Ho Kin Keung v. Tong Kin Wa

DCPI 2620/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2620 OF 2008

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

BETWEEN

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

Coram : Her Honour Judge Mimmie Chan in Court

Date of hearing : 20 October, 2009

Date of handing down Judgment : 24 November, 2009

JUDGMENT

Background

1.On 19 December 2005, Mr. Ho sustained injuries when he was driving his motorcycle and was hit by the Defendant, Mr. Tong, who failed to stop his car at a road junction. Mr. Tong 's vehicle crashed into the left side of Mr. Ho's motorcycle, knocking Mr. Ho down onto the road. As a result, Mr. Ho sustained injuries to his back, right hand, right knee, left knee and right wrist.

2.Judgment on liability was entered in favor of Mr. Ho on 4 September 2009, with damages to be assessed. The hearing on 20 October 2009 was for assessment of the damages payable to Mr. Ho.

3.Mr. Ho was admitted to the Accident and Emergency Department of the United Christian Hospital ("UCH") for treatment after the accident. He was reported to have right hand and right knee abrasions. He also complained of right wrist pain. X-rays showed that there was no fracture in either the knee or wrist. Mr. Ho was discharged on the same day, with sick leave granted from 20 December 2005 to 24 December 2005.

4.Mr. Ho attended a private practitioner, Dr. Ho, on 26 December 2005. According to Dr. Ho's report, his examination of Mr. Ho revealed abrasion wounds in the right lower leg, the right knee, the right lower thigh and the right forearm. He was given sick leave from 20 December 2005 to 2 January 2006. Mr. Ho continued to consult Dr. Ho between January 2006 and March 2008. It was on 12 January 2006 that Mr. Ho first complained to Dr. Ho of pain and numbness over the left sacro-iliac joint which had commenced 2 days earlier, and which Mr. Ho claims to be related to the accident. Physical examination by Dr. Ho that day revealed mild tenderness over the joint, but Dr. Ho recorded that the range of Mr. Ho’s movement of the lumbosacral joint was satisfactory, save that Mr. Ho could not squat. An x-ray of both Mr. Ho's hips was ordered on 1 February 2006, which x-ray was reported to be normal.

5.Mr. Ho returned to UCH on 24 January 2006, complaining of low back pain and left knee pain sustained after the accident. X-ray of the lumbosacral spine did not show any fracture. Mr. Ho was referred to physiotherapy.

6.According to the physiotherapist director of Sik Sik Yuen Physiotherapy Centre ("SSY"), Mr. Ho commenced his physiotherapy assessment and treatment at SSY in January 2006. According to the SSY report, Mr. Ho first complained of left back pain, left knee pain, right forearm and thumb pain, and left shoulder pain. On physical examination, his lumbar movement was found to be normal. The straight leg raising test was insignificant but with tender spot over the left PSIS and sacroiliac joint area. Mr. Ho 's left shoulder movements were reported to be in full range but with pain in abduction and horizontal flexion at the end of range. Swelling and tenderness was detected at his left acromioclavicular joint. There was also tenderness in his medial tibiofemoral joint line area.

7.According to the SSY report, there was 90% improvement in the pain in Mr. Ho 's right lateral elbow and thumb after several sessions of treatment. There was also 80% to 90% decrease reported in the left knee pain after treatment. There was only residual pain reported on circumduction of the shoulder joint. In respect of the left sacroiliac joint and the left L5/S1 segment, the SSY report records a decrease in pain and an increase in sitting tolerance after treatment, but with residual pain after prolonged sitting. According to SSY, Mr. Ho received 33 sessions of treatment in total and stopped further sessions on his own accord after 26 May 2006.

8.Mr. Ho sought treatment from a bonesetter and received acupuncture treatment from 21st June to 2 August 2006. He also received Chinese manual therapy for his back pain from 29 October 2006 to 3 September 2007.

9.One year after the accident, on 9 December 2006, Mr. Ho consulted Dr Loong in respect of his left-sided low back pain and numbness of the left lower limb. Dr. Loong reported that his physical examination had shown that Mr. Ho's lumbar spine was normal. There was slight limitation of left straight leg raising, and slightly reduced sensation over the left leg and foot. According to Dr. Loong, an MRI examination was performed on 28 December 2006. L4/5 disc prolapse was found. According to Dr. Loong, this resulted in a moderate encroachment onto the descending L5 nerve roots bilaterally. There was also L5/S1 disc prolapse found, resulting in encroachment onto the descending right S1 and exiting right L5 nerve roots, and mild stretching of the left S1 nerve root.

10.A joint examination was conducted on Mr. Ho by the medical experts, Dr. Lee and Dr. Lau, on 8 May 2009. X-rays of the lumbar spine were taken on the day of the joint assessment. At the time of the assessment, Mr. Ho still complained of low back pain, which increases on sitting, on standing, walking fast, walking upstairs or exertion such as lifting weights. He claimed that there was still numbness on the left side and in the left leg down to the dorsum of the foot.

11.Upon examination of the lumbar spine, Dr. Lee and Dr. Lau found that there was no scar, no swelling and no deformity. There was no muscle spasm. The active ranges of motion of the lumbar spine were reported to be normal, with only a slight reduction in active flexion. There was no significant muscle wasting. The straight leg raising was 90 degrees on the right, and 70 degrees on the left. The reflexes of the lower limbs were normal, and the power of the lower limbs was reported to be full.

12.According to the experts’ examination of the x-rays, there was no bony abnormality, nor arthritic change. The MRI taken in December 2006 had shown broad-based disc prolapses, with both the L4/5 and L5/S1 discs showing degeneration. The degeneration nerve roots were noted to be encroached in the lateral recesses at both levels, with the L5/S1 disc showing more bulging on the right postero-lateral aspect with encroachment also onto the exiting right L5 nerve root.

13.The experts’ diagnosis is that Mr. Ho suffered from a sprained back injury. Dr. Lee and Dr. Lau agree that Mr. Ho had mostly recovered from his initial injuries, and that 3 years after the accident, the only remaining problem was his lumbar spine. Dr. Lee pointed out that neurological examination including the lower limb reflexes and powers were all normal, and the sitting straight leg raising was full. Dr. Lee accepted that although the MRI showed broad-based prolapses at L4/5 and L5/S1 levels with nerve encroachment, the right side prolapse and nerve compression were more significant than the left. According to Dr. Lee, Mr. Ho's complaint of numbness in his left lower limb is therefore classified as a non-verifiable radicular complaint.

14.According to Dr. Lau, there were no objective physical signs apparent from the examination to explain Mr. Ho 's complaints of residual back pain and left lower limb pain. Dr. Lau also pointed out that the positive simulation tests results displayed at the assessment showed that there was some element of symptom magnification. He considered that Mr. Ho's condition should be better than as claimed.

15.Having considered all the evidence, including the views of Dr. Lee and Dr. Lau; the SSY physiotherapy report; the MRI report dated 28 December 2006 and Dr. Cheng's comment on the unexplained predominant left-sided symptoms compared with the more significant right-sided nerve-root impingement; the lack of objective evidence to support Mr. Ho’s persistent complaint of low back pain; and the unverifiable complaint of numbness in the left lower limb, I am not satisfied that the numbness in Mr. Ho’s left lower limb and his complaint relating to the left lower lumbar paraspinal muscle are related to or caused by the accident. When Mr. Ho consulted Dr. Loong in December 2006 in respect of his left-sided low back pain and numbness of the left lower limbs, Dr. Loong already found that Mr. Ho's lumbar spine was normal, with only slight limitation of left straight leg raising and slightly reduced sensation over the left leg and foot. The MRI report in December 2006 highlights the fact that the left-sided signs of pain are inconsistent with the MRI results.

16.Nor am I satisfied that Mr. Ho's complaint relating to the severity of his low back pain is as serious as he alleges.

Award

17.Mr. Ho was aged 41 at the time of the accident in 2005. He was given a total of 74 days of sick leave. I do not consider that his injuries are very serious. According to the report of Mr. Wong of SSY and the joint report of Dr. Lee and Dr. Lau, it appears that Mr. Ho had recovered well from his injuries after physiotherapy treatment. The lack of muscle spasm and muscle wasting is objective evidence that Mr. Ho's back is in a good and recovered state.

18.I agree that Mr. Ho’s injuries are more compatible with the more minor injuries suffered by the plaintiffs in Tam Yuen Hoi v. Chan Muk Sing HCPI 983 of 2001, unreported 1 August 2003; Tam Fu Yip Fip v. Sincere Engineering & Trading Co. Ltd. HCPI 473 of 2006, unreported 6 June 2007; Chong Pui Kin v. Leung Ka Fai Tony HCPI 991 of 2005, unreported 5 June 2007; and Sulakhan Singh v. Federal Securities Ltd. DCPI 231 of 2007, unreported 6 June 2008. A reasonable award for PSLA in respect of Mr. Ho’s injuries is $80,000.

19.Mr. Ho was paid in full by his employer during his sick leave. Accordingly, he has not suffered any loss of earnings, and no award will be made under this head.

20.Both Dr. Lee and Dr. Lau consider that Mr. Ho is fit to resume his pre-accident job as an office clerk. I am not satisfied, on the evidence, that there is any substantial or real risk that Mr. Ho would lose his job as a result of his disability. I am not prepared to make any award for loss of earning capacity.

21.In relation to Mr. Ho 's claim for special damages, I am prepared to allow the sum of $11,000 for the loss of the motorcycle, after a deduction of the scrap value of $500. I allow the sum of $1,200 in respect of the claim for the damaged clothing. In respect of tonic food and Chinese medicine, I will only allow a sum of $2,000. As for the claim for Chinese medicine and drug charges, I consider the sum of $12,163 to be unreasonably high. I am not satisfied that all the Chinese medicine, the effect of which is unclear, is reasonably necessary, and will only allow a reasonable sum of $2,000. In respect of the expenses incurred for the massage therapy, I am not satisfied that the therapy Mr. Ho received from May to September 2007 is required as a result of the injuries caused by the accident, and disallow the sum of $2,250 incurred for the 10 sessions. Mr. Ho's claim of $20,000 in relation to his wife's services has been withdrawn. In respect of traveling expenses, I will allow a reasonable amount of $1,500. The rest of the expenses are allowed.

22.Accordingly, the total award is as follows :

PSLA                    $80,000.00

Special damages    $52,894.00

Total:                     $132,894.00

Conclusion

23.I award to Mr. Ho the total sum of $132,894.00, with interest on general damages at 2% p.a. from the date of service of the Writ to the date of this assessment, and interest on special damages at half judgment rate from the date of the accident to the date of this assessment. I will make an order nisi that Mr. Tong is to pay to Mr. Ho the costs of the action, to be taxed if not agreed, with certificate for Counsel.

Mr. Walker Sham, instructed by Messrs. Chan & Tsu, for the Plaintiff

Mr. Patrick Lim, instructed by Messrs. Krishnan & Tsang, for the Defendant