Choi Sun Hong v. China Harbour Enterprise Constructions Ltd and Another

HCPI 1084/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1084 OF 2007

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BETWEEN

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Coram : Before Master Marlene Ng in Court

Date of Hearing   :   23-24 September and 18 November 2009

Date of Handing Down Judgment   :   20 January 2010

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ASSESSMENT OF DAMAGES

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I. BACKGROUND

1.On 11 March 2005, the Plaintiff was a rear seat passenger in a van driven by the 2^nd Defendant as employee and agent of the 1^st Defendant when the van collided with a taxi (“Accident”). On 28 December 2007, the Plaintiff commenced the present proceedings to claim damages for personal injuries suffered as a result of the Accident. On 8 May 2008, judgment on liability was entered for damages to be assessed (“Judgment”).

II. EVIDENCE BEFORE THE COURT

2.The Plaintiff was the only witness who gave viva voce evidence. In assessing his credibility, I bear in mind the intrinsic value of his evidence in light of the documents, expert medical evidence and inferences based on inherent probabilities and/or undisputed facts. On balance I accept his evidence on the core matters. Although Ms Loh, counsel for the 1^st and 2^nd Defendants, criticised him for exaggerating his injuries and disabilities, he was essentially unshaken in cross-examination.

3.The parties also adduced orthopaedic and psychiatric expert evidence from Dr Lau Hoi Kuen (“Dr Lau”) and Dr K Singer (“Dr Singer”) for the Plaintiff and Dr Lam Kwong Chin (“Dr Lam”) and Dr Peter Ho (“Dr Ho”) for the 1^st and 2^nd Defendants (collectively, “Ortho Experts” and “Psy Experts”).

III. ACCIDENT

4.I accept the Plaintiff’s evidence that just before the Accident the van cut into the opposite lane to overtake a stationary taxi, but a large goods vehicle was approaching on the opposite lane, so the van swerved back and in doing so hit the stationary taxi.

5.During cross-examination, Ms Loh raised query over various accounts of the Accident recorded in the medical reports of the Plaintiff to the effect that the “[van] stopped suddenly at a slow speed” [1] and that the Plaintiff “was the passenger of a van which suddenly braked” [2]. But in her final submissions Ms Loh confirmed that the 1^st and 2^nd Defendants would not dispute the Plaintiff’s account of the Accident in the above paragraph, which account is consistent with (a) Dr Lau’s report dated 15 September 2006 and the Ortho Experts’ 1^st joint report dated 7 July 2008 (“1^st Ortho JR”) which noted that the van failed to stop in time and collided with the rear of a stationary taxi and (b) the Statement of Claim which averred that the van was being driven along the road when it hit a taxi (which averment was deemed to be admitted by virtue of the Judgment).

6.The Psy Experts’ joint report dated 17 July 2007 (“Psy JR”) noted that the Plaintiff had great fear of losing his life just before the collision. I find this unsurprising since the van escaped a head on collision with a large goods vehicle only to ram into a stationary taxi in the next moment. The photographs taken after the Accident also corroborate the Plaintiff’s claim that the trauma was more than mild. As a result of the collision, the Plaintiff was thrown forward by the foldable back of the rear seat against the iron railings separating the front and rear seats, and then jerked backward against the back of the rear seat.

7.After the Accident, the Plaintiff’s face and neck felt numb, and he felt dizzy and painful. His left upper lip was bleeding, and there were abrasions on his arms and shins. He gave evidence that he passed out briefly at the scene, and was later taken to Tseung Kwan O Hospital (“TKOH”). There was no record of loss of consciousness in the medical report by the accident and emergency department (“AED”) of TKOH [3], but the Plaintiff could not recall whether he was asked about such matter. At that time he was bleeding, in pain and under acute stress, so I accept he might not have been aware that he should report any brief loss of consciousness. But there is subsequent record in medical treatment and/or expert reports that he had lost consciousness for a short time, ie for about 10 seconds [4]. Dr Singer considered such records unreliable since “time allows elaboration and distortion”, but on balance I accept the Plaintiff had a transient loss of consciousness. It does not seem to be particularly advantageous for the Plaintiff to embellish his case by claiming such a brief loss of consciousness especially before he was aware of the opinion of the Psy Experts (see paragraphs 68-69 below) when he raised such matter.

IV. INJURIES AND TREATMENT

(a)  TKOH’s AED

8.At TKOH’s AED, the Plaintiff complained of neck pain, and the provisional diagnosis was neck injury [3]. Examination revealed tenderness of neck and shins as well as abrasions of left upper lip and both shins, but there was no fracture or neurological sign. The Plaintiff was admitted to TKOH’s orthopaedic ward. I accept he was quite stressed and confused at that time, so he probably did not mention he also suffered back injury.

(b)  TKOH’s department of orthopaedics and traumatology (“DOT”)

9.X-ray of the Plaintiff’s neck showed loss of lordosis. According to a medical report by TKOH’s DOT dated 13 September 2005 [1], physical examination revealed tenderness of the neck at bilateral trapezius, but the back was non-tender, upper/lower limb power was full, and reflex/sensation was normal. But according to a later medical report by TKOH’s DOT dated 18 May 2006 [2], the Plaintiff complained of neck and mild back pain but there was no symptom over upper/lower limbs. Physical examination on admission to TKOH’s DOT showed tenderness over lower neck and bilateral paraspinal area. Neck movement was limited by pain, but there was no limb neurology deficit.

10.The diagnosis was neck sprain with soft tissue injury. The Plaintiff was put on neck collar and treated conservatively with analgesics and physiotherapy. His “neck and back pain” subsided with full range of movement and he was discharged on 14 March 2005 with neck collar and analgesics. The Plaintiff said the neck collar was taken off about 2 months after discharge from TKOH.

(c)  After discharge from TKOH

11.Given that the Plaintiff was still on analgesics and neck collar, on balance I accept that after discharge from TKOH his neck, shoulders and back were still painful. The Plaintiff told the Psy Experts he had pain all over with neck pain being the most severe, and in the first few days after discharge he even needed help with bathing. In my view, the Plaintiff’s injuries could not be regarded as trivial.

(d)  Bonesetter treatment

12.According to the available receipts, the Plaintiff attended a bonesetter 9 times between 15 and 30 March 2005 for neck/cervical spinal pain as well as back muscle and back pain (“頸脊錐背肌肉痛”, “頸脊錐背肌肉背痛”, “背痛錐痛”, “背痛頸痛”, “背痛頸位痛” and “脊錐痛背痛”). The fact that he sought such treatment and the frequency thereof serve to confirm he had both neck and back pain as a result of the Accident from an early stage. Further, Dr Lau in his report dated 15 September 2006 noted that the Plaintiff attended the Chinese Medical Clinic of Kwong Wah Hospital about 30 times for treatment of his neck and back pain, but it is unclear when he received such treatment.

(e)  Physiotherapy treatment at TKOH

13.During follow up on 31 March 2005 at TKOH’s orthopaedic outpatient clinic, the Plaintiff was referred for urgent physiotherapy for neck pain. The referral letter noted his complaint of neck pain radiating down the back with no upper/lower limb neurology. At the initial assessment on 15 April 2005 by TKOH’s physiotherapy department (“PD”), the Plaintiff complained of neck and upper back pain (6/10) with numbness and stretching pain along bilateral forearms, which were aggravated by movement and which disturbed his sleep. Neck flexion was full with stretching, but neck extension was only ¼ range of movement with neck pain. Physical examination revealed stiffness over bilateral neck at C2-C7 levels with spasm along bilateral neck muscle, tenderness along right side of neck at C2-C7 levels, and muscle spasm over upper thoracic region along the scapula. The Plaintiff received 11 sessions of physiotherapy treatment between April and June 2005, but progress was slow. [5]

(f)  Orthopaedic follow up at TKOH

14.The Plaintiff was followed up by TKOH’s DOT on 14 April 2005 and on 5, 9 and 19 May 2005, and thereafter on regular periodic basis. On 5 May 2005, he was referred for psychiatric treatment. TKOH’s patient progress report dated 18 May 2005 noted that in the previous week the Plaintiff complained of low back pain for which he attended Yan Chai Hospital’s (“YCH’s”) AED. This sits well with the Psy JR which noted that the Plaintiff had low back pain starting 1 month post-Accident and half a month later the pain worsened to the extent that he had to attend YCH’s AED. At the orthopaedic follow up on 19 May 2005, the Plaintiff was referred for physiotherapy treatment for his back pain. In my view, the Plaintiff did suffer and was documented to suffer back pain, and I will return to the issue of causation below.

(g)  Forearm pain

15.The Psy JR recorded that the Plaintiff complained of pain in forearms which started at the time of the Accident and developed with prolonged physiotherapy. Although Dr Lam stated in the 1^st Ortho JR that the Plaintiff’s complaint of pain as well as pins and needles sensation extending from the shoulders down the upper limbs to involve all fingers was not reported by any of his treating doctors, Ms Loh conceded (and it was in fact noted in the 1^st Ortho JR itself) that the physiotherapy report of TKOH’s PD dated 16 May 2006 did record that the Plaintiff already complained of numbness and stretching pain along bilateral forearm at the initial assessment on 15 April 2005 (see paragraph 13 above) and there was similar upper limbs numbness at the further assessment on 23 May 2005 (see paragraph 20 below). In my view, the Plaintiff did suffer bilateral upper limb numbness and pain, and I will return to the issue of causation below.

(h)  Psychiatric treatment

16.The Plaintiff said he started to feel a bit tremulous about 2 weeks after discharge from hospitalisation. He appeared dull during physiotherapy sessions and was encouraged by the physiotherapist to seek referral for psychiatric consultation. On 5 May 2005, he was referred to West Kowloon Psychiatric Centre (“WKPC”) for urgent psychiatric appointment (see paragraph 14 above). The referral letter stated that the Plaintiff still had multiple somatic complaints notwithstanding normal physical examination and x-ray findings. The Plaintiff started to receive psychiatric treatment as from 11 May 2005 (ie 2 months after the Accident).

17.The Psy JR recorded that the Plaintiff had onset of severe anxiety “[four] to five months post-Accident” and that “[starting] three to four months post-accident he became depressed because of the fear”. Such anxiety and fear included (a) fear of riding in minibus associated with severe palpitations and sweating hands such that the Plaintiff had to get off the minibus in mid-journey on 1 occasion, (b) fear of vans on the street causing tremulous feeling and/or palpitations such that he avoided them by taking another route, and (c) fear of television reports of similar accidents such that he would switch off the television.

18.Ms Loh argued that the timing of the onset of the mental symptoms as noted in the Psy JR suggested there was no genuine basis for the Plaintiff to seek psychiatric treatment 2 months after the Accident. I disagree. Careful reading of the Psy JR reveals that the Plaintiff did tell the Psy Experts he had breathlessness since 2 months post-Accident. The referral letter of 5 May 2005 also mentioned the presence of multiple somatic complaints including being afraid of getting into van/minibus and having insomnia/panic attacks. On balance, I accept that the Plaintiff started to experience some mental symptoms shortly after the Accident, but his condition worsened in 3-4 or 4-5 months (see 1^st Ortho JR which noted he was seen by clinical psychologist since 27 June 2005). His psychiatric symptoms included insomnia, chest tightness, pain and general tiredness, van/minibus phobia, nightmares and flashbacks of the Accident, anxiety and fear, and loss of interest in activities. He also developed low mood, especially when he was advised that the physical investigation results were normal. [6]

19.The medical report of Dr Ronnie Pao (“Dr Pao”) of WKPC dated 20 May 2006 stated that the Plaintiff was diagnosed to suffer from post-traumatic stress disorder (“PTSD”) and that he was treated with anti-depressants with regular psychiatric follow up. The Psy JR noted that with treatment the Plaintiff felt better but still remained depressed/ distressed. He attempted suicide 6 months after the Accident by going to the roof but eventually changed his mind.

(i)  Further physiotherapy treatment at TKOH

20.At the physiotherapy assessment on 23 May 2005, the Plaintiff complained of low back pain (5/10) with similar neck pain and upper limb numbness. Physical examination revealed generalised soreness over the back and tenderness over central L4/5 level. There was full range of movement for neck flexion, but neck extension was ⅔ range of movement with neck pain. Active ranges of motion for trunk flexion were from middle finger to distal shin level with pain and for trunk extension was full range of movement with pain. Straight leg raising in supine position was 80˚ (right) and 70˚ (left), and sitting and walking tolerance were 30 and 45 minutes respectively.

21.At the last physiotherapy session at TKOH on 13 June 2005, the Plaintiff claimed there was 10-20% overall improvement with neck and low back pain (5/10), but neck flexion/extension was the same and active range of motion of trunk flexion/extension was the same with decrease in intensity of pain. Progress was slow [7]. Since the long journey from his Tsuen Wan home to TKOH aggravated his pain, the Plaintiff requested and was transferred to YCH for further physiotherapy. YCH was informed that (a) the Plaintiff was then being followed up at TKOH for multiple muscle pain, (b) he had received physiotherapy with partial improvement, and (c) he had PTSD symptoms that were being followed up by psychiatrist [8].

(j)  Physiotherapy treatment at YCH

22.The Plaintiff received 25 sessions of physiotherapy treatment at YCH from July to December 2005 for neck and back pain. At the 1^st attendance on 15 July 2005, the Plaintiff’s neck/back movements were slightly decreased in all directions, and pain was elicited at end range of movements. There was also localised tenderness at lower cervical and lumbar spine, but no neurological deficit was detected. There was slow progress with improving range and subjective improvement [9]. At the last visit on 8 December 2005, the Plaintiff still complained of persistent moderate neck/back pain, but neck/trunk movements were full with moderate end range pain in forward/backward directions.

(k)  Occupational therapy treatment

23.The Plaintiff also received occupational therapy treatment at the United Christian Hospital (“UCH”) between December 2005 and April 2006.

(l)  Status as at April 2006

24.Notwithstanding various outpatient psychiatric, psychological, physiotherapy and occupational therapy treatments, up till April 2006 progress was slow. According to the Psy JR, there would be improvement for a few hours with physiotherapy, but the Plaintiff still had persistent neck and back pain as well as numbness in both arms. Yet repeat examination showed no limb sensory or motor deficit, and repeat x-rays of cervical/lumbar spine showed no abnormality. Dr Pao’s report dated 30 May 2006 stated that the dosage of the Plaintiff’s psychiatric medication was increased, but the Plaintiff did not have psychotic symptoms. By March 2006, the Plaintiff’s mood was better but sleep was still poor, and he bought off-the-counter drugs against medical advice.

(m)  Treatment at the Pain Clinic (“Pain Clinic”) of Princess Margaret Hospital (“PMH”)

25.On 27 April 2006, the Plaintiff was referred to the Pain Clinic of PMH’s department of anaesthesia for management of his neck and back pain. The referral letter stated the Plaintiff had (a) central type of non-specific neck and back pain and central sensitisation to peripheral non-noxious stimulus even though x-ray was clearly non-suggestive of any structural pathology, and (b) extensive rehabilitation the benefit of which had plateaued off [10].

26.The Plaintiff first attended the Pain Clinic on 24 June 2006. It was noted (a) he had neck pain right after the Accident and since then developed chronic pain which was constant, squeezing and pulling in nature and which would be worse upon walking or carrying things or at cold temperature or at night, and (b) the pain had spread to both shoulders and upper back.

27.During physical examination, tenderness was elicited on palpation of back muscle. Neck range of movement was normal apart from slightly reduced extension limited by pain otherwise upper limb neurology was grossly normal. The diagnosis was chronic neck, shoulder and back pain, which was mostly myofascial in nature. The Plaintiff was prescribed medication for pain control, and advised to swim and self-exercise. He was subsequently followed up 4 times between August 2006 and June 2007.

28.Following such advice, the Plaintiff did more exercises, yet his neck and back remained persistently painful. At his last follow up at the Pain Clinic on 13 June 2007, his pain score was similar and his pain control was fair, but his motivation for exercise was good and he could remain active. His mood also improved over time. According to the Psy JR dated 17 July 2007, his neck and back pain became less severe about 4-5 months ago, and his mental condition improved 50% with treatment in the past 7-8 months.

(n)  Sick leave

29.The Plaintiff was given sick leave from 11 March 2005 to 28 April 2007 (ie about 25.5 months). Although most of his sick leave certificates were for neck sprain/injury or neck pain and there was only 1 for back pain [11], the Plaintiff disagreed that orthopaedic follow up during his sick leave was mainly for his neck condition. After all, he had received courses of physiotherapy treatment for both neck pain and back pain, and was later referred to PMH’s Pain Clinic and the Pain Management Centre (“PMC”) of Alice Ho Miu Ling Nethersole Hospital (“AHMLNH”) for persistent neck and back pain or whole spine pain (see paragraph below).

(o)  Pain programme at AHMLNH

30.As mentioned above, the Plaintiff was referred to the pain programme of AHMLNH’s department of anaesthesiology and operating services for persistent whole spine pain. He was first seen at AHMLNH’s PMC and by the clinical psychologist (pain) on 31^st July 2007. He claimed the pain was associated with fatigue and dizziness, and might spread to other areas including both elbows and forearms. He swam daily, practised yoga weekly and helped in doing simple housework. Physical examination showed generalised muscle tenderness, but the neurological system was unremarkable. It was also noted that the Plaintiff suffered from PTSD, and was on psychiatric medication with ongoing features of depressed mood, marked catastrophisation and poor sense of self efficacy.

31.In September 2007, the Plaintiff had private MRI which showed cervical stenosis at C5/6 level with mild cord compression but no cord edema. Degenerative C3/4-C5/6 intervertebral discs showed bulging with indented thecal sac and narrowed spinal canal at their respective levels. Bulging L4/5 intervetebral disc had slightly indented thecal sac, but no associated spinal and neural foraminal stenosis. The Plaintiff was unaware of his spinal degeneration prior to the Accident, and claimed (which I accept) he was asymptomatic notwithstanding the physical or manual nature of his work.

32.Surgery was offered but declined by the Plaintiff due to surgical risks. Analgesics were relatively contra-indicated as they might make him dizzy. The PMC discussed with the Plaintiff about learning to cope with the pain, but he preferred his own way of rehabilitation and expected to return to work quickly. The PMC was unable to engage him in a more constructive rehabilitation and discharged him in April 2008.

(p)  Psychological treatment

33.Starting from 21 February 2008, the Plaintiff was also regularly followed up by the PMC’s clinical psychologist. The Plaintiff was puzzled by the origins of his persistent neck and back pain (6-8/10), and he showed distressed emotions including anxiety, depression and post-traumatic fear. Subsequently, there was some improvement in accepting the chronicity of the pain. The Plaintiff participated in some retraining courses (see paragraphs 116-117 below) and planned to find suitable work. Continued pain acceptance and coping work as well as mood management were offered.

(q)  Further physiotherapy treatment

34.The Plaintiff gave evidence that he did not receive any further physiotherapy treatment after April 2006. But according to the 1^st Ortho JR, he told the Ortho Experts he had another course of outpatient physiotherapy from late 2007 to March 2008. This is in fact supported by TKOH’s rehabilitation services referral form dated 2 October 2007 which stated that notwithstanding previous referral for outpatient physiotherapy and AHMLNH’s pain programme, services were required for reinforcing specific treatment/exercise to relieve cervical axial pain.

(r)  Current medical treatments

35.As at the time of the assessment hearing, the Plaintiff was still being followed up at TKOH’s DOT once every 3 months and at WKPC once every half year (reduced from once every 4 months in 2008). The Plaintiff believed his neck and back condition had improved, but according to the 1^st Ortho JR he would still take prescribed analgesics for pain relief. The psychiatrist was not prepared to reduce the dosage of the Plaintiff’s psychiatric medication as yet, and advised him to take medication regularly, do more exercises, and not to think too much.

V. ISSUES RELATING TO THE PLAINTIFF’S INJURIES AND DISABILITIES

36.Mr Lim, counsel for the Plaintiff, and Ms Loh agreed that the Plaintiff’s injuries and disabilities raised the following issues:

(a)  whether the Plaintiff suffered neck as well as low back injury as a result of the Accident;

(b)  whether such injuries were soft tissue injuries caused by the Accident and/or whether they triggered symptoms due to degenerative changes;

(c)  whether the Plaintiff suffered PTSD and adjustment disorder (“AD”) as a result of the Accident or whether he merely had anxiety and depressive symptoms with an element of exaggeration;

(d)  if the Plaintiff had PTSD and/or AD, whether they were in partial remission;

(e)  whether there was any correlation between the severity of the trauma/stressors from the Accident and the severity of the effect of such disorders and/or psychiatric symptoms;

(f)  whether the Plaintiff still suffered residual symptoms/ disabilities to his neck and/or low back, and if so, their degree of severity;

(g)  if such symptoms/disabilities were triggered by degenerative changes, whether there should be any apportionment or reduction of the damages claimed on orthopaedic aspect.

VI.  PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

37.The Plaintiff was 24 years old at the time of the Accident. Prior to the Accident, he was cheerful, keen on work, active, sociable and in good health. He regularly swam and played basketball and badminton. There was no history suggestive of psychoses/neuroses or vulnerability to the same.

38.After the Accident, the Plaintiff would so simple housework and cooking but not heavy tasks. He no longer played basketball or badminton, but could swim for an hour for which there was good pain relief. With loss of self esteem, the Plaintiff avoided socialising, had no desire, became depressed and was uncomfortable seeing other people enjoying themselves. He could not understand why he became hot-tempered, irritable and intolerant and why he had no pleasure in activities. His relationship with his mother was not as good as it was pre-Accident because he would become irritable and would scold her. His frequent quarrels with his girlfriend (who had cohabited with him for many years) led to their eventual separation.

(a)  Neck and back

39.According to the expert medical reports, (a) there was preservation of cervical and lordotic curvature with mild limitation in the range of movement of the cervical spine and satisfactory range of movement of the lumbar spine (1^st Ortho JR), (b) the Plaintiff complained he was still suffering from persistent posterior neck pain that radiated down the whole back to the buttocks (1^st Ortho JR and Psy JR), (c) the intensity of the neck pain was 3/10 when not exercising but would increase to 6-7/10 after exercising and would last for 2-3 days before improving (Psy JR), (d) the neck/back pain would increase by lifting heavier objects, exposure to the cold, and sitting and walking for more than 30 and 45 minutes respectively (1^st Ortho JR) and (e) the Plaintiff could not carry weight of more than 40lbs (Psy JR).

40.From the above, there is no doubt that the Plaintiff suffered whiplash injury to the soft tissues of his neck causing neck pain. On balance I also accept the Plaintiff’s evidence and Dr Lau’s opinion in his report dated 20 November 2008 and in the 1^st Ortho JR that the Plaintiff suffered mild contusion injury to the soft tissues of his low back, but it was milder in nature than the neck injury.

41.But Dr Lam in the 1^st Ortho JR opined that the Plaintiff’s low back pain was not a direct result of the Accident but of later onset for which the Plaintiff was referred for physiotherapy treatment on 19 May 2005. I need not deal with this suggestion because Ms Loh in her final submissions confirmed it was not the case of the 1^st and 2^nd Defendants that there were no soft tissue injuries to the Plaintiff’s neck and back, but it was their case that such injuries also triggered symptoms from the degenerative changes to his spine. But in any event and on balance, I find that the Plaintiff’s low back injury is borne out by the following analysis.

42.First of all, low back injury is consistent with the circumstances of the Accident. The Plaintiff did not wear a seat belt, so his body was not secured to the back of the rear seat. Upon the impact of the collision between the van and the taxi, the Plaintiff’s body was thrown forward against the iron railings and then jerked backward against the back of the rear seat. I accept this resulted in more serious whiplash injury to the neck and milder contusion to the low back [12].

43.Secondly, although Dr Lam in coming to his view relied on inter alia the medical report by Dr Chan Suet Ching (TKOH’s DOT) dated 13 September 2005 [1] which stated that the Plaintiff’s back was non-tender on physical examination and that his neck/back pain subsided upon discharge from hospitalisation, Dr Lee Yuen Lun (TKOH’s DOT) by his medical report dated 18 May 2006 (covering the same period of hospitalisation as the above-mentioned report of Dr Chan) [2] noted that the Plaintiff complained of neck pain as well as “mild back pain” and that physical examination elicited tenderness over “both sides paraspinal area” (see paragraph 9 above). So, in the Ortho Experts’ 2^nd joint report dated 25 February 2009 (“2nd Ortho JR”), Dr Lam was constrained to acknowledge the Plaintiff’s complaint of mild back pain, and he added that “[any] injury to the low back thus sustained would be a minimal one” (my emphasis) since the back was non-tender at the initial examination. So Dr Lam was not truly excluding low back injury despite his earlier stance in the 1^st Ortho JR (see paragraph 41 above).

44.Thirdly, in the 2 weeks immediately following discharge from TKOH the Plaintiff sought bonesetter treatment not only for neck pain but also for back muscle pain and back pain (see paragraph 12 above). The referral letter dated 31 March 2005 from TKOH’s DOT noted that the Plaintiff’s neck pain “radiated down the back” (see paragraph 13 above) [13]. In my view, there is early record of the Plaintiff suffering from mild back pain even though the major focus at that time was on the more severe and persistent neck pain and stiffness.

45.Fourthly, although the initial physiotherapy assessment on 15 April 2005 revealed spasm of the neck and upper thoracic muscles (see paragraph 13 above), I accept the Plaintiff’s evidence that at about this time there was onset of more significant back pain which led to (a) his attendance at YCH’s AED about 1½ months post-Accident (see paragraph 14 above) and (b) eventual referral for physiotherapy treatment for low back pain on 19 May 2005 (see paragraphs 14 and 20 above). This is consistent with Dr Lau’s opinion in his report dated 20 November 2008 that “the pain in [the Plaintiff’s] low back gradually worsened with more severe muscle spasm set in”.

46.The worsening of the Plaintiff’s back pain in/about April/ May 2005 was also about the time when he developed psychiatric symptoms for which he was referred for psychiatric treatment (see paragraph 16 above). He fell into a low mood because inter alia no anatomical cause was identified for his pain and stiffness, and he was diagnosed to suffer from PTSD. Against such background, I prefer Dr Lau’s opinion that the Plaintiff’s psychiatric disorder probably affected his reaction to the neck/back pain and led to the positive Waddell’s signs he displayed during examination by the Ortho Experts for the 1^st Ortho JR (ie vertex compression increased neck pain, and shoulder compression, pelvic rotation and gentle elevation of the upper limbs increased back pain) [14].

47.Dr Lam in the 1^st Ortho JR suggested there was significant exaggeration on the part of the Plaintiff. He opined that with such mild neck sprain and the absence of supportive MRI or x-ray evidence of structural involvement, the persistence and diffuse nature of the present complaints of tenderness over the whole length of the spine, the muscles on both sides of the neck (more on the right side) and both paraspinal muscles could not be supported.

48.I accept the Ortho Experts’ common opinion that the absence of muscle spasm over the Plaintiff’s neck/back and the preservation of cervical/lumbar lordotic curvature showed that his neck and back injury had much improved and was quite stable [15]. But I do not agree that the Plaintiff has exaggerated his neck and back condition. Even though he maintained he still had neck and back pain, he also fairly acknowledged improvement of his condition:

(a)  Notwithstanding slow progress in physiotherapy, the Plaintiff reported subjective improvements [16].

(b)  In the Psy JR, the Plaintiff reported that his neck and back pain became less severe about 4-5 months ago, and his mental condition improved 50% with treatment in the last 7-8 months (see paragraph 28 above).

(c)  The Plaintiff actively followed medical advice, took medication as prescribed and did not refuse any treatment save for surgery which the Ortho Experts agreed was not indicated.  He swam regularly to tone his body, practised yoga and followed a diligent exercise regime for pain relief. It was noted in various medical reports that he had good motivation to rehabilitation.

(d)  The available receipts show that during the period from February 2005 to November 2007 the Plaintiff regularly purchased medicated plasters, voltaren gel and 正骨水, which were all off-the-counter aids for pain relief.

(e)  The Plaintiff agreed there was temporary relief from neck and back pain after swimming, application of heat pack or medicated plaster, rubbing ointment or taking oral analgesics [17].

(f)  The Plaintiff did not attempt to blame his condition entirely on the Accident, but all along expressed puzzlement over the chronicity of his neck and back pain in the absence of significant anatomical cause.  When he gave evidence, the Plaintiff frankly admitted he did not know whether his bilateral forearm and right wrist numbness/pain was caused by the Accident or not.

(g)  As seen below, the Plaintiff’s attempts to resume his pre-Accident work after the expiry of his sick leave, his subsequent retraining efforts, and the securing of his current employment at Hung Fook Tong all speak of an accident victim who was anxious to recover and return to work.

In my view, the above matters contradict Ms Loh’s suggestion of disproportionate exaggeration on the part of the Plaintiff for compensation purpose.

49.Ms Loh argued that the Plaintiff’s complaint of non-specific and diffuse neck and back pain was unsupported by objective findings such as muscle wasting, remarkable neurology or structural pathology, which therefore cast doubt on the genuineness of his pain reaction and consequent functional/work impairment, and which also challenged the correlation between PTSD and the Plaintiff’s exaggerated response and inorganic signs. She also asked me to view the medical reports from PMH and AHMLNH with scepticism because they only recorded the Plaintiff’s subjective complaints without mentioning any objective investigations and/or findings.

50.It is trite that pain is a personal experience that cannot always be objectively measured like confirmation of a broken limb by x-ray or of an infection by laboratory test. Individuals experience and express pain differently, and as will be seen below, the Plaintiff developed psychiatric reaction to the Accident (ie the relevant traumatic event) and related stressor(s) with the result that the pain did not disappear upon improvement of the underlying injury.

51.Further, the medical reports from PMH and AHMLNH were treatment and not forensic medical reports. I do not agree that the absence of full particulars of objective findings/investigations in such summational reports necessarily undermine the clinical diagnosis of myofascial or chronic neck, shoulder and back pain by the Pain Clinic when viewed in light of the totality of the evidence. I accept that the Plaintiff suffered and still suffers from lingering pain that was/is (a) associated with psychiatric reaction to the Accident and related stressor(s) and (b) not fully responsive to medication and/or other pain management technique [18]. Notwithstanding the absence of objective findings or anatomical cause, I am not persuaded that the Plaintiff was feigning, exaggerating or dramatising his symptoms. In my view, his post-Accident medical treatment history and his efforts on rehabilitation and return to employment go a long way to support the validity of his chronic neck and back pain and the mild limitation of range of movement of his cervical spine.

52.I accept the MRI scans of the Plaintiff’s cervical and lumbar spine on 19 September 2007 show only degenerative changes to the C3-4, C4-5, C5-6 and L4-5 discs due to ageing and past exposure to stress with no evidence of past trauma or injury as a result of the Accident. On balance, I find (and the Ortho Experts in the 2^nd Ortho JR accepted the possibility) that such pre-existing degenerative changes were asymptomatic at the time of the Accident. In my view, the Plaintiff suffered soft tissue injuries to the neck and low back as a result of the Accident, which injuries also triggered symptoms from the pre-existing degenerative changes (and both Ortho Experts also accepted such possibility). I do not agree with Dr Lau’s suggestion in the 2^nd Ortho JR that the residues were solely related to the soft tissue injuries. Indeed, Dr Lau in his report dated 20 November 2008 conceded that the Accident should also be regarded as the triggering cause for the symptoms related to the pre-existing degenerative changes.

53.I further accept Dr Lam’s opinion in the 2^nd Ortho JR and in his report dated 10 October 2009 that (a) since the Plaintiff was noted to have degenerative changes of his cervical and lumbar spine at a relatively young age it would be natural for such degeneration to progress, and (b) if he had started to develop such degenerative changes during the 5 years prior to the MRI scans on 19 September 2007, there was a strong possibility that even without the Accident he would have neck and back pain during his working life and that his spinal condition would have worsened and the symptoms would have progressed to the present state 10 years after the MRI scans had he continued to do strenuous work.

54.I do not agree with Mr Lim that Dr Lam’s opinion meant that without the Accident the “symptoms would appear” at around September 2017 or that “[the Plaintiff’s] back symptoms [would] surface without accident in 2017”. It is plain Dr Lam opined that even without the Accident, if the Plaintiff continued with manual labour, his pre-existing degeneration would worsen and progress (ie he would have neck and back pain during his working life) until it reached the present state by September 2017.

(b)  Upper limbs

55.There have been various records of upper limb symptoms of the Plaintiff: (a) intermittent upper limb pain and numbness with hot feeling of the limb when in pain, which was mainly felt in the first half hour just out of bed or upon carrying heavy object for 5 minutes [19]; (b) the Plaintiff felt pain and numbness in the forearms especially after exertion (Psy JR), and (c) the Plaintiff complained of pins and needles sensation from the shoulders down the upper limbs to involve all fingers, which symptoms were intermittent with hot feeling of the limb when in pain and of 20% decrease in touch sensation circumferentially over distal half of right forearm, but no motor deficit was detected (1^st Ortho JR).

56.In the 1^st Ortho JR, Dr Lam opined that such subjective upper limb complaints were “probably mentioned at the assessment to impress the assessors that [the Plaintiff] was in distress”, and probably were not the direct result of the Accident. It appears that Dr Lam came to this view because he thought such complaints had not been reported by the treating doctors. But there is actually documentary record of numbness and stretching bilateral forearm pain by the physiotherapist as early as on 15 April 2005 (see paragraphs 13 and 20 above), which medical history is consistent with the Plaintiff’s evidence that he still had mild stretching feeling in his forearms and mild numbness of the last 3 fingers on his left hand whenever he went into the refrigeration room in the course of his current employment with Hung Fook Tong.

57.The Plaintiff gave evidence that the physiotherapist told him there was no physical cure for his forearm numbness and pain, and his treating doctor(s) told him there was no structural/neurological pathology, bleeding or swelling and the condition would improve if he did more exercises. Since even the medical personnel could not find a cause or cure (except for prescribing ointment and analgesics), the Plaintiff bought and applied medicated adhesive patches, heat packs, hot water bottle and 正骨水 to his upper limbs in addition to his neck (where the pain was most severe) and his back.

58.On balance I accept the Plaintiff’s evidence that he had pins and needles sensation and/or numbness in bilateral forearms but, as he admitted, such sensation/numbness was mild. I am not convinced there was deliberate exaggeration in light of (a) the insignificance of such mild disabilities, (b) his knowledge there were no objective findings to support such symptoms and (c) the early report of such symptoms about 1 month after the Accident.

59.But what caused these mild residues? The MRI scans excluded any compression on the spinal cord or nerve roots (ie pre-existing degeneration). Dr Lau opined they were “most likely related to the bizarre upper limb symptoms subsequent to the whiplash injury”. I bear in mind that in the Psy JR Dr Ho opined that “[in] general anxiety, depression or psychological conflicts could aggravate pain or other physical symptoms, and there could be a psychological component of [the Plaintiff’s] pain and other physical symptoms” (my emphasis). I find there was/is a psychogenic element to the Plaintiff’s complaints of bilateral forearm numbness/pain that is linked to the Accident, which is not inconsistent with Dr Lau’s opinion as aforesaid and indeed also akin to Dr Lam’s view that it was an expression of distress.

(c)  Right wrist

60.The Plaintiff also complained of pain over right wrist associated with cold weather or carrying 5-10lbs in weight by the right hand, which pain would increase by movement of the wrist (eg doing gym exercises or swimming for more than an hour) [20].

61.Physical examination by the Ortho Experts showed tenderness over dorsum of the distal radius, but no swelling or deformity. The range of movement was within normal limits, and there was pain at the extremes of dorsiflexion and volarflexion.

62.The Plaintiff fairly admitted his right wrist pain was not severe, and he did not know whether such pain was caused by the Accident or not. I am not convinced that the Plaintiff’s right wrist pain on exertion was caused by the Accident since there is no clear documentation of such complaint after the Accident and both Ortho Experts agreed that such pain was unlikely to be related to the Accident. In my view, it is nothing more than usual aches and pains by a right handed person after exertion for which no compensation is payable.

(d)  Lower limbs

63.According to the Plaintiff’s witness statement, there were frequent cramps in his calves and numbness in his legs. But the 1^st Ortho JR recorded straight leg raising test of 80˚ on both sides with no sensory or motor deficit and no significant neurological deficit. I am not persuaded that any lower limb complaint was caused by the Accident.

(e)  Psychiatric complaints

64.The Psy Experts found the Plaintiff to be mildly depressed with impairment in abstract thinking, but he was in good contact, alert, attentive, cooperative, orientated and without delusion/hallucination.

65.The Plaintiff claimed his stressors were (a) pain, (b) severe anxiety in coping with tasks, and (c) poor grasp in communication (ie he felt he was slow and had poor concentration), and his psychiatric reaction appeared to be clinically significant and to impair occupational/social functioning.

66.The Psy Experts agreed that the Plaintiff’s psychiatric symptoms (according to Dr Singer) or psychiatric disorders (according to Dr Ho) were in apparent response to stressors from the Accident and the subsequent physical symptoms (eg neck, back and abdominal pains), physical disabilities (eg impaired ambulation and inability to cope with heavy manual tasks) and fear of inability to work and earn.

67.The Psy Experts also accepted that (a) PTSD was suggested by exposure to the Accident and by complaints such as persistent re-experiencing of the traumatic event (eg fear of riding in minibus, nightmares about the Accident and distress on seeing reports of accidents), avoidance of stimuli associated with the Accident and numbing of general responsiveness (eg avoidance of thoughts and conversations about the Accident, lack of warm feelings, sense of detachment from others and loss of interest in activities) and symptoms suggestive of increased arousal (eg impaired sleep and concentration, irritability, palpitation and sweating of hands), and (b) AD with mixed anxiety and depressed mood was suggested by anxiety, depressive complaints in response to the stressors, feelings of worthlessness, retardation, abdominal pains and loose stools when tense, and loss of energy.

68.But Dr Singer opined that the Plaintiff merely had anxiety and depressive symptoms not amounting to PTSD or AD with anxiety and depressed mood or any psychiatric disorder. He said there was exaggeration shown by (a) mildness of the trauma or stressors from the Accident which was inconsistent with the severity of symptoms of PTSD or AD, and (b) lack of psychological causation to account for the “maintenance” of such symptoms for more than 2 years. Dr Singer took the view that the trauma was mild because there were (i) no loss of consciousness and (ii) paucity of physical lesion resulting from the Accident, so the stressors from the Accident and its aftermath should have ceased to operate after a few months.

69.I prefer Dr Ho’s opinion that the Plaintiff had been suffering from PTSD (related to the stresses at the time of the Accident) and AD with mixed anxiety and depression (related to the stresses both at the time of the Accident and in its aftermath), but both conditions were in partial remission. As Dr Ho explained, PTSD is about psychological rather than physical trauma, and I have found that the trauma of the Accident to the Plaintiff was more than mild (see paragraphs 4-7 above).

70.My findings of fact above are not helpful for Dr Singer’s factual premise. I have found that the Plaintiff feared for his life over the potential head on collision between the van and the large goods vehicle which was avoided by the van abruptly swerving out of the way only to collide with the taxi. On balance I accept that the Plaintiff (whose account of the Accident and of his injuries, treatment and disabilities does not lack credibility) felt a marked threat to his physical integrity. After the Accident, he was in pain and bleeding from his face and limbs, had transient loss of consciousness, and was hospitalised for 4 days followed by extensive outpatient follow up, physiotherapy and occupational therapy. His injuries could not be said to be trivial. In my view, these stresses were of sufficient magnitude to precipitate PTSD and/or AD.

71.But ultimately the issue is not so much as the correct diagnostic label but whether the Plaintiff suffered any residual psychiatric conditions/symptoms caused by stresses from the Accident and its aftermath.

72.In the Psy JR, Dr Ho said it was known that the course of PTSD could be variable and some patients would have more long-lasting symptoms. He noted the Plaintiff frankly reported that many of his PTSD symptoms had improved: (a) the Plaintiff would take the minibus if he had to even though he would have palpitations though less severe than before, (b) he had less anxiety than before on seeing reports of accidents on television and would not avoid them but would try to ignore them, (c) he was less afraid of strangers but still had paranoid phenomena once or twice a week, (d) his irritability had improved and he no longer had suicidal ideas, and (e) when depressed he would try to be physically active and his mood would improve with exercise. On balance I accept Dr Ho’s opinion that the Plaintiff did suffer from PTSD and AD, that such conditions were in partial remission and that he still had some mild residual symptoms. I do not agree with Ms Loh’s submissions that Dr Ho just based his diagnosis on what she described as the dated and unreliable medical report of Dr Pao dated 20 May 2006.

73.Dr Singer opined that the psychotic phenomena (eg the Plaintiff’s fear that strangers would harm him, that people talked about and gazed at him and that he was poisoned in fast food shop, which complaints if genuine would amount to paranoid delusion and visual hallucination) did not fit the diagnosis of PTSD or AD. On the other hand, Dr Ho doubted whether the Plaintiff’s paranoid feelings could be considered as delusions for he did not report he had acted under the influence of these paranoid feelings. Dr Ho believed that people encountering accidents out of the blue might worry about having another misadventure, and such feelings of insecurity might enlarge into vague feelings of paranoia. The presentation of psychiatric symptoms might not always follow a typical pattern, and ideas of reference and delusional ideas were not uncommon in persons having depression of lesser severity.

74.Again, I prefer Dr Ho’s opinion. Like Dr Ho, I do not think the Plaintiff exaggerated his disabilities by feigning these symptoms. First, the Plaintiff did not exaggerate his pain/weakness to be so severe that he was not able to cope with daily living or self-care. Had the Plaintiff intended to exaggerate his physical disabilities, he would not have said he could carry up to 40lbs in weight. Secondly, he reported he could go to places using public transport. Thirdly, he reported to the Psy Experts that he was attending retraining courses and felt better for it. Plainly he wanted to return to work. Fourthly, he said his palpitations and flashbacks were less severe than before. Fifthly, he told the Psy Experts that his subjective paranoid feelings had become infrequent and he was not so afraid anymore. If he had wanted to exaggerate his disabilities, surely he would not have reported such marked improvements. Sixthly, he did not give bizarre answers during the cognitive tests with a view to emphasise his cognitive disabilities, and he was cooperative with investigations and treatments.

75.In coming to the above view, I bear in mind Dr Singer’s caution that treating doctors in a clinical setting might not necessarily take a critical approach to the Plaintiff’s complaints as medical experts would in a forensic setting. But the treating psychiatrist not only diagnosed PTSD, he also prescribed anti-depressants and in the course of treatment increased the dosage of psychiatric medication. Indeed, even as at the time of the assessment hearing, the psychiatrist declined to reduce the dosage.

76.I do not accept Dr Singer’s views that the Plaintiff’s fear, anxiety and depressive complaints would improve to the extent that he would be left with little or no psychiatric symptoms and/or no impairment of social/occupational functioning few months after completion of the present litigation. I agree with Dr Ho that the interaction between the Plaintiff’s chronic neck and back pain and his psychiatric condition contributed to the lingering effect of his disabilities. But the Plaintiff did report some improvement of his symptoms and he has also returned to work, so I agree with the Psy Experts that the psychiatric prognosis is favourable.

77.Even though Ms Loh criticised Dr Pao’s report dated 20 May 2006 for failing to identify objective findings or examination results, she drew my attention to such report which stated that no permanent psychiatric disability was expected if the Plaintiff complied with his treatment plan (see paragraph 71 above). There is no suggestion that the Plaintiff did not comply with the psychiatric treatment plan, but a few short months after Dr Pao’s report the Psy Experts opined that the Plaintiff still had residual psychiatric conditions/symptoms that required further psychiatric treatment. In the circumstances, I cannot safely rely on Dr Pao’s projection.

(f)  PSLA award

78.Dr Lau opined that the neck and back injury with residual pain amounted to 6% whole person impairment. Dr Lam’s assessment was 2% whole person impairment in the absence of verification of the Plaintiff’s complaints by physical means but giving him the benefit of doubt that he might still have some residual neck pain from the Accident. For psychiatric impairment, Dr Singer put the Plaintiff at the mild end of “Class 2: Mild Impairment – Impairment levels are compatible with most useful functioning” with 1% whole person impairment. Dr Ho’s assessment was 3% whole person impairment.

79.I bear in mind the inherent difficulty of giving accurate numerical value of the level of orthopaedic and/or psychiatric disability and the potential variability of psychiatric symptoms. But it is broadly clear from Dr Lau’s and Dr Ho’s assessments that the Plaintiff suffered mild orthopaedic and psychiatric residues. Since I am unable to accept the factual premise underlying Dr Singer’s opinion and Dr Lam’s suggestion of exaggeration on the part of the Plaintiff, I am also unable to accept their assessments.

80.I have carefully considered the authorities cited by Mr Lim [21] and by Ms Loh [22], but each case is different and must be determined on its own facts. In assessing PSLA, I bear in mind the above discussions as well as the discussion below on sick leave and on the Plaintiff’s difficulty in finding suitable work. I note that, unlike the plaintiffs in some of the authorities cited by counsel, the Plaintiff did not materially exaggerate his injuries or disabilities. In my view, absent the pre-existing degeneration of the spine, an appropriate award for PSLA in the present case is HK$280,000.00.

81.But in light of Dr Lam’s views described in paragraph 53 above, which I accept, the Plaintiff conceded that the PSLA award should be discounted by 25% for orthopaedic aspect in view of the pre-existing degeneration. Ms Loh submitted that the more appropriate deduction should be 30-40%. After considering the authorities cited by Mr Lim and Ms Loh [23] and applying the principles in the context of the present factual matrix, I am of the view that the 30% discount suggested by Ms Loh is reasonable and appropriate. The Plaintiff is relatively young but there are already degenerative changes to his cervical and lumbar spine. I accept Dr Lam’s views that even without the Accident the Plaintiff would have neck and back pain in the course of his working life with continued physical labour. In short, the degeneration was a time-bomb waiting to go off. Hence, I assess the award for PSLA to be HK$280,000.00 x 70% = HK$196,000.00.

VII. PRE-ACCIDENT EMPLOYMENT

(a)  Pre-Accident work

82.The Plaintiff was born in Mainland China and came to settle in Hong Kong in 1992. When he was 17 years old, he started to work as a part-time restaurant waiter and decoration/construction site labourer. He completed Form 3 when he was 19 years old, but according to the Psy JR he was below average scholastically. The Plaintiff took a 1-year vocational course in carpentry and was awarded a craft certificate in wood trade. The Construction Industry Training Authority granted him an honour award in coarse and fine wood crafts, and certified him for the joiner intermediate trade test.

83.In early 2002, after apprenticing for a year, the Plaintiff became a master or “sifu” in interior decoration carpentry work. Although the Plaintiff as a casual worker was in principle dependent on referral work from other “sifu”, he normally worked for the same boss on a number of projects for several months at a time before moving on to work for another boss in the same manner.

84.From January to December 2004 the Plaintiff worked as carpentry “sifu” for Teamwork Decoration Design Engineering (“Teamwork”) at HK$700.00/day (paid in cash). The Plaintiff claimed that since Teamwork constantly had work for him, he usually worked 6 days per week or an average of 26 days per month. He explained that during 2002-2003 he sometimes worked 23-24 days per month, but in 2004 he achieved on average 26 working days per month. He said that he sometimes had to work on Sundays and that during the economic downturn experienced “sifu” (ie those who were 40-50 years old and earning HK$850.00 per day) would have difficulty in finding work because the bosses usually employed junior “sifu” like him who only earned HK$700.00 per day.

85.An undated certificate by Teamwork stated that the Plaintiff “在本公司任木工技工職務，在工作期間能獨立處理大小木器裝置，每天日薪$700圓正，每月最多工作26天……” Such certificate showed that the Plaintiff worked a maximum of 26 days per month, but I am unable to read into such certificate the implication suggested by Ms Loh that the Plaintiff usually worked less than 26 days per month.

86.The Plaintiff stopped working for Teamwork in December 2004 due to drop in available work, and was thereafter unemployed for 2-3 months. He tried to find other carpentry work but could not as it was traditionally quiet just before and after Chinese New Year. Usually contractors would hasten to finish interior decoration projects before Chinese New Year, so there would be little or no work for about 10-14 days but work would pick up again in March to April.

87.On 8 March 2005, through the introduction of a ganger, the Plaintiff began to work for the 1^st Defendant as carpenter 代工 which in interior decoration parlance meant daily wage worker at HK$550.00/day. The 1^st Defendant mainly did construction site work (such as installing temporary hoarding) with some interior decoration work (such as affixing wooden wall panels at Maclehose Holiday Village, putting up wooden partitioning, cutting/transporting/dismantling materials/boards etc). Had there been work from other bosses with whom the Plaintiff was familiar, he would have left the 1^st Defendant (whom he did not know well) and gone to work for them.

88.Ms Loh submitted that the Plaintiff would not have worked more than 20 days per month as a carpentry “sifu” prior to the Accident. I bear in mind that (a) casual carpentry “sifu” was only paid on the days they worked, (b) the Plaintiff would sometimes work on Sundays, (c) the casual carpentry trade would essentially shut down for 10-14 days over Chinese New Year, (d) casual carpentry “sifu” would have no work and no income for varying lengths of time whilst between jobs/employers. However, I note that although the Plaintiff was out of work for 2-3 months before he worked for the 1^st Defendant, he was employed by Teamwork for a full year before that. Taking into account the totality of the evidence, I am of the view that the Plaintiff’s average pre-Accident working days per month as a casual carpentry “sifu” was about 23 days. Thus, the Plaintiff’s monthly earnings just before the Accident would be HK$550.00 x 23 days = HK$12,650.00.

(b)  Nature of work of carpentry “sifu”

89.I accept that the work of a carpentry “sifu” required strenuous physical labour which includes carrying or helping to carry heavy materials, eg wooden cabinets or doors. Teamwork’s wooden cabinets were made of whole cabinet frame with removable doors/shelves, so a wooden cabinet could weigh like 1½ bags of cement. A standard main entrance solid wood door would weigh more than 60kgs.

90.Wooden cabinets/doors would be transported by lorry to the relevant building, and the boss would direct workers carrying out interior decoration work at the relevant premises, including the carpentry “sifu”, to move them from the lorry to the lift lobby, take them by lift to the relevant floor, and carry them into the relevant premises for installation. If the wooden cabinets/doors could not fit inside the lift, they would have to be carried all the way from the lorry to the relevant premises upstairs. It would be best to have 4 persons carry a wooden cabinet frame, but sometimes the Plaintiff had to make do with just 1 other worker. To lessen the load the doors and shelves would be removed, and sometimes the boss would help carry these lighter items whilst the carpentry “sifu” and other worker(s) (if any) would carry the wooden cabinet frame (being 2/3 of the total weight) upstairs. Likewise, it would be better to have 2 persons transport all the main entrance and room doors of the relevant premises, but sometimes the carpentry “sifu” would have to carry the doors on his own one at a time on his back.

91.Once the wooden materials/furniture were carried to the relevant premises, the Plaintiff as carpentry “sifu” would install them and/or carry out other fine and coarse woodwork. The Plaintiff’s boss at Teamwork (“Teamwork Boss”), who was an experienced carpentry “sifu” himelf, would make drawings for other “sifu” to carry out carpentry work, but he would also work as a carpentry “sifu” on interior decoration projects to save the cost of engaging another “sifu”.

92.Prior to the Accident, the Plaintiff intended to improve his English language skills and other knowledge in order to read plans/sketches and to make design drawings with a view to do less strenuous physical work in future. He had hoped to become like Teamwork Boss and be able to deal with all matters of woodwork and design. But I accept he was not thinking of ceasing carpentry work or physical labour altogether. First, the Plaintiff’s understanding was that comprehensive design work was usually done in an architect’s office rather than by carpentry “sifu” at the site. Secondly, reading and making drawings were not easy tasks for him who was below average scholastically. Thirdly, it had always been his ambition to be a carpenter, which was why he attended the vocational course in carpentry after he finished Form 3. Fourthly, before the Accident he did not regard carpentry work as physically strenuous. Fifthly, although he received vocational training and served apprenticeship in carpentry work and had some learning about wood materials by accompanying Teamwork Boss to purchase materials, he still had a lot to learn about carpentry before he would become truly experienced.

VIII.ISSUES ON LOSS OF EARNINGS AND LOSS OF EARNING CAPACITY

93.Mr Lim submitted (and Ms Loh did not disagree) that the Plaintiff’s claims for loss of earnings and loss of earning capacity raised the following issues:

(a)  what was the reasonable period of sick leave;

(b)  whether the Plaintiff was able to return to work as a carpenter after reasonable sick leave or whether his residual symptoms prevented him from doing so;

(c)  if the Plaintiff were unable to return to work as a carpenter, whether he had mitigated loss by taking the job at Hung Fook Tong;

(d)  if the court allowed the Plaintiff’s claim for loss of earnings, whether any discount should be applied to the multiplier by reason of the pre-existing degenerative changes;

(e)  whether the Plaintiff suffered any disadvantage in the open market, and if so whether any discount should be made on account of the pre-existing degenerative changes.

IX.  SICK LEAVE

94.As discussed above, the Plaintiff was granted sick leave from 11 March 2005 to 28 April 2007 (ie about 25.5 months).

95.Dr Lau in his report dated 15 September 2006 opined that the appropriate sick leave for the Plaintiff’s neck and back injury should be 1 year. In his report dated 15 November 2007 and in the 1^st Ortho JR, Dr Lau considered that sick leave up to 28 April 2007 would be appropriate after “[taking] into consideration of the psychiatric aspect of [the Plaintiff’s] injuries”. Since Dr Lau is an orthopaedist, I am unable to accept his opinion on appropriate sick leave in relation to the Plaintiff’s psychiatric disabilities.

96.In the 1^st Ortho JR, Dr Lam opined that sick leave up to end of physiotherapy treatment in June 2005 should be adequate for the Plaintiff to resume work given the minor nature of the initial injury and the progress as reported, and thereafter the Plaintiff was affected by his multiple somatic complaints rather than the orthopaedic injury.

97.Dr Singer was of the view that sick leave for psychiatric aspect was 1 month, and Dr Ho opined that from a psychiatric perspective the Plaintiff would likely need sick leave of about 4 months.

98.Ms Loh suggested that in light of the above expert medical opinion, reasonable sick leave period for which the Plaintiff would be entitled to full loss of earnings would be 6-9 months, which period already took into account appropriate time for the Plaintiff to look for work, and thereafter he should have been able to resume his pre-Accident work with no loss of earnings. On the other hand, Mr Lim submitted that the Plaintiff should be entitled to full loss of earnings for the whole sick leave period of 25.5 months.

99.It is important to bear in mind that pre-trial loss of earnings is ascertained by reference to the period during which the Plaintiff was prevented by his injuries and disabilities from returning to work, so what has to be ascertained and identified is the length of that period. This is a fact-finding exercise, and the sick leave certificates and medical expert opinion on sick leave are no more than pieces of relevant evidence that have to be evaluated in light of all the available evidence before the court (see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, 215-216).

100.I am unable to accept the opinion on sick leave by either Dr Lau (up to March 2006) or Dr Lam (up to June 2005). I also note that the Plaintiff’s evidence (which I accept) and my findings above do not support the underlying factual premise for the opinion of Dr Lam (up to June 2005) and Dr Singer (1 month) on sick leave, which I find to be unduly conservative.

101.As regards Dr Lau’s and Dr Ho’s opinion, even up to March 2006 the Plaintiff was just finishing off occupational therapy treatment at UCH (see paragraph 23 above) and about to receive treatment at PMH’s Pain Clinic for his chronic neck and back pain (see paragraph 25 above). Indeed, treatment under AHMLNH’s pain programme only commenced much later on 31 July 2007 (see paragraph 30 above). It is plain that the Plaintiff was under active treatment for his chronic neck and back pain in 2006 and 2007. The Ortho Experts both agreed that the treatment was appropriate, and the Psy Experts did not suggest that the treatment was unnecessary or inappropriate.

102.I note that in assessing the sick leave period even Dr Lam recognised that the Plaintiff was affected by his psychiatric complaints (see paragraph 96 above). Hence, it is inappropriate to consider sick leave for orthopaedic aspect or for psychiatric aspect in isolation of each other. Having considered the totality of the evidence, I accept the sick leave of about 25.5 months under the medical certificates issued by the treating doctors. But even if I am wrong and therapeutically-speaking the Plaintiff’s sick leave should expire as suggested by the Ortho and/or Psy Experts, it does not follow (as will be evident below) that the Plaintiff would have been able to return to his pre-Accident work or any work at all 6-9 months after the Accident.

X. POST-ACCIDENT WORK

103.In the 1^st Ortho JR, the Ortho Experts agreed that orthopaedic-wise the Plaintiff should be able to resume his pre-injury job as a “decoration worker”. Dr Lau opined that the Plaintiff would continue to suffer significant decrease in efficiency at work due to residual pain in his neck and back. Dr Ho also opined that whilst the Plaintiff might be considered as being capable of returning to his previous job from a psychiatric viewpoint, his work efficiency and general earning capacity might be mildly affected by the psychiatric symptoms such as PTSD symptoms, depressive mood, anxiety, reduced energy, irritability and impairment in interest or concentration.

104.Dr Lam was of the view that there was magnification of symptoms which were unsupported by more objective findings, and in the Psy JR Dr Singer opined that the Plaintiff could return to his pre-Accident work if his physical condition allowed or he could have worked as an unskilled manual worker, sales person and security guard. Dr Singer went on to say that the earliest date the Plaintiff could return to work was 1 month post-Accident.

105.As explained above, assessing whether the Plaintiff could have returned to his pre-Accident job is a fact finding exercise in which medical evidence forms only part of the relevant considerations. Other considerations include the Plaintiff’s post-Accident conduct, his attempts to find work, and the nature and demands of his pre-Accident work.

106.I accept that post-Accident the Plaintiff was anxious to return to work. Indeed, his feeling of worthlessness partly arose from his inability to work or find work or to cope with heavy manual labour. I accept that after the Accident he read newspapers to look for work but could not find any suitable job. In my view, given the Plaintiff’s below average scholastic background, his lack of proficiency in English and the physical/manual nature of his previous work experience, he would have difficulty in securing any clerical position. However, given his persistent neck and back pain, I accept that he could not and was not confident that he could handle the job of a restaurant waiter let alone his pre-Accident work as a carpentry “sifu” that required strenuous physical labour.

107.Given my findings above as to the Plaintiff’s injuries and treatment, I am satisfied it is reasonable for him to return to work upon the expiry of his sick leave. In the medical certificates dated 28 December 2006 and 27 February 2007 issued by TKOH’s DOT, it was remarked that the Plaintiff was encouraged to seek employment as he was ready to re-integrate back to work. This sits well with the Psy JR dated 17 July 2007 which noted that the Plaintiff’s neck and back pain became less severe 4-5 months ago.

108.The Plaintiff approached Teamwork Boss towards the end of February 2007 for a chance to resume carpentry work. The Plaintiff told Teamwork Boss that he had the Accident and wanted to see if he could resume carpentry work. Teamwork Boss agreed and the Plaintiff started to work as carpentry “sifu” for Teamwork on 23 April 2007 at a daily wage of HK$700.00.

109.Teamwork Boss assigned the Plaintiff to affix the ceiling coving, which required working atop a ladder with one hand holding a length of coving and the other using, say, 液體釘槍 and/or electric screwdriver to affix the same. Whilst the Plaintiff had no difficulty with such task prior to the Accident, tilting his head upwards to look at the ceiling over an extended period in order to carry out such work after the Accident caused muscle tightening and neck pain.

110.Teamwork Boss also assigned the Plaintiff to carry a solid wood door, but he could not do so as a result of neck, shoulder and back pain. So Teamwork Boss assigned him to lay wooden flooring. Although the Plaintiff could lift and carry each floor board, he could not lift or carry the whole lot of floor boards, and he also had difficulty crouching down to lay the wooden flooring.

111.The Plaintiff was unable to continue after 3 days, and had to take 2 weeks’ rest. When he tried to resume work on 10 May 2007 he could not cope. After 2 days Teamwork Boss told him not to work anymore, and he was paid HK$3,500.00 in cash for 5 days’ work.

112.On balance, I accept that the Plaintiff could not return to his pre-Accident job as interior decoration carpentry “sifu” after the Accident by reason of his injuries and disabilities. He was trained in coarse and fine woodwork, which work included making wooden wall panelling and wooden tables. But after the Accident the Plaintiff could only lift 30kgs in weight, and I accept his evidence that few tasks in carpentry work involved weight below 30kgs.

113.Ms Loh suggested that the Plaintiff could have offered to do lighter carpentry work for lower pay. However, there is no evidence that such kind of job was available in the market. The Plaintiff gave evidence, which I accept, that when he worked for Teamwork and for the 1^st Defendant he had not seen any carpentry “sifu” who did not have to carry heavy items, and he had not come across any carpentry worker handling lighter work for lower pay. I agree with Mr Lim that in practical terms it is improbable that any boss will hire a carpentry “sifu” who can only do light work. I am not persuaded that Ms Loh’s suggestion is a viable option.

114.Although Dr Lau and Dr Lam said that orthopaedic-wise the Plaintiff could resume his pre-injury job as “decoration worker”, Dr Lau opined that he would “continue to suffer a significant decrease in efficiency due to residual pain in his neck and back”. Plainly there is recognition that the Plaintiff would not be able to handle the more physically demanding aspects of his pre-Accident work. I therefore agree with Mr Lim that the Plaintiff did not fail to mitigate his loss by not returning to his pre-Accident work [24].

115.After May 2007, the Plaintiff looked for lighter work, eg security guard at a hotel and funeral parlour, and salesman for photography, mobile telephone and sportswear shops. He was not confident he could handle such work, but he still plucked up his courage to apply. Although his neck and back pain would not be readily apparent to the potential employers, he was unable to secure any such job. The Plaintiff explained that at that time he was quite sick-looking as a result of his psychiatric disabilities. He also attended recruitment fairs organised by the Labour Department and a few job interviews, but was not employed due to his poor English standard.

116.The Plaintiff was worried he could not resume carpentry work and tried to equip himself for other less physically demanding work. Since 2007 he started to attend a 2-year electrician evening training course ran by the Hong Kong Institute of Vocational Education with a view to become an electrical worker. But he noted from newspaper advertisements that the threshold employment requirements for related work in building management/repair/maintenance included registration as a Grade A electrical worker and Form 5 education standard which he did not have. He also made enquiries on how to apply for registration as a Grade A electrical worker, and was informed that 5 years’ practical experience in electrical wiring installation in electrical room was a prerequisite. But the Plaintiff could not handle the physical demands of such installation training, so notwithstanding his efforts in reading the relevant course, he was unable to acquire the practical experience needed to apply for registration as an electrical worker.

117.In order to improve his marketability, the Plaintiff also took short courses on English phonetics (grades 1 and 2) in May and August 2007 and on “extension of interpersonal network” in November 2007 held by Spare-time Study Centre. He completed the customer service training course in October 2007 and half-day Chang-jie Chinese input training course in December 2007 under the Employees’ Retraining Scheme organised by Christian Action. In January 2008, he completed basic computer, Chinese input method, document filing, excel and internet courses held by the Association for the Rights of Industrial Accident Victims. These courses were difficult for him due to his psychiatric and scholastic problems, but he persevered because he wanted to see if he could handle or find some clerical work.

118.In May 2008, the Plaintiff attended an interview for the post of security guard at the airport and attended a 2-week basic guarding training course. But after the first week the tutor told the Plaintiff he need not further attend the course as he would not be able to catch up. In my view, this suggests that the Plaintiff was not up to the work of a security guard.

119.On 14 July 2008, the Plaintiff secured work with Hung Fook Tong as quality control worker. At first his basic salary was HK$5,670.00 per month together with attendance and other allowances. But after passing probation, his basic salary was increased to HK$6,000.00 per month, and his attendance and other allowances were HK$300.00 and HK$800.00 respectively (ie totalling HK$7,100.00 per month). Previously there was overtime pay, but subsequently he was given time off as compensation for overtime work.

120.I am satisfied on the evidence that the Plaintiff has mitigated loss by taking reasonable steps to look for work after the Accident, but has not been successful despite such reasonable efforts until he secured his present employment with Hung Fook Tong.

XI. PRE-TRIAL LOSS OF EARNINGS

121.In the circumstances, I accept that the Plaintiff should be entitled to full loss of earnings from the date of the Accident up to 13 July 2009 and partial loss of earnings thereafter until the date of judgment herein.

122.Mr Lim conceded that HK$550.00 per day (ie the daily wage the Plaintiff earned at the time of the Accident) be adopted for assessing loss of earnings from the date of the Accident to 28 April 2007, but from the following day onwards it should be HK$700.00 per day.

123.I cannot agree with Ms Loh that HK$550.00 per day be adopted for the whole pre-trial period. It cannot be denied that as at 23 April 2007 the Plaintiff was able to find work (as carpentry “sifu” for Teamwork) at HK$700.00 per day, and there is no suggestion that Teamwork would not have continued to employ him had he been physically up to job. Thus, the Plaintiff’s pre-trial loss of earnings from the date of the Accident to the date of judgment (rounded up to half month basis) are HK$716,329.00 calculated as follows:

Period	Calculation	Amount (HK$)
11/3/05 – 22/4/07	HK$550.00/day x 23 x 25.5 months	322,575.00
23/4/07 – 13/7/08	HK$700.00/day x 23 x 14.5 months – HK$3,500.001	229,950.00
14/7/08 – 31/7/08	HK$700.00/day x 23 x 0.5 month – HK$3,374.002	4,676.00
1/8/08 – 31/8/08	HK$700.00/day x 23 x 1 month – HK$6,812.002	9.288.00
1/9/08 – 30/9/08	HK$700.00/day x 23 x 1 month – HK$6,460.002	9,640.00
1/1/08 – 31/10/08	HK$700.00/day x 23 x 1 month – HK$5,355.002	10,745.00
1/11/08 – 30/11/08	HK$700.00/day x 23 x 1 month – HK$8,145.003	7,955.00
1/12/08 – 20/1/10	(HK$700.00/day x 23 – HK$7,100.004) x 13.5 months	121,500.00
		716,329.00

¹ the Plaintiff’s earnings from Teamwork in April and May 2008

² the Plaintiff’s earnings from Hung Fook Tong during probation

³ the Plaintiff’s earnings from Hung Kong Tong in the first month after probation

⁴ the Plaintiff’s monthly earnings from Hung Fook Tong after probation

XII. FUTURE LOSS OF EARNINGS

124.Ms Loh submitted that even if the Plaintiff could not return to his pre-Accident work (as I have found), he was relatively young and given his skills and knowledge, he should have been able to engage in some skilled work and progress to achieve earnings comparable to or higher than his pre-Accident earnings.

125.However, as evident from the above analysis, the Plaintiff could not become a registered electrical worker, and in any event an electrician’s earnings at HK$650.00 per day were less than those of a carpentry “sifu”. Also the Plaintiff could not become like Teamwork Boss doing woodwork design/drawing with less physical labour because such boss would not have given up physical labour altogether and would have helped in carrying some wood materials/furniture at the site and would have stepped in to work as carpentry “sifu” in order to minimise costs and expenses for the relevant interior decoration project. There is no evidence that the Plaintiff could have managed any other job that would have produced income comparable to or higher than his pre-Accident earnings.

126.I accept the Plaintiff’s evidence that had he not been injured, he would have continued with carpentry work. But as he has suffered and will continue to suffer disabilities preventing him from returning to his pre-Accident carpentry work, he will suffer future partial loss of earnings.

127.As regards the relevant daily wage, the Plaintiff claimed that the daily wage of a carpentry “sifu” fixed by the Hong Kong Carpenters’ Association was HK$770.00, but due to the boom in interior decoration work as a result of the large number of property transactions in 2008, the shortage of carpentry “sifu” boosted the daily wage of an experienced carpentry “sifu” to not less than HK$800.00.

128.The Plaintiff also referred to the statistics by the Census and Statistics Department which showed that the average daily wages of “carpenter (formwork)” engaged in public sector construction projects as reported by main contractor in January 2009 were HK$992.00. I do not find such statistics helpful as the Plaintiff was mainly engaged in interior decoration and not construction site formwork carpentry work.

129.But Mr Lim in his final submissions relied on HK$700.00 and not any higher sum as the notional daily wage the Plaintiff could have earned but for the Accident during the post-trial period. Ms Loh submitted that the appropriate daily wage should be HK$550.00 (ie the Plaintiff’s daily wage at the time of the Accident). I disagree because in April 2007 (ie after the Accident) the Plaintiff had no difficulty in securing work as carpentry “sifu” with Teamwork at a daily wage of HK$700.00, and he could hold onto the job even when he had to take a 2-week break to rest. In the circumstances, I adopt HK$700.00 and not HK$550.00 as the notional daily wage the Plaintiff could have earned but for the Accident.

130.Mr Lim submitted that had the Plaintiff been able to work as a carpentry “sifu” in the post-trial period, he would have been able to achieve an average of 26 working days per month. In my view and for similar reasons set out in paragraphs 84-88 above, on average the Plaintiff would have worked 23 days per month.

131.There is no dispute that any award for future loss of earnings should only be assessed up to mid-September 2017 when the Plaintiff’s pre-existing degenerative changes would have reached his present state. In light of Dr Lam’s opinion that even without the Accident the Plaintiff would have neck and back pain during his working life, I find it unlikely that the Plaintiff would be entirely symptom-free until mid-September 2017. It is more likely that the Plaintiff would have some neck and back pain due to pre-existing degeneration in the post-trial period, which should be taken into account in determining the appropriate multiplier for loss of future earnings [23]. Taking into account the future years up to mid-September 2017, the limited yield from accelerated payment of future loss over the relatively short period of future years, and the likelihood of neck and back pain during the Plaintiff’s working life, I find the appropriate multiplier should be 5 and not 7 as suggested by Mr Lim.

132.Thus the award for future loss of earnings is (HK$700.00 x 23 days – HK$7,100.00) x 12 months x 5 = HK$540,000.00.

XIII.MPF CONTRIBUTIONS

133.The loss of MPF contributions in respect of the past and future loss of earnings is (HK$716,329.00 + HK$540,000.00) x 5% = HK$62,816.45.

XIV. LOSS OF EARNING CAPACITY

134.The Plaintiff claimed he would be entitled to an award under this head of claim to cover the risk of being thrown onto the labour market for the period up to September 2017. Mr Lim submitted that an award equivalent to 6 months’ current earnings rounded up to HK$50,000.00 would be appropriate.

135.Ms Loh submitted that an award under this head should not be made given the award for loss of future earnings and in the absence of any substantial or real risk that the Plaintiff would lose his current employment.

136.In Moeliker v A Reyrolle & Co. Ltd [1977] 1 WLR 132, 141, it is said as follows:

“Where a plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether there is a “substantial” risk or is it a “speculative” or “fanciful” risk … …  If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present job during the rest of his working life, no damages will be recoverable under this head.”

137.In Chan Wai Tong v Li Ping Sum [1985] HKLR 176, 183, Lord Fraser of Tullybelton said as follows:

“…… A claim for loss of future earning capacity usually arises where the claimant is in employment at the time when the claim falls to be evaluated. The claim is to cover the risk that, at some future date during the claimant’s working life, he will lose his employment and will then suffer financial loss because of his disadvantage in the labour market. The Court has to evaluate the present value of that future risk – see Moeliker v. A. Reyrolle & Co. Limited [1977] 1 WLR 132, 140 where Browne, L.J. dealt fully with this matter. Evidence is therefore required in order to prove the extent, if any, of the risk that the claimant will at some future time during his working life lose his employment. If he is, and has been for many years, in secure employment with a public authority the risk may be negligible. In other cases the degree of risk may vary almost infinitely, depending on inter alia the claimant’s age and the nature of his employment. Evidence will also be generally required in order to show how far the claimant’s earning capacity would be adversely affected by his disability. This will depend largely on the nature of his employment. Loss of an arm or a leg will have a much more serious effect upon the earning capacity of a labourer than on that of an accountant. In the present case there is no evidence at all on these matters. Accordingly their Lordships are of opinion that the sum of $108,000.00 awarded by the Court of Appeal under this head was unjustified and must be deleted.” (my emphasis)

138.Thus, in respect of the considerations to be taken into account to identify whether the risk that a plaintiff would at sometime before the end of his working life lose his current job and be thrown on the labour market is a “substantial” risk or a “speculative” or “fanciful” risk, all sorts of factors will have to be taken into account varying almost infinitely with the facts of the particular case, eg the nature and prospects of the employer’s business, the plaintiff’s age and qualifications, his length of service,the remaining length of his working life, the nature of his disabilities, and any undertaking or statement of intention by his employer as to his future employment.

139.Dr Singer in the Psy JR opined that the Plaintiff would not suffer any disability in the labour market as a result of the Accident. However, I prefer Dr Ho’s views that the Plaintiff’s work efficiency and general earning capacity might be mildly affected by the psychiatric symptoms such as PTSD symptoms, depressive mood, anxiety, reduced energy, irritability and impairment in interest or concentration.

140.Although there is no detailed evidence before this court of the Plaintiff’s scope of duties in his current job with Hung Fook Tong as quality control worker, he mentioned bilateral forearm discomfort whilst working inside the refrigeration room and he complained of lack of concentration and being easily irritated at work. I also bear in mind his education and background, the difficulties he experienced in looking for suitable work in the post-Accident period, his injuries and residual disabilities which are not inconsequential although not serious, and the vicissitudes of life. On balance I am satisfied that the Plaintiff’s injuriesleave a legacy of residual impairment and/or disability that will disadvantage him in holding onto and finding work in future. Taking into account the above matters as well as the award for loss of future earnings and the length of his service with Hung Fook Tong to date, and following Moeliker and Chan Wai-tong, I award HK$30,000.00 under this head.

XV. FUTURE MEDICAL TREATMENT

141.Orthopaedic-wise, the Ortho Experts opined that the Plaintiff’s neck and back injury had reached maximum medical improvement. Further conservative treatment would not be of benefit, and there was no indication for surgical treatment. Dr Lam opined that in the absence of physical basis for the complaints further painkillers or other orthopaedic treatment could not lessen the Plaintiff’s complaints. But since I accept that the Plaintiff still had residual neck and back pain, I prefer Dr Lau’s opinion that the Plaintiff would require analgesics and anti-inflammatory drugs on a need to basis.

142.Psychiatric-wise, Dr Ho noted that although the Plaintiff showed some improvement, remission was not complete and there were still some residual mental symptoms detected during the assessment by the Psy Experts. Both Dr Singer and Dr Ho were of the view that the Plaintiff would benefit from more intensive psychotherapy (including cognitive restructuring for negative thinking of depression, behavioural rehearsal for assertive skills and to build up self-esteem, and desensitisation for fears associated with the traumatic event).

143.Dr Singer was of the view the Plaintiff would need 4 sessions at intervals of 2 weeks at HK$1,250.00 per half-hourly session in a private setting or HK$100.00 per session in the public sector. Dr Ho provisionally estimated the psychotherapy treatment would be needed for a further period of at least 2 years but the exact duration would depend on progress. On such basis, Dr Ho roughly estimated the total cost for private psychiatric treatment to be around HK$60,000.00 whilst treatment in public sector was for HK$100.00 per session plus self-purchase of some expensive drugs. Dr Ho explained that the experience of the treating psychiatrist and the time that could be spent in assessment/treatment would be generally better in the private sector, and expensive new generation drugs with lesser side effects or better efficacy would be more readily available in the private sector.

144.Ms Loh submitted that the Plaintiff should continue with his psychiatric treatment in the public sector and a nominal provision of HK$500.00 would be sufficient for future medical expenses.

145.I note that since the Psy JR in mid-2007, the Plaintiff continued to receive psychiatric follow up at WKPC (see paragraph 35 above) and clinical psychology treatment at AHMLNH and PMH (see paragraphs 30 and 33 above). However, remission was not complete and the Plaintiff is currently still having periodic follow up at WKPC (reduced from once every 4 months in 2008 to once every half year in 2009). Although both Psy Experts opined that more intensive psychotherapy would be of benefit, there is no evidence that the Plaintiff received such treatment. In my view, it is not unreasonable for the Plaintiff to seek such psychotherapy in a private setting in light of the advantages outlined by Dr Ho, but taking into account the psychiatric and clinical psychological treatment the Plaintiff has received since mid-2007 to date, and the mildness of his current psychiatric residues, I find that a fair and reasonable award under this head (inclusive of travelling expenses for future medical treatment) would be HK$20,000.00.

XVI.SPECIAL DAMAGES

146.The 1^st and 2^nd Defendants did not dispute the Plaintiff’s claims for medical and travelling expenses at HK$19,000.00 and HK$4,200.00 respectively.

147.The Plaintiff claimed for tonic food expenses in the sum of HK$5,000.00, which were unsupported by any receipts. He explained that he did not ask for such receipts on purchase of the tonic food recommended by the bonesetter and his friends as being good for sprain injury. But there is no evidence before me (documentary or otherwise) as to what tonic food was purchased or consumed apart from a broad reference to Chinese medicine. Only a reasonable sum would be awarded where there was no evidence as to the advisability or suitability of tonic food from any doctor or herbalist or person with medical knowledge. Following Yu Ki v Chin Kit Lam [1981] HKLR 419 (see also King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54 and Mak Yiu Keung v Ho Cheung Kat [1995] 3 HKC 575)and judging from the nature of the Plaintiff’s injuries and disabilities, I allow a global sum of HK$3,000.00 for the Plaintiff’s claim for tonic food expenses.

XVII.ADVANCE PAYMENTS

148.After the Accident, the Plaintiff received advance salary payment of HK$15,070.00 from the 1^st Defendant and would give credit for the same.

XVIII.CONCLUSION

149.I summarise the Plaintiff’s loss and damages as follows:

	HK$
PSLA	196,000.00
Pre-trial loss of earnings	716,329.00
Post-trial loss of earnings	540,000.00
Loss of MPF contributions	62,816.45
Loss of earning capacity	30,000.00
Future medical expenses	20,000.00
Special damages	26,200.00
Advance payments	(15,070.00)
	HK$1,576,275.45

150.I therefore order the 1^st and 2^ndDefendantsto pay damages in the sum of HK$1,576,275.45 to the Plaintiff. Interest is payable on the award for PSLA at 2% pa from the date of the Writ of Summons to the date of judgment herein, and on pre-trial loss of income and other special damages from the date of the Accident to the date of judgment herein at half judgment rate and thereafter at judgment rate until payment.

151.There will be a costs order nisi that the costs of the assessment of damages (including all costs reserved, if any) be paid by the 1^st and 2^nd Defendants to be taxed if not agreed with certificate for counsel, and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Patrick Lim instructed by Messrs So Lung & Associates for the Plaintiff.

Ms Phillis Loh instructed by Messrs Deacons for the 1^st and 2^nd Defendants.

____________

[1] medial report by Dr Chan Suet Ching of TKOH’s DOT dated 13 September 2005

[2] medical report by Dr Lee Yuen Lun of TKOH”s DOT dated 18 May 2006

[3] medical report by Dr Yuen Cheuk Wai of TKOH’s AED dated 25 May 2006

[4] medical report by Dr Ronnie Pao of WKPC dated 20 May 2006, Dr Lau’s report dated 15 September 2006 and the Psy JR dated 17 July 2007

[5] TKOH’s patient progress report dated 18 May 2005

[6] medical report of Dr Ronnie Pao of WKPC dated 20 May 2006

[7] TKOH’s patient progress report (physiotherapy) dated 13 June 2005

[8] referral letter by Dr Ho Ka Chung, Stanley (TKOH’s DOT) to YCH’s DOT dated 16 June 2005

[9] YCH’s physiotherapy report dated 27 July 2005

[10] referral letter by Dr Lee Wai Keung, Edison (TKOH’s DOT) to the Pain Clinic dated 27 April 2006

[11] sick leave certificate issued by Dr Fan Ching (YCH’s AED) dated 9 May 2005 for back pain

[12] see Dr Lau’s similar views in his report dated 20 November 2008 and also Dr Lam’s report dated 11 December 2008 which stated that “neck injury do occur more common, and with more severe damage, if there were lack of safety measures”

[13] see also the Psy JR, the Plaintiff’s witness statement dated 24 May 2008 and the 1^st Ortho JR

[14] Dr Lau’s reports dated 15 September 2006 and 15 November 2007 and the 1^st Ortho JR

[15] the 1^st Ortho JR (supported by the MRI result in 2007 – see Dr Lau’s report dated 15 November 2007)

[16] see physiotherapy assessment results on 15 April, 23 May, 13 June, 15 July and 8 December 2005 respectively (see paragraphs 13 and 20-22 above)

[17] Dr Lau’s report dated 15 September 2006, the Plaintiff’s witness statement and the 1^st Ortho JR

[18] consistent with Dr Lau’s and Dr Ho’s views in the 1^st Ortho JR and Psy JR respectively

[19] Dr Lau’s report dated 15 September 2006

[20] Dr Lau’s report dated 15 September 2006 and the 1^st Ortho JR

[21] Mohammad Shakil v Lam Siu Kwong trading under the name of style of Tat Lee Engineering & anor HCPI610/2007, Deputy Judge Longley (unreported, 5 September 2008), Lai Hon Chu v Choi Kam Tim HCPI260/2007, Master Levy (unreported, 24 June 2008), Wong Wai Man v Yi Wo Yuen Aged Sanatorium Centre Limited HCPI77/207, Suffiad J (unreported, 15 August 2008), and Wai Mei Ling v Heep Hong Society HCPI393/2006, Suffiad J (unreported, 9 September 2008)

[22] Wong Kin Hung v Chan Wai Ming DCPI1223/2006, Deputy Judge A B bin Wahab (unreported, 16 February 2007), Ng Ting Chun v Chung Man Chun, Philip DCPI1070/2007, Deputy Judge J Ko (unreported, 19 June 2008), Wong Chi Wing v Leung Wing Keung DCPI1367/2007, H H Judge Chow (unreported, 15 August 2008), Chan Siu Youn v Ng Kam Man & ors [2000] HKLRD Year Book 399, Ahmed Masood v Chung Kau Engineering Company Limited DCPI517/2003, H H Judge Ng (unreported, 28 January 2005), Chiu Wing Sze v Chan Ying Wai & anor [2001] 2 HKLRD 92, Tsoi Wing Tak Michelle v Lau Sze Ni HCPI926/2005, Saw J (unreported, 8 June 2007), Li Ting Fai v Woo Chi Keung DCPI807/2007, Deputy Judge K Lo (unreported, 18 January 2008), Siu Siu King v Wong Chak Wing HCPI479/2003, Master Roy Yu (unreported, 14 November 2008), and Chan Chung Keung v Greenroll Limited trading as Conrad Hong Kong HCPI275/2005, Deputy Judge Carlson (unreported, 20 December 2005)

[23] Chan Kam-hoi v Dragages et Travaux Publics CACV58/1997 (unreported, 11 November 1998), Tsang Tai Fat v Kingland Concrete Drilling Company Limited HCPI566/2001, Suffiad J (unreported, 6 August 2003), Chan Kam Hong v Mohammad Riaz HCPI938/2005, Master Levy (unreported, 3 January 2008), Ng Kong v Golden Caterers Limited HCPI206/2004, Recorder Edwards Chan SC (unreported, 3 February 2005), and Lau Chiu Wah v Kwong Key Construction and Engineering Ltd & ors HCPI261/1998, Suffiad J (unreported, 28 April 2000)

[24] Khan Amar v Cheung Ying Construction Engineering Ltd & anor CACV153/2006 (unreported, 5 June 2007) and Mohammad Shakil v Lam Siu Kwong trading under the name or style of Tat Lee Engineering & anor HCPI610/2007, Deputy Judge Longley (unreported, 5 September 2008)