Fan Jian Hui v. Chan Hak Man and Another

DCPI 2095/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2095 OF 2008

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BETWEEN

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Coram: H.H. Judge Chow

Date of Hearing: 1^st June 2009

Date of handing down Judgment: 16^th June 2009

JUDGMENT

1.This is the hearing to assess the damages to be awarded to the Plaintiff.  Judgment on liability was entered against the Defendants in favour of the Plaintiff on 19.5.2009.

2.As a result of a road traffic accident which occurred on 25.9.2007, the Plaintiff suffered from tenderness over neck and both lower legs, as well as minor head injury.  He has residual neck pain, and the range of movement of his neck was reduced.  He also complained of blurred vision.

3.Following the accident, the Plaintiff was hospitalized until 28.9.2007.  Sick leave was granted until 16.3.2008.  Between 5.10.2007 and 10.3.2008, he received treatment from Dr. Tsoi Wing Sang on 13 occasions.  Between 10.10.2007 and 4.1.2008, he received 17 sessions of physiotherapy treatment at the Princess Margaret Hospital.

Damages claimed

Pain, suffering and loss of amenities (“PSLA”)

4.The Plaintiff claims $180,000 for PSLA.  His Counsel relies on the case of Chan Siu Youn v. Ng Kam Man and Others (HCPI 533/1999) and Tai Yuk Wong v. Phong Kwok Fung and Another (DCPI 1405/2005) to support the claim.

5.In the case of Chan Siu Youn, the plaintiff sustained sprain reck injury as a result of a traffic accident.  He had physiotherapy for 3 months.  Some but incomplete recovery was achieved.  He attended the orthopaedic department for follow-up treatment for more than a year, but his neck pain could not be totally relieved.  At the time of the hearing, he was still suffering from on-and-off residual neck pain, and he could not perform long hours of overhead ceiling work due to neck pain on prolonged neck extension.  The court made an award of $100,000 under PSLA.

6.In the case of Tai Yuk Wong, the Court made the following finding:-

“As a result of the accident, the plaintiff suffered whiplash injury to his muscle and soft tissue.  He had persistent neck pain and weakness on his upper limbs for about a year.  He has been granted sick leave for about 2 years.  He has given up his skiing activity as a result of his injuries.  According to the medical opinion of Dr. Lau, the residuary neck pain and upper limb numbness of the plaintiff are permanent.  According to Dr. Cheung a subjective neck and shoulder pain of a mild nature remained with the plaintiff about a year and 4 months after the accident.  Dr. Cheng gave no projected forecast as to when the plaintiff’s residuary pain would subside.  I accept the plaintiff still had residuary mild neck and shoulder pain at the date of the assessment hearing. …… I consider an award of HK$150,000 appropriate for the pain, suffering and loss of amenity suffered by the plaintiff in the present case.”

(Underlines added)

It is obvious that the injuries sustained by the Plaintiff in these 2 cases are far more serious than what the Plaintiff suffered in the present case.  So I would disregard these 2 cases in the assessment of the PSLA award.

7.On the other hand, the Defendant referred to the case of Tai Yuk Wong and two other cases.  In respect of the two other cases, the Defendant submits:-

“(ii)         In Li Ting Fai DCPI 807/2007，the Plaintiff, M/37, was injured when the taxi he was riding was hit by another taxi from behind, and sustained neck injury in the form of paraspinal muscular tenderness.  He was given 48 sessions of physiotherapy.  The Court accepted that it was a mild case of whiplash neck injury affecting soft tissue only.  PSLA of HK$90,000 was awarded.

(iii)                   In Wong Kin Hung DCPI 1233/2006, the Plaintiff, M/40, a taxi driver, had a sprained neck injury as a result of his taxi being hit by another car at the rear back and the taxi toppled over.  He was hospitalized the same day and treated with physiotherapy, analgesic and neck collar.  He was discharged 2 days later.  He received physiotherapy for more than 3 months but there was no complete recovery.  The Plaintiff suffered intermittent residual neck pain.  He was awarded HK$70,000 for PSLA.

Each case turns on its own facts; in this case, the Plaintiff’s injuries were much less severe than cases cited, reasonable PSLA should be $40,000 to $50,000.”

8.Having regard to the seriousness of the injuries suffered by the Plaintiffs in the cases of Li Ting Fai and Wong Kin Hung, I would award $60,000 under PSLA.

Loss of earning

9.The Defendant submits that there is no proof of pre-trial earnings because the Plaintiff is not the employer of CX Courier Ltd. (“CX”).  It is not necessary to determine such relationship between the Plaintiff and CX.  No doubt each month, CX would pay $10,000 to the Plaintiff, subject to deduction of expenses on petrol.  His actual income is in the sum of $9,500.

The Defendant questions the need for 5.5 months sick leave because (1) the injuries were minor, and (ii) the necessity of 2 months’ sick leave granted by the Top Medical Health Centre from 15.1.2008 to 16.3.2008 was doubted.  A private clinic was consulted only after PMH doctors indicated on 8.1.2008 that no more sick leave would be granted after 14.1.2008.  Instead of paying $30 each visit to a public clinic the Plaintiff chose to pay $130 to see a private doctor, receiving only analgesics and referrals to physiotherapy which was not even taken up.  This is clearly doctor shopping for the purpose of getting sick leave.  Sick leave of 2 months granted by Top Medical Health Centre should not be counted.

10.The consultation summary of the Hospital Authority dated 8.1.2008 states “Ask for sick leave: explain to him for only one more week sick leave only.”  This is different from saying no more sick leave would be granted after 14.1.2008.  If his inquires were so light that no more sick leave should be granted to him after 7 days’ sick leave, then the doctor should not have given him this sick leave of 7 days in the first place.  He should only have been given 1 day sick leave instead! No expert medical evidence was adduced by the Defendants to show that the 2 months’ sick leave granted by the Top Medical Health Centre is unnecessary.  Hence I cannot accept the submission of the Defence Counsel in this regard.  The loss of past earnings is $54,041 (($9,500x5) + ($9,500x5/29) + ($9,500 x 16/31)).

11.I accept the Plaintiff’s evidence that he did spend $3,000 on tonic food.  I find that this is a reasonable sum.  So I would award him this amount.

12.I make the following awards to the Plaintiff:-

13.I order that the Defendants do pay, jointly and severally pay, within 14 days from today, the sum of $125,996 to the Plaintiff, with interests thereon: interest at 50% judgment rate on $65,996 from 25.9.2007 to 16.6.2009, on $60,000 at 2% per annum from 30.9.2008 to 16.6.2009, and at judgment rate on $125,996 from 17.6.2009 until satisfaction. 

Costs

14.I make an order nisi, to be made absolute in 14 days’ time, that the Defendants do pay to the Plaintiff, jointly and severally, costs of these proceedings relating to the assessment of damages, to be taxed, if not agreed, with certificate for Counsel. 

The Plaintiff:   represented by Mr. Albert Cheung, instructed by Messrs. K.Y. Woo & Co., Solicitors.

The Defendant:   represented by Mr. Wilfred Tsui, instructed by Messrs. Yip & Partners, Solicitors.