehicle was also produced as evidence by consent.

Injuries and Treatment

9.At the United Christian Hospital, Mr. Saddiq was hospitalized for management of his neck and back pain.  The X-ray records of his cervical and lumbar spines were normal.  He was referred to a course of physiotherapy treatments.

10.Upon discharge from the hospital, Mr. Saddiq shortly commenced a course of physiotherapy treatments consisting of application of hot pack and exercises.  Between the periods of April to July 2005, he had altogether attended 17 sessions.  According to the Physiotherapy Report written after the physiotherapy treatments, it reports that Mr. Saddiq’s range of movement (ROM) of his neck was still limited while that of the back was slightly improved.

11.Mr. Saddiq said that upon the completion of the course of physiotherapy, he still felt pain.  He had returned to Tuen Mun Hospital for neck and back pain on several occasions in early 2006.  He was treated with analgesics for the pain.

12.In June 2006, Mr. Saddiq, for the purpose of litigation, had a MRI scan of his lumbar spine.  The result does not disclose any lesions or any other abnormality.

13.Despite the absence of any abnormal findings, Mr. Saddiq claimed that he still had residual pain on his neck and back, particularly on the back.  He now feels pain when he bends his neck.  He further said that his lower back pain has prevented him from sitting down for longer than one hour.

14.Mr. Saddiq has since stopped receiving any treatment for his pain.  He now does sit-up exercises as well as exercising on his exercise bike at home to strengthen his back.  He said he has felt fitter, but is still unable to return to his pre-accident job, which required him to lift heavy objects.

Medical Experts

15.Dr. Lam examined Mr. Saddiq in February 2006 and Dr. Tsoi in May 2007.  After the assessment by Dr. Lam, Mr. Saddiq had a MRI scan referred to in paragraph 12 above.  Dr. Lam had seen the first MRI report before he wrote the first report in August 2006. However, as the second MRI examination was only taken in October 2007, the experts therefore did not have sight of the second MRI report when they examined Mr. Saddiq.  Before the second MRI examination, Dr. Lam was of the view that Mr. Saddiq had suffered a sprained back and a whiplash injury to his neck.  His neck has reached maximal improvement.  As for the back, Dr. Lam took that view that the medical treatment he had received (3 months’ physiotherapy) was appropriate.  He had further postulated several possibilities to account for the subjective pain Mr. Saddiq was complaining, one of which suggested possibilities was post-traumatic degeneration.  Dr. Lam therefore recommended Mr. Saddiq to undergo a second MRI examination. 

16.Before the result of the second MRI examination was available, Dr. Tsoi opined that Mr. Saddiq had only suffered strained muscle, ligament and tendons.  He was of a further opinion that Mr. Saddiq’s injury has attained the maximal medical improvement. 

17.The October 2007 MRI scan reveals that Mr. Saddiq has minimal spondylosis in his upper lumbar region.

18.After he has studied the second MRI scan result, Dr. Lam ruled out the other possibilities he had previously suggested in his earlier reports, and opined that the spondylosis changes in the lumbar area were probably due to post-traumatic degeneration caused by the injury, rather then by acceleration degeneration.

19.Mr. Tsoi, on the other hand, took the view that the presence of spondylosis is an incidental finding.  He is of a further opinion that a minor generative change such as the change found in Mr. Saddiq’s lumbar spine is not uncommon for a man of Mr. Saddiq’s age.  He therefore does not agree that the degenerative changes found in the lumbar region are related to the accident.

Discussion

20.The medical evidence should be considered together with my assessment of the credibility of Mr. Saddiq’s evidence, that is, whether he has exaggerated his condition.  In a case of this nature, it is not uncommon for a witness to exaggerate his injury to a certain degree in order to better the award.  In this particular case, after having observed Mr. Saddiq giving evidence for more than 3 hours at the hearing, I tend to think that he is on the whole an honest witness. 

21.He could have, if he wanted to, deliberately shown pain in his movement or facial expression.  He however has not done any of such things.  As a matter of fact, I observed that he was able to sit through his testimony continuously for more than 2 hours without showing any signs of pain or discomfort.  From this observation, I am rather satisfied that Mr. Saddiq’s condition has reached the maximal stage of recovery, as opined by Dr. Tsoi. I am therefore unable to accept Mr. Saddiq’s evidence that he cannot sit for longer than one hour.

22.My observation is further reinforced by the surveillance DVD played at the hearing, showing Mr. Saddiq going about his daily work and routines without any manifestation of physical restrictions or disabilities.  This observation, however, should only be confined to the context of Mr. Saddiq performing rather non-strenuous activity as he has changed his job as an office assistant at the time of surveillance.  The recording is not able to show whether he suffers any disabilities involving lifting of heavy objects or when driving.

23.As for the cause of the degenerative changes found in Mr. Saddiq’s lumbar region, the experts’ views differ greatly.  In determining whose opinion is to be preferred, I think the following features are important.

24.When Mr. Saddiq attended both experts, he had complained to them about the pain he was still suffering. Hence, there is the question of whether Mr. Saddiq had exaggerated the pain.  The Waddell test administered by Dr. Tsoi was negative. Hence, in my view, the chance of Mr. Saddiq having exaggerated the pain is quite small. In this respect, I am more impressed with Dr. Lam’s approach in that he had taken note of this unusual feature of pain, and was willing to further investigate the cause for this unusual feature by suggesting various possibilities and recommended for a second MRI.

25.Dr. Tsoi, on the other hand, does not have any appearance of open-mindedness.  Instead, he appears to have brushed aside Mr. Saddiq’s complaint of pain despite the negative Waddell result. He made no effort to investigate the subjective pain Mr. Saddiq experienced.

26.When the second MRI scan was subsequently available, Dr. Lam was able to draw a much firmer conclusion in respect of the finding of degenerative changes.  Dr. Tsoi however appears to be rather dismissive, and gave a sweeping generalization for the presence of lumber degeneration in the second MRI report.

27.For these reasons, I agree with Mr. Ramanathan’s observation that Dr. Tsoi’s opinion is more sweeping, and lacks independent judgment, whilst that of Dr. Lam’s is more balanced.  Thus, in areas where the experts differ, I would prefer Dr. Lam’s opinion than Dr. Tsoi’s.  I further accept Dr. Lam’s opinion that the degenerative changes that subsequently occurred were more likely to have been caused by the accident. 

Contentious Issues

(a)  The prospect of returning to the pre-accident job

28.Mr. Saddiq’s claim of being unable to return to his pre-accident business is of two folds - that he is not fit to lift heavy things as well as being unsuited to drive.  Regarding the issue of whether Mr. Saddiq is able to lift heavy objects, both experts agree that Mr. Saddiq may likely be able to lift heavy objects. Dr. Lam said that Mr. Saddiq could lift objects of moderate weight of about 40 to 50 lbs.  Dr. Tsoi is of the view that Mr. Saddiq could lift very heavy objects after some muscle strengthening exercises.  He however has not specified what weight he regards as “heavy”.

29.In order therefore to determine if Mr. Saddiq could return to his pre-accident work, and generally the kind of work he is able to do, I will first examine the nature of his pre-accident job.

30.Mr. Saddiq’s pre-accidental job was his own transportation business.  This job required him to drive a LGV and lift heavy goods on a regular basis.  I accept Dr. Lam’s assessment that the injury would make Mr. Saddiq unfit to lift heavy objects.  I think it is common sense that a person with a bad back would generally not be suitable to lift heavy things, as this would likely cause a re-occurrence of pain.  In the circumstances, I am satisfied that Mr. Saddiq is not fit to lift heavy objects because of the accident should he choose to continue to operate the same business.

31.Is Mr. Saddiq suitable to drive? Mr. Saddiq said in evidence that he did not consider himself fit to drive because he needed to look around when he drove.  He said the injury to his neck has prevented him from turning his neck when he was required to look around and turn his back when reversing his vehicle. I am however not impressed with this aspect of the evidence.

32.Contrary to Mr. Saddiq’s assertion, the medical opinions confirm that Mr. Saddiq was fit to drive.  According to the medical evidence, Mr. Saddiq’s neck has already achieved maximal stage of improvement.  The injury to his neck was quite minor, and I am satisfied, on the strength of the medical evidence before me, that he has recovered from the injury.

33.I find therefore, Mr. Saddiq is not able to prove that he is not fit to drive.  I reject this aspect of his evidence. 

34.Since Mr. Saddiq can continue driving the LGV, I do not see any reason why he cannot manage his bad back problem by engaging somebody else to do heavy lifting work. As a matter of fact, Mr. Saddiq had previously hired causal labourer at the extra costs of about $200 to $250 a day.  There is therefore no reason why he cannot solve the problem caused by his back injury by similarly engaging the help of a labourer to do the weight lifting work.

35.In the circumstances, I find it is more likely that Mr. Saddiq should be able to continue driving a LGV in connection with his pre-accident self-employed business.  The problem caused by his back can be resolved by engaging a labourer to help him lift heavy goods.  To conclude, I am satisfied that Mr. Saddiq, by modifying his previous mode of business, should be able to return to his pre-accident job.

(b)  Pre-accident earnings

36.At the time of the accident, Mr. Saddiq was operating his one-man transportation business.  He owned and drove a LGV for the purpose of buying second-hand goods such as clothes, electronic goods and toys, which were subsequently resold for a profit.  He said as his business was in cash basis, he could not produce any documents to support his income.  He claimed that before the accident, his profit for the year of 2004/05 was in the total sum of $334,500.  In this regard, he has produced a Profit and Loss Account of his business for the year 2004/05 which he had prepared, and a subsequent Notice of Assessment for Profits Tax for the same tax year issued by the Inland Revenue Department.  Hence, in the Statement of Damages, Mr. Saddiq claims $27,875 per month as his pre-accident earnings.

37.In his oral testimony, Mr. Saddiq agreed that his profits should be further reduced by the costs of casual labour (about $5,000 per year) and fuel ($3,000 per month). Mr. Saddiq conceded that his net annual profits should have only been about $293,500 (which is about $25,000 per month).

38.Despite Mr. Saddiq’s concession of the reduced profit, Mr. Hemmings does not agree that Mr. Saddiq can rely on the reduced income of $25,000 as his pre-accident earnings. Mr. Hemmings contends that, due to a complete lack of documentation, Mr. Saddiq has failed to prove that his pre-accident earnings of $25,000 a month.  Mr. Hemmings argues that Mr. Saddiq’s pre-accident earnings should be assessed with reference to his employment history in Hong Kong, and a figure $13,000  - which was the amount Mr. Saddiq earned in his earlier jobs in Hong Kong- should be adopted

39.Mr. Saddiq was 31 years old at the time of the accident, and he is now 34.  He is a native of Pakistan, and received secondary education there.  Prior coming to Hong Kong at the age of 21, he worked as a farmer.

40.Before 2000, he was a general labourer, working in construction sites and as a delivery worker.  He earned about $11,000 to $13,000 in these jobs.  His job at that time was also rather unstable.  His jobs usually lasted for about 4 to 18 months. His employment was frequently interrupted by his trips back home, each of which lasted for 3 to 6 months. 

41.Since 2000, he started to work as a truck driver.  His earnings seemed to have improved a little with a take home monthly income of about $15,000.  His jobs also seemed to have lasted longer, which was for about 12 months. 

42.In August 2002, Mr. Saddiq became unemployed for a year until August 2003.  During that time, he and his wife and children lived off social welfare benefits.

43.In his evidence, he is a little bit vague about when he exactly started his own business.  He said that he started it in August 2004 when he borrowed money from his friend to buy a LGV. The vehicle registration of the LGV numbered FN 1696 registered in his name was dated 16 September 2003.  His counsel, Mr. Ramanathan produced, by consent, a Motor Vehicle Licence and a Certificate of Insurance in Mr. Saddiq’s name of another LGV, numbered LB7458, which Mr. Saddiq said he owned at the time of the accident. He said he sold the first LGV, FN1696 when it was not working properly, and purchased a second LGV, LB7458. The LGV involved in the accident was not his.

44.From the various documents, I am more inclined to find that Mr. Saddiq started working for himself in around September 2003 when he bought the 10-year-old LGV, FN 1696, for the sole purpose of starting his own business one year after his unemployment. 

45.I am, however, far from impressed with the total lack of documentation in respect of Mr. Saddiq’s income.  Mr. Hemmings’ criticism of the self-serving nature of the 2004/05 Profit and Loss Account is not, in my view, without merit.  Mr. Saddiq should be at the very least able to produce some records such as bank accounts, receipts for the expenses (if not for his business income) to verify his profit and loss account. 

46.Further, as I have found that Mr. Saddiq started his self-employed business in 2003, he would have been required, for tax purpose, to prepare a profit and loss account for the year 2003/04. There should also be a tax return for that year.  I am however not shown any of such evidence.

47.In the circumstances, I am not prepared to accept the profit and loss account for the year 2004/05 or the Notice of Assessment for the Year of Assessment of 2004/05 as proof of Mr. Saddiq’s pre-accident earnings.  I therefore conclude that Mr. Saddiq is unable, on the balance of probabilities, to prove his claim of $25,000 a month as his pre-accident earnings.

48.Mr. Saddiq’s failure in proving his pre-accident earnings makes my task of determining his earnings extremely difficult.  In assessing what I regard should be a more accurate level of Mr. Saddiq’s pre-accident earnings, I should have regard to his overall employment history in Hong Kong.  Prior to 2003, he had been working in Hong Kong on or off for about 7 years.  Despite the relatively unstable nature of his jobs, his earning power seems to have been improved steadily, especially since he worked as a truck driver.  In determining Mr. Saddiq’s likely level of earnings, I am prepared to accept Mr. Ramanathan’s submissions that Mr. Saddiq’s earnings should have been substantially increased when he – similar to most people embarking on new business adventures - took a plunge by setting up his transportation business. Thus, I am unable to accept Mr. Hemmings’ contention of adopting $13,000 (Mr. Saddiq’s average salary when he worked as a general labourer) as Mr. Saddiq’s pre-accident earnings.

49.What should have then been the level of increase? According to Mr. Saddiq’s witness statement, he said that he did not make much money when he started the business because he did not have clients.  He said that his business only started to improve in about April 2004.  Thus while I accept that his earnings from the business would have been likely increased, it is however unfair to assess his earnings by using the best year without taking into account of the relatively poor performance in the first year of his business. A better approach, in my view, is to assess his pre-accident earnings by having regard to Mr. Saddiq’s earnings before he started his business (which was about $15,000 per month) and the profits he has made from the entire period of his relatively short-lived business. A fair figure, according to my assessment, should be around $17,000 to $20,000 (which is, incidentally, the median sum of his earnings of $15,000 before he started his business and the sum of $25,000 which Mr. Saddiq claims he earned before the accident).  Doing the best I can, I assess his monthly pre-accident income at about $18,500.

(c)  Post-accident earnings

50.As I have found that Mr. Saddiq is fit to resume his self-employed business with an engagement of a full time labourer, his business profit would be reduced by the extra labour costs.  According to Mr. Saddiq’s evidence, he had paid $250 a day for causal labourer. Hence, the extra labour costs would be about $6,500 per month ($250 x 26).  However as the engagement of additional labour would be on a full time basis, I am therefore prepared to allow a higher figure for labour costs because of the possible other expenses such as MPF contributions etc. I would say $7,000 per month is reasonable.  Hence, there would be a reduction of $7,000 from the profit.

51.In view of the above findings, Mr. Saddiq should be able to resume his business by hiring a full time labourer with a reduced profit of $7,000. In the premises, his post-accident earnings would have been about $11,500 ($18,500-$7000).

52.Having now disposed of the most contentious issues, I will next consider the various heads of damages claimed.

QUANTUM

(A)  Pain, Suffering and Loss of Amenities (PSLA)

53.Mr. Ramanathan submits that Mr. Saddiq’s injuries come below the “serious injury” category, and that the appropriate award should be about $300,000.  He relies on these cases to support this award: Chiu Wing Sze Karby v Chan Ying Wai, HCPI 616 of 1999 (unrep.), Joan Carol Boivin v Wong King Yin, HCPI 195 of 2000 (unrep.), Kwok Sui Shum Dorothy v Hui Lam Ho, HCPI 375 of 2001(unrep.), Chan So Kwan v Mak Siu Kwan Victor , HCPI 1487 of 2000 (unrep.), Liu Chun Kow Joe v Lee San Wing, HCPI 399 of 2001 (unrep.). In his closing submissions, Mr. Ramanathan submits a further authority of Ali Shoukat v Hang Seng Bank Limited, HCPI 3/2003 (unrep).

54.Mr. Hemmings contends on behalf of the Defendant that the award should not be more than $150,000, referring me to Tam Yuen Hoi v Sung Kay Interior Decoration Limited & Ors. HCPI 983 of 2001(unrep.), Chimmalee On-Uma v Waylung Waster Services Limited, DPCI 1945 of 2006 (unrep.), Tang Wai Tak v Chiu Hing Construction & Trasnportation Co. Ltd.& Ano., HCPI 188 of 2006 (unrep.), Woo Wai Kuen v Li Siu Keung trading as Alex’s Kitchen, , DCPI 209 of 2001 (unrep.).

55.Mr. Saddiq’s injuries in my assessment are a lot more serious than those plaintiffs in the cases referred to by Mr. Hemmings.  He suffers a whiplash injury to his neck as well as a sprained back.  He had to take sick leave for one year and received 17 sessions of physiotherapy.  At the time of the examinations by Dr. Lam and Dr. Tsoi, I am satisfied that Mr. Saddiq still, subjectively, suffered pain.  What is also significant is that he is found to have suffered, as a result of the accident, slight degenerative changes to the lumbar region. 

56.In my view, Mr. Saddiq’s physical injuries are not dissimilar to those plaintiffs in Joan Carol Boivin (ibid.) and Liu Chun Kow Joe (ibid.) (who had the additional complaints of depression), but slightly less serious than the plaintiff in Ali Shoukat (ibid.).  Having considered the comparable cases cited by both counsel, I take the view that the appropriate award should be $250,000.

(B)  Pre-trial Loss of Earnings

57.Mr. Saddiq was granted sick leave until 31 March 2006.  Hence during the period from the date of accident until the expiry of sick leave, he suffers a total loss of earnings.  Based on my assessment of Mr. Saddiq’s pre-accident monthly income at $18,500, his total loss of earnings from 4 April 2005 to 31 March 2006 (a total of 361 days) is: $18,500 /30 x 361 days = $222,617.

58.When Dr. Lam examined Mr. Saddiq in February 2006, he already opined that the latter was fit to drive though not suitable to lift heavy objects.  Hence, I am satisfied that he should be able to resume his self-employed business with the employment of a causal labourer to help him lift heavy objects.  Hence, he should have been able to earn a monthly salary of $11,500 upon the expiry of his sick leave.

59.Mr. Saddiq however chose not to return to his pre-accident work.  He found a job in May 2006, working as a messenger, earning about $3,000 per month.  In February 2008, he changed his job to work as an office assistant, earning $5,500 per month. 

60.In light of my findings above, I reject’s Mr. Saddiq’s claim that his pre-trial loss of earnings upon his expiry of sick leave should be assessed on the basis of the reduced earnings from the alternative employments.  The partial loss should be the extra costs of labour in the sum of $7,000 per month.  Hence from the period of 1 April 2006 to the date of assessment on 3 March 2008, his partial loss of earnings should be: $7,000 x 23 months and 3 days = $161,700.

61.Mr. Saddiq’s total pre-trial loss of earnings is therefore in the total sum of $ 384,317 ($222,617 + $161,700).

(C)  Future Loss of Earnings

62.Mr. Saddiq’s loss of $7,000 a monthly will continue in the future.  A multiplier of 14 is not disputed.  Hence, his future loss of earnings is: $7,000 x 12 x 14 =1,176,000.

(D)  Loss of MPF Contributions

63.In light of my findings that Mr. Saddiq is suitable to return to his self-employed business, there will be no loss of MPF contributions.

(E)  Loss of Earnings Capacity

64.The degenerative changes of the lumbar region, in my view, would be, more likely than not, leading to some disadvantage in the open market.  I would say a loss of equivalence of 4 months’ earnings of about $50,000 is reasonable.  I award a sum of $50,000 under this head.

(F)  Future Medical Expenses

65.On the medical evidence, I find that Mr. Saddiq has reached the maximal recovery for his injuries.  He claims a sum of $24,200 for his future medical expenses, relying on the estimation by Dr. Lam in his first report concerning the costs of physiotherapy and orthopedic consultations in the private section.

66.In determining if the claim is reasonable, I consider that I should examine if Mr. Saddiq would have a reasonable requirement for the treatments recommended by Dr. Lam in the future.

67.Dr. Lam’s estimation of the costs of future treatment was based on his evaluation of Mr. Saddiq’s condition in February 2006,  After the examination and up to the date of hearing, I observe that Mr. Saddiq has not sought any of the types of treatment recommended by Dr. Lam.  He had only gone to Tuen Mun Hospital and obtained analgesics to manage his back pain.  As he would not be expected to return to a job that requires heavy weight lifting, I do not think that it is reasonable to award him an amount in respect of the treatments recommended by Dr. Lam.  In my view, his future reasonable medical expenses should only be confined to the costs of medical treatment in outpatient as well as for painkillers to manage his back pain, which expanses would be quite minimum.  I consider a sum of $5,000 is reasonable.

(G)  Special Damages

68.The sum of $ 7,220 is agreed.

Summary of Damages

69.The total amount of damages I award is therefore as follows:

Conclusion

70.I enter judgment in the sum of 1,872,537 together with interest at 2% on general damages from the date of the writ to the date of judgment, and a half of the judgment rate of pre-trial loss of earnings and special damages from the date of accident to the date of judgment.  I further grant a cost order nisi that the Defendant pays Mr. Saddiq’s costs of the action together with certificate for counsel, which costs are to be taxed if not agreed. As Mr. Saddiq is legally aided, his own costs are be taxed in accordance with the Legal Aid Regulations.

Mr. Kumar Ramanathan, instructed by Messrs. John M Pickavant & Co. for Plaintiff.

Mr. John Hemmings, instructed by Messrs. Massie & Clement for Defendant.