Leung Wai Keung v. Choi Yee May
Read the full judgment text of HCPI 917/2005 on BabelCite. This High Court CFI judgment was delivered on 31 October 2008.
1. By the Writ of Summons filed on 30 September 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of employment arising out of negligence and breach of contract of employment and statutory duty of the Defendant, its servant or agents at Shop G33, Ground Floor, Empire Centre Shopping Arcade, Tsimshatsui East, Kowloon, Hong Kong (“the Shop”) on 19 May 2003.
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HCPI 917/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 917 OF 2005 ----------------------
---------------------- Coram : Before Master K.H. Hui in Court Date of Hearing : 1, 2and 22 September 2008 Date of Judgment : 31 October 2008 ---------------------------------------- ASSESSMENT OF DAMAGES ---------------------------------------- Introduction 1.By the Writ of Summons filed on 30 September 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages sustained in the course of employment arising out of negligence and breach of contract of employment and statutory duty of the Defendant, its servant or agents at Shop G33, Ground Floor, Empire Centre Shopping Arcade, Tsimshatsui East, Kowloon, Hong Kong (“the Shop”) on 19 May 2003. 2.Interlocutory judgment on liability was obtained on 10 May 2006 with damages to be assessed. The Accident 3.The Plaintiff was born on 30 September 1949. He was almost 54 at the time of the accident. He is 59 at the time of this assessment. 4.On 19 May 2003, while the Plaintiff was working at the Shop, he slipped and hit his head against some hard objects when he was backing away from some boiling liquid that had spat onto his trousers and scalded his legs (“the Accident”). Medical Treatments & Findings (i) General Treatments 5.After the Accident, the Plaintiff was taken to a nearby orthopaedics expert, Dr. Jack Wong, for treatment. Dr. Wong noted in his medical report dated 10 November 2003 that the Plaintiff sustained the following injuries:
6.Dr. Wong also noted that the Plaintiff made complaints as follow:
7.Dr. Wong opined that the Plaintiff suffered from contusion injury of sacrum and left knee which resulted in soft tissue injury. The Plaintiff further suffered from contusion of right hand which resulted in rupture of extensor tendon to the right middle finger. There was no brain contusion, sub-dural haematoma or other significant intra-cranial pathology. The Plaintiff was referred to see Dr. Fung Ching Fai, a neuro-surgeon, on 30 May 2003. 8.The Plaintiff was last assessed by Dr. Wong on 23 September 2003 with the following findings:
9.Dr. Wong was of the view that there would be some improvement in pain and tenderness with treatment and rest for another 2 months. The loss of active PIPJ extension will not improve further without surgical reconstruction. Nevertheless surgical reconstruction may not always achieve satisfactory result. 10.Dr. Wong concluded that it would be difficult for the Plaintiff to resume his pre-accident job as optician which demanded fine control of both hands. The Plaintiff may be suitable for other sedentary or light manual work, such as salesman. 11.The Plaintiff was admitted to the St. Teresa’s Hospital under the care of Dr. Fung Chi Fai on 31 May 2003 (12 days after the accident). Examination then was reported as showing positional vertigo and impairment of truncal balance. Magnetic resonance scan of the brain was normal. The Plaintiff was hospitalized for 3 days and at the time of discharge, he was ambulatory. 12.On 29 June 2003, the Plaintiff suddenly felt giddy with dimming vision. As a result, he fell. He was admitted to the Hong Kong Baptist Hospital for evaluation and treated by Dr. Chan Lai Lok who diagnosed that there was a partial tear of the extensor tendon of the right middle finger. Dr. Chan treated the Plaintiff with a splint. There was no complaint of neck/back pain or any right upper limb symptoms. This incident was noted by Dr. Edmund Woo, Neurologist for the Defendant, in his medical report dated 27 October 2004. This incident was not mentioned in Dr. Wong’s medical report which nevertheless stated that the Plaintiff had a fell on 23 July 2003 which further aggravated the right middle finger problem. It is not clear whether the Plaintiff faced one or two further accidents. 13.Apparently the Plaintiff continued to receive treatments from Dr. Fung thereafter. As from February 2004, the Plaintiff also sought consultation from Dr. Tsang Ping Ham (until December 2004). 14.Sometime in March 2004, the Plaintiff was referred to receive physiotherapy by Dr. Fung. The first session of treatment was on 22 March 2004. 15.In the report of Mr. Horace M.H. Wong, physiotherapist of Cosmo Physiotherapy Centre, dated 12 May 2004, it was noted that there was laceration over the Plaintiff’s right thumb and bruising over his dorsum of right middle and ring finger MCP joints area. However, the Plaintiff “cannot report the injury mechanism because of medication taken”. 16.Mr. Wong commented, in his further report 21 May 2004, that the Plaintiff’s performance was not consistent in the gripping power test (high coefficient of variation). 17.On 3 June 2004, the Plaintiff was first seen in the Orthopaedics Specialist Clinic of Queen Elizabeth Hospital (“QEH”) upon the referral of Dr. Tsang. Dr. Lo Che Yuen of the Department of Orthopaedics and Traumatology, QEH, reported that there was flexible ‘buttonhole’ deformity of his right middle finger with supple joints. The Plaintiff was referred to the Occupational Therapy Department for a “buttonhole” splint. The diagnosis of his right middle finger problem was extensor tendon central slip injury. The Plaintiff was last treated at QEH in February 2005. 18.In July 2004, the Plaintiff was admitted to St. Teresa Hospital, by Dr. Fung, for headache and chest pain. It was noted that there was no complaint of any back, or any right upper limb symptoms. 19.In February 2005, Dr. Fung referred the Plaintiff to the Department of Orthopaedics and Traumatology of PWH for treatment. Professor Hung admitted the Plaintiff into PWH for a suspected “mass” on the lateral aspect of his right arm. Dr. Tse of the Department of Orthopaedics and Traumatology, PWH, stated in his medical report dated 21 June 2005 that ultrasound scanning did not show any tumour. Physical examination revealed weakness (MRC grade 3 to 4) over right upper limb and local tenderness over right shoulder. X-ray of cervical spine revealed narrowing of cervical disc spaces from C4 to C7 and ultrasound revealed no abnormalities over right shoulder. CAT brain revealed no significant pathology and blood tests including routine haematology, renal liver function tests, sugar and thyroid function tests were essentially normal. The Plaintiff was assessed by neurologist, with electromyographic study performed which shown equivocal neuropathic changes involving right biceps and brachioradialis but sparing deltoid. However, the findings could not totally explain the complaints raised by the Plaintiff. MRI performed on 16 April 2005 revealed probable foraminal compression of right C6 root and left C7 roots. 20.On 28 June 2005, Professor Hung wrote to Professor Luk of Department of Orthopaedic Surgery of Queen Mary Hospital (QMH) requesting for expert opinion in relation to the Plaintiff’s case. It is not clear if there was any reply as none was included in the hearing bundle. 21.The Plaintiff continued his treatments at PWH and was referred to the spine clinic sometime in August 2005. The Plaintiff was admitted into PWH in September 2006 and operation for anterior decompression and disc replacement at C5/6 and C6/7 was performed on 8 September 2006. Post operatively, the upper limb numbness was improved. However, the Plaintiff had mild hoarseness of voice and sore throat. The Plaintiff was discharged on 10 September 2006. 22.The Plaintiff was subsequently diagnosed with recurrent laryngeal nerve palsy, likely related to intra-operative nerve fraction injury. 23.The Plaintiff had also received treatments from Department of Psychiatry, Neurology Clinic and clinical psychologists of PWH. The Plaintiff was diagnosed to have migraine but it was not related to the Accident. (ii) Medical reports of Neurologists 24.The Plaintiff was examined by Dr. Edmund Woo on 25 October 2004 in the presence of the Plaintiff’s wife. The Plaintiff complained of residual headache, giddiness, impaired memory and weakness in the right hand. The Plaintiff claimed that his legs were weak and that he walked unsteadily, often crossing into the paths of other people on the street. He was independent in his activities of daily living. He can be on his own within his neighbourhood but he had to be accompanied when he ventured beyond. 25.The Plaintiff demonstrated a moderate degree of global cognitive dysfunction on mental state examination. However Dr. Woo opined that such a magnitude of cognitive impairment was observed only after a severe head injury in which there was significant parenchymal brain damage and primitive reflexes and/or paratonia were evident on examination to corroborate frontal lobe dysfunction. In the Plaintiff’s case, he only had a mild head injury, there was no objective sign of frontal lobe dysfunction on examination, and there was no radiological evidence of any parenchymal brain damage. 26.Dr. Woo was of the view that neurophysiological principles dictate that the motor deficits in an extreme associated with a brain injury take on a pyramidal distribution in which the muscle weakness is characterized by a differential involvement of the agonist and the antagonist muscles at each joint, and the weakness is associated with hypertonia (increase in muscle tone) and hyper-reflexia (hyperactive deep tone reflexes). The Plaintiff demonstrated moderate weakness in the muscles of the right upper and both lower extremities, but such weakness was characterized by an equal involvement of the agonist and the antagonist muscles at each joint. There was no associated hypertonia or hyper-reflexia. 27.For these reasons, Dr. Woo doubted the genuineness and integrity of the Plaintiff’s complaints. Dr. Woo opined that the Plaintiff’s deficits were either feigned or grossly exaggerated. 28.The Plaintiff was examined by his neurologist, Dr. Brian Choa, on 15 June 2006. 29.In his medical report dated 15 June 2006, Dr. Brian Choa noted that the Plaintiff sustained a minor head injury because of the Accident. There was no clear evidence of loss of consciousness, no post-traumatic amnesia and no structural abnormalities detected on scanning. A post concussion syndrome can nevertheless occur with this type of injury, but it would not amount to more than some headache, dizziness and absent-mindedness and would be expected in most cases to improve rapidly over weeks to months. 30.Dr. Choa opined that there were features of exaggeration in his examination of the Plaintiff. There was an intermittency of effort on motor testing, when the objective findings (such as reflexes, tone etc) showed no significant abnormalities. His ability to walk in tandem and support his full weight on his heels and toes gave lie to the apparent weakness when tested on the couch. His neck movements were much freer when he was asked to turn from side to side to examine his eardrums than when they were formally tested. The Plaintiff was entitled to 12 months sick leave from neurological point of view. 31.Dr. Woo in his further report dated 1 November 2006 stated that the migraine suffered by the Plaintiff had no relationship with the Accident. Dr. Woo maintained that an appropriate duration of sick leave was 6 months. (iii) Medical reports of Orthopaedics Experts 32.In the joint medical report dated 26 July 2006 prepared by Dr. David Cheng (Orthopaedics expert for Defendant) and Dr. Johnson Lam (Orthopaedics expert for the Plaintiff), the doctors noted that the Plaintiff complained of (i) pain over his right hand, especially the middle finger; (ii) pain and stiffness of the neck, more so one year after the Accident; (iii) weakness of lower limbs and needed a stick for walking; (iv) headache and dizziness blurring of vision with light flashiness; (v) urgency of mituration; loss of sexual interest and (vi) weakness of the whole of the right upper limb. The examination took place on 6 June 2006. 33.The doctors noted that during the examination, the Plaintiff walked with a stick in his right hand. He could walk without the stick but was unsteady. He cannot support himself on one leg. He stated that he cannot squat down. 34.As to the right middle finger, there was a so-called buttonaire deformity, i.e. the proximal interphalangeal joint was held in a flexion contracture of 70°. There was no active extension. Active flexion is about 20°. There was some weakness of the right upper limb as a whole. From an orthopaedic consideration, the doctors agreed that the effect of these injuries on the Plaintiff to be mild. While there was some stiffness of the finger, the overall function of the hand was preserved. The Plaintiff should be able to resume his pre-accident job as an optician and salesperson. 35.The doctors noted that there was some degeneration or a condition called cervical spondylosis. However, they agreed that this condition was probably of no relationship to the accident in question. (iv) Medical reports of Psychiatrists 36.The Plaintiff was examined by Dr. Peter Ho (his psychiatrist) and Dr. Chung See Yuen (psychiatrist for the Defendant) on 25 June 2007. The doctors prepared a joint report dated 25 July 2007. 37.Both doctors opined that the Plaintiff suffered from post concussional disorder and adjustment disorder with depressed mood. Dr. Chung opined that the Plaintiff should be able to return to his pre-accident job 6 months after the accident while Dr. Ho said 8 months was more appropriate. 38.The doctors agreed that the Plaintiff should continue to receive treatment from psychiatrist and psychologist. Dr. Chung estimated that the treatment cost in private sector was about $25,000 and $15,000 per year respectively. The estimation made by Dr. Ho was $24,000 to $36,000 per year for attending a psychiatrist and $24,000 for attending a psychologist. Dr. Ho was of the view that the Plaintiff required treatment for 3 years. The exact duration depended on his progress. The Plaintiff’s evidence 39.The Plaintiff gave evidence in Court. He adopted the contents of his witness statement as his evidence in chief. 40.The Plaintiff told the Court that he was still receiving treatments as follow:
41.The Plaintiff ceased his occupational therapy and physiotherapy treatments since after he received the operation at PWH in September 2006. The Plaintiff said he had 2 other operations in 2007 and 2008 respectively. Nevertheless, these 2 operations had nothing to do with the Accident. 42.The Plaintiff complained that he was still suffering from the following:
43.Under cross-examination, the Plaintiff denied that he had exaggerated his injuries. He said he needed a stick to walk if he felt dizzy. The Defendant’s Case 44.The Defendant did not call any witness. Nevertheless, two surveillance tape/disc were produced as exhibit. The video records were taken in 2004 and 2008 respectively (hereinafter referred to as “2004 Tape” and “2008 Tape” respectively). 45.The Plaintiff did not object to the production of these Tapes but raised concerns about the contents of the reports, prepared by investigation company, commenting on the contents of the Tapes. 46.While I admitted the Tapes as evidence in this matter, I did not admit the contents of the corresponding reports as evidence save and except the descriptions as to when and where the footages were taken. The reason is that the contents of the reports are comments of the investigators. The Court should not consider their comments in this regard. 47.For the same reason, I also did not take into consideration of the comments of the doctors mentioned herein in relation to the contents of the Tapes. 48.The 2004 Tape, taken in late December 2004, shown that the Plaintiff can walk in a normal gait; walk up and down staircase at the MTR station; operate ATM machine and put money and ATM card into a wallet with his right hand. 49.The 2008 Tape, taken on 26 March 2008 and 22 April 2008 respectively, shown that the Plaintiff can walk with a normal gait. The footage of 22 April 2008 shown that the Plaintiff talked over a phone and can use/hold chopsticks with his right hand with no problem. Pain, Suffering and Loss of Amenities 50.The Plaintiff claimed $300,000 under this head. 51.Mr. A. Sakhrani, Counsel for the Defendant, submitted that the award should be $125,000. He referred the Court to the following authorities to support his submission.
52.While the Plaintiff raised a number of complaints, the injury of the right middle finger and the psychiatric/ psychological conditions are the only key disabilities accepted by the doctors. The contents of the Tapes shown that the Plaintiff can walk in a normal gait and use his right hand to handle daily living needs. I have considered all the circumstances of this case and the authorities cited by the Defendant. I am of the view that a reasonable and fair award under this head is $150,000. Pre-trial Loss of Earnings 53.The Plaintiff claimed for a full loss of earnings under this head. 54.The Defendant disputed the quantum of the Plaintiff’s monthly salary and submitted that the Plaintiff should only be entitled to a loss of income for 9 months at the rate of $25,000 per month. (i) Monthly Salary 55.There are 2 employment contracts before the Court dated 1 March 2002 and 1 March 2003 respectively. 56.Under the first contract, the Plaintiff was employed by the Defendant as a part-time Optometrist earning a monthly salary of $25,000 (with 12 months pay). The Plaintiff was not entitled to any annual leave. His working hours was from 10 am to 8 pm from Monday to Sunday. 57.Under the second contract, the Plaintiff was employed by the Defendant as an Optometrist with a monthly salary of $40,000 (13 months pay) with annual leave for 7 days. Apart from these, the other terms were the same as the first contract. 58.Mr. Sakhrani submitted that it was inherently improbable that the salary of the Plaintiff be raised from $25,000 to $40,000 together with additional benefits while his working hours and duties remained the same. Counsel further submitted that the inconsistencies of the Plaintiff’s evidence concerning whether he had received his salary since after Chinese New Year in 2003; there was no reason for the Plaintiff’s boss to raise the salary by 60% when he was in need of money to treat his cancer and the tax return only showed an income of $25,000 per month all pointed to the direction that the Plaintiff’s evidence be rejected. 59.While there is no positive evidence from the Defence as to what was the monthly salary of the Plaintiff at the material times (maybe it is because the Plaintiff’s boss passed away in early December 2003), the plaintiff has the burden to prove his income on a balance of probabilities. 60.The Plaintiff had failed to deal with the queries mentioned hereinabove by the Defendant under cross-examination. There was nothing plausible from the Plaintiff as to why there was such a raise in his salary. It is my finding that the Plaintiff had failed to prove that his monthly income was $40,000. Instead, it is my finding that his monthly income was $24,000. (ii) Sick Leave 61.Dr. Choa said that the Plaintiff required a sick leave of 12 months while Dr. Woo opined 6 months would be sufficient for treating the Plaintiff’s neurological injury. Dr. Chung was of the view that the Plaintiff should be able to return to his pre-accident job 6 months after the accident while Dr. Ho said 8 months was more appropriate. The Orthopaedic experts expressed no view in this regard. Dr. Fung said sick leave for 2 years was reasonable. 62.I noted that the Plaintiff pleaded in his Statement of Damages that he was granted sick leave since after the accident. Nevertheless, there is nothing before the Court to support it and to explain why sick leave for such a long period should be granted. 63.The burden is on the Plaintiff to prove his damage. Even if the Court accepts that some doctors (likely to be government doctors) did grant sick leave to the Plaintiff as alleged, such granting of sick leave is merely a piece of expert opinion for the Court’s consideration. It is an opinion, like that offered by the experts in private practice in this case, as to when the Plaintiff should have recovered. In the absence of any evidence of the reasons for granting such a long sick leave by the government doctors, I am of the view that this piece of evidence is of minimal assistance. 64.I do not accept the view of Dr. Fung. He based his opinion on the subjective complaints of the Plaintiff. The doctor had failed to elaborate his opinion in details in his medical report dated 20 April 2005. On the other hand, the other experts had conducted tests and fully elaborate the findings. 65.In the light of all the circumstances of this case, sick leave for a period of 12 months is appropriate. 66.Some allowance should also be granted to the Plaintiff to look for a new job bearing in mind his age and residual incapacities. A period of 3 months is appropriate. (iii) Can the Plaintiff return to his pre-accident job? 67.Apart from Dr. Wong and Dr. Fung, all other doctors in this matter answered this question in affirmative. Dr. Wong simply said that the occupation of an optician demanded fine control of both hands and thus it would be difficult for the Plaintiff to resume his pre-accident job. The evidence, however, does not support this. At the most, there is some problem, as acknowledged by all other doctors, with the active extension of the right middle finger. It is not a case where the Plaintiff loses control of both hands. For this reason, I do not accept Dr. Wong’s view in this regard. I also reject the opinion of Dr. Fung for the same reasons concerning sick leave as mentioned hereinabove. 68.In other words, it is my ruling that the Plaintiff is able to return to his pre-accident job 15 months after the Accident. He is entitled to $24,000 x 15 months = $360,000 under this head. The loss of MPF is $360,000 x 5% = $18,000. Post-trial Loss of Earnings 69.In the light of my ruling hereinabove, I make no award under this head. Loss of Earning Capacity 70.Browne LJ said in Moliker v A Reyrolle & Co Ltd [1977] 1 WLR 132, 142 A-C
71.With the resultant disabilities from the Accident, I have no doubt that the Plaintiff will suffer some disadvantage and handicap in the labour market. Bearing in mind his age and the job nature of his employment, I am of the view an award of $150,000 is appropriate. Medical Expenses (i) Already incurred 72.As it is my ruling that the Plaintiff is only entitled to sick leave for 12 months (i.e. up to May 2004), those medical expenses incurred thereafter are not recoverable unless the Plaintiff can justify the same. Nevertheless, there is none except for the psychiatric and psychology treatments at PWH which are supported by Dr. Ho and Dr. Chung. 73.The Plaintiff attended 5 different departments of PWH for treatments incurring a total cost of $4,160. The average cost of each department is $832. Thus, the average total cost for psychiatric and psychology treatment is $1,664. 74.The cost for consulting the following doctors/hospital up to May 2004 are:
75.The total award under this head is $1,664 + $49,949 = $51,613. (ii) Future Medical Expenses 76.The Plaintiff claimed $40,000 for future orthopaedic medical treatments for 2 years after trial. He further claimed $162,000 for psychiatric and psychology treatment in the private sector. 77.There is nothing in the experts’ report indicating that the Plaintiff required any further orthopaedic medical treatment although the doctors said that treatment on a need-to basis would be required. A lump sum of $10,000 is reasonable. 78.As to psychiatric and psychology treatment, neither Dr. Chung nor Dr. Ho can give an exact estimation of cost required as, understandably, it depends on the charges of individual practitioner and the progress of the Plaintiff. In these circumstances, the best I can do is to take the average as estimated by the experts. 79.For psychiatrist, Dr. Chung opined that $25,000 per year was sufficient. Dr. Ho put forward a range of $24,000 to $36,000. I take the average at $30,000 per year. For psychologist, Dr. Chung said $15,000 would be enough. Dr. Ho said it required $24,000 each year. I take the average at $20,000. 80.I noted that these are the cost for treatment in private sector. While the Plaintiff is along receiving treatment in government hospitals, I do not think that it is unreasonable for him to seek further treatment from private practitioners. Dr. Ho opined that the Plaintiff required treatments for 3 years from August 2007. In other words, the Plaintiff only requires further treatment for another 1 year and 9 months. The total cost is:
81.The total award under this head is $10,000 + $87,500 = $97,500. Travelling Expenses 82. The Plaintiff claimed $10,000 for expenses incurred and $5,000 for future travelling expenses. The Defendant only accepted $3,000. 83.I allow $10,000 for the expenses incurred but only allow $2,000 for the future travelling expenses. Tonic Food 84. The Plaintiff claimed $110,000 under this head. The Defendant only agreed $3,000 as there is no evidence as to what they are and what benefit they would bring. 85.In all the circumstances of this case, an award of $15,000 is reasonable. Summary of Quantum 86.In summary, the award is as follow:
87.Credit must be given to the sum of $1.5 million received by the Plaintiff in the Employees Compensation Claim. The award is less than the compensation received by the Plaintiff under the Employee Compensation Claim. Interest 88.Interest at half judgment rate will be awarded on special damages and pre-trial loss of earnings from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment. Costs (i) Costs for the hearing on 6 March 2008 89.This assessment was first listed before me on 6 March 2008. The Plaintiff, then represented by Mr. T. Wong of Counsel instructed by Messrs. Yip, Tse and Tang, made an application for adjournment on the ground that the Plaintiff had a hoarse voice and was unable to give audible evidence. Mr. Sakhrani opposed the application on the ground that the Plaintiff’s complaint was not a genuine one. There was no medical evidence before me to support or contradict the Plaintiff’s complaint. I granted the application and with costs reserved. I also observed that it was very likely that I would order costs against the Plaintiff. Yet, should the Plaintiff be in the position to produce medical evidence to support his complaint was a genuine one, the position would be different. 90.Up till now, there is no evidence to support the complaint of the Plaintiff on 6 March 2008. The Plaintiff sought the adjournment and should bear the costs. Although there is no need for me to make any order in the light of the costs order made hereinbelow, for completeness sake, I also make an order nisi (to become absolute 14days after the handing down of this judgment) that the Plaintiff do pay costs of and occasioned by the adjournment together with costs thrown away to the Defendant to be taxed if not agreed. Certificate to Counsel. (ii) Generally 91.I make an order nisi (to become absolute 14 days after the handing down of this judgment) that the Plaintiff do pay the Defendant the costs of this assessment to be taxed if not agreed. Certificate to Counsel.
The Plaintiff, Leung Wai Keung, in person. Mr. Ashok Sakhrani instructed by Cheng & Yeung & Co. for the Defendant |
Cases cited in this judgment