Sun Jianqiang v. Chan Tai Kau and Another
Read the full judgment text of HCPI 1375/2000 on BabelCite. This High Court CFI judgment.
1. This is an assessment damages for personal injury and consequential losses suffered by the Plaintiff, Mr Sun Jianqiang on 27 October 1999. The Plaintiff was employed as a cross-border coach driver by a company called Guandong Ananda Bus Company Limited. On the day in question, at about 8 p.m., the Plaintiff, who had parked his coach at the depot car-park of TransIsland Limousine Service Limited, which is situated at Shui Chong Street, Shatin, was walking towards the depot’s office when he
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HCPI 1375/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1375 OF 2000 ----------------------
---------------------- Before: Deputy High Court Judge Carlson in Court Dates of Hearing: 20–23 October 2009, 9 November 2009 Date of Judgment (Handed Down): 16 March 2010 ---------------------- J U D G M E N T ---------------------- Introduction 1.This is an assessment damages for personal injury and consequential losses suffered by the Plaintiff, Mr Sun Jianqiang on 27 October 1999. The Plaintiff was employed as a cross-border coach driver by a company called Guandong Ananda Bus Company Limited. On the day in question, at about 8 p.m., the Plaintiff, who had parked his coach at the depot car-park of TransIsland Limousine Service Limited, which is situated at Shui Chong Street, Shatin, was walking towards the depot’s office when he was knocked down by a tour bus registration no. GZ2631 owned by the 2nd Defendant and driven on its behalf by its employee, Mr Chan Tai Kau, the 1st Defendant. Liability in negligence and breach of statutory duty has been accepted by the Defendants as a result of which, on 8 March 2001, Master C B Chan entered interlocutory judgment on liability with damages to be assessed. 2.Unhappily, the Plaintiff has sustained serious injuries which I will need to examine as part of his claim for pain, suffering and loss of amenity which is substantial, as well as his claim for loss of earnings, which includes a head of damage for loss of future earnings which is continuing. 3.As will become apparent a particular feature of the Plaintiff’s case is that although a mainlander, he was employed by a mainland Hong Kong-related company earning a salary based on Hong Kong rates of pay which, as everybody knows, are considerably higher than rates of pay on the mainland. His claim for loss of earnings, both pre-trial and for future losses is put on the basis that as a result of his injuries he is unable to resume work as a driver and certainly not able to resume his pre-accident employment. This head of damage therefore is based on a comparison of what, but for the accident and his injuries, he would have earned in the 2nd defendant’s employment and what he has been able to do in terms of work on the mainland. It is this which has elevated his claim and which has served to make this a highly contentious assessment in which the Defendants have maintained that the Plaintiff is something of a malingerer who has exaggerated his physical disabilities and who has not done his reasonable best to get better paid employment since he was able to resume work, all of which has been put forward by him to try and persuade the court to award him more damages than he is fairly entitled to. In order to try and prove its case on exaggeration, the Defendants’ solicitors have had the Plaintiff secretly filmed over period of time on the mainland and whilst he has been in Hong Kong. 4.This brief summary provides a sense of how the assessment has proceeded with just about every issue of importance being sharply contested. I now propose to give separate consideration to the various heads of damage under which the Plaintiff seeks to be compensated. Pain, Suffering and Loss of Amenity 5.There is no doubt that the Plaintiff sustained an extremely serious fracture of the left femur and he also suffered a number of cracked ribs. He was admitted to the Prince of Wales Hospital where he was diagnosed with “an open fracture of the left femur” [C/1]. He was admitted on the date of the accident, the 27 October 1999, and discharged on 8 November 1999. During this period he underwent three operations. Firstly, on 28 October a closed reduction of the fracture together with an internal fixation by the insertion of a long Gamma nail to hold the fracture together. On 30 October and 4 November, he underwent excisional debridement of the wound. On 11 August 2001, a further operation was performed to remove the long Gamma nail. 6.The progress of the Plaintiff’s recovery can be obtained from a number of reports prepared by the treating doctors. For this, I gratefully take a summary prepared by Miss Cruden, who appears for him. This can be found as Appendix I to the note of her closing speech. Following his discharge, it was noted by Dr Lai, at the Prince of Wales, that the Plaintiff was able to walk with the aid of crutches but that he required strengthening and mobilisation exercises. Between 24 December 1999 and 24 January 2000, the Plaintiff attended five physiotherapy sessions at the Prince of Wales. There is a physiotherapy report dated 6 April 2000 from Mr Ng, a physiotherapist [C/5-6] which notes that at first the Plaintiff needed two elbow crutches and that the left leg was painful and that movement was limited. By the fifth session, the Plaintiff had some temporary relief from pain. The lower left leg muscles showed wasting and diminished strength. 7.On 27 March 2000, five months after the accident, the Plaintiff attended for a follow-up consultation with Dr Tsui, who was one of his surgeons, and he reported on 20 April 2000 [C/1] that the fracture had united satisfactorily and the Plaintiff was advised to walk with full weight bearing. On 25 July 2000, Dr Tsui provided a further report [C/7] noting the fractures of left lower ribs and that the high degree of muscle wasting was due to lack of exercise after the Plaintiff’s discharge from hospital. He advised him to give this his attention. On 11 October 2000, Dr Tsui provided a memorandum concerning the Plaintiff’s fractures of his third to his tenth ribs [C/15]. A chest drain was inserted, presumably to remove excess fluid, and the drain was removed the following day. 8.It is also right to observe that for the period from December 1999 to March 2001, the Plaintiff was treated at the Guangzhou Provincial People’s Hospital. The final operation, which I have already referred to, was in August 2001 at the Prince of Wales Hospital where the long Gamma nail was removed, there having been a satisfactory union of the fracture. 9.There are also agreed reports from the parties’ experts, Dr David Cheng and Dr Lam Kwong Chiu. Miss Cruden has helpfully summarised what they have reported at Appendix 2 of her note which I also gratefully adopt. 10.He was examined by Dr Cheng, on the Plaintiff’s solicitors behalf on 11 August 2000, about 10 months after the accident, who reported that he had not yet reached maximal improvement and suggested that he should continue with his physical exercises [C/14]. On examination, Dr Cheng found that the Plaintiff’s general health was good, that he walked with a limp and that he could not support himself on the left (the injured) leg alone. He could only squat down half way. There were multiple scars over the left hip and the middle of the right thigh and leg. There was limitation of motion of the left hip. 11.And so one can see that after a year, there had been some improvement but there was still work to be done to strengthen the left leg in general. 12.Dr Lam, the Defendant’s expert, provided his first report on 14 March 2001 [C/16] based on an examination on 8 March. Dr Lam noted that the Plaintiff gave up his crutches in mid-2000 and started to use a walking stick. He recorded the Plaintiff’s complaints as left hip pain, which became worst with exercise, pressure or poor weather. The left shin wound would swell in the afternoon and the left calf would get cramp about two or three times a week. He walked with a stick and could tolerate walking for half an hour. Dr Lam noted that the Plaintiff walked with a limp and used a walking stick with his right hand. There was wasting of the left thigh and calf. There was reduced range of movement of the left leg. A significant finding by Dr Lam is at para.11 of the report [C/21]. He said this:
At paragraph 13, Dr Lam noted that the Plaintiff had:
He found that the fracture had healed well and with good alignment. 13.He agreed with Dr Cheng that further improvement was to be expected and that the Gamma nail ought to be removed as it was protruding. He thought that this would reduce hip pain and improve flexibility. This was done in August 2001. Dr Lam said that patients with a well-healed femoral fracture could return to work even with strenuous manual jobs. He expected that the Plaintiff to return as a coach driver. He considered the one year sick leave ample and that this Plaintiff’s recovery was “unexpectedly long”. 14.Dr Cheng saw him again on 12 March 2001, basically at the same time as Dr Lam [C/25]. Unsurprisingly, his clinical findings were similar. He noted that the Plaintiff had made little progress since he had seen him seven months earlier. He put this down to an exercise regime that was not sufficiently demanding and the protrusion of the Gamma nail. He recommended its removal. He said that further improvement would follow with a six-month course of physiotherapy. Reports Prepared for the Trial 15.These reports were jointly prepared by Dr Lam and Dr Cheng. The first is dated 7 November 2006 and is based on an examination on 27 June 2006. On this occasion, the Plaintiff was seen to walk well with a slight limp. He could squat more than half way. He could support himself on either leg on toes and heels. There was slight stiffness over the left hip and the Plaintiff complained that the left leg was weaker. The left thigh circumference was 4cms less than the right thigh. Both doctors agreed that seven years after the accident, the Plaintiff’s condition had now stabilised and that the prognosis was fair to good. He was advised to do more exercise to increase muscle bulk and strength. The effect of the injury was described as moderate and they advised against heavy manual work. Their conclusion was that:
16.A final joint report was prepared on 6 January 2009 based on an examination on 20 November 2008. On this occasion, they viewed the surveillance VCD’s. They are both agreed that the Plaintiff has now reached maximum medical improvement. They assessed him as not suitable for heavy manual work. On this occasion, they said that:
17.The Plaintiff complained of frequent pain over the left leg and needed pain-killers. There were also more generalised aches and pains. Overall, he was found to be in good health. He was now more flexible and could squat almost fully. A soft swelling was detected in the mid-shin area of his left leg. They thought that this was caused by a gap in the deep fascia. They considered that surgical repair may help. They concluded that the effect of the injury was “moderate”. They advised regular exercise. Their conclusion on employment was as I have previously stated it. They added that if he was to drive a coach he should drive one fitted with an automatic gearbox. 18.In respect of the surveillance VCD’s the two doctors have commented as follows [C/43]:
I have watched these VCD’s on three occasions and I am in broad agreement with these views. What they show, of course, is marked improvement over the years to the final position in February 2007 where the Plaintiff is able to walk very freely over a substantial distance unaided and at a very decent pace. Even in 2001, just over two years after the accident, the Plaintiff was able to walk well although with a limp. Six years later in February 2007, he appears to have got over most, if not all, of the effects of his unpleasant injuries. 19.The present position is that the Plaintiff works in a mainland garment factory. I will consider later whether this amounts to him doing his reasonable best to maximise his earning capacity or whether he should and is capable of returning to better paid employment such as a coach driver. The Defendants’ case is that by January 2002 or at worst a few weeks after that, the Plaintiff was well enough to return to work as a coach driver after which he should have no further loss of earnings claim. Quantum for Pain, Suffering and Loss of Amenity 20.As so often happens, the parties are far apart. Miss Cruden says I should award $500,000 and Miss Lau, for the Defendants, submits that I should not go above $300,000. 21.Both counsel have referred me to a number of comparables from decided cases. It seems to me that these injuries are more comparable to cases referred to by Miss Cruden. The significant aspects are that the Plaintiff had to undergo three operations in 1999 and another in 2001. There is also the prospect of another, to deal with the problem of his shin although it is by no means certain that he will undergo such an operation. There is also a degree of cosmetic defect caused by the operation scars which are usually covered up by his trousers but this should also weigh in the assessment. He has had to live with pain, but now well reduced and judging from the fluency of his walking as shown in the final VCD, this has greatly diminished. Most of his mobility is now restored to him. As I will discuss more fully in considering his loss of earnings claims I find that he cannot return to his previous occupation as a coach driver although most other jobs, short of heavy manual labour involving serious lifting and consequent strain on his injured leg, are open to him. He has had restored most of his amenity of life in terms of what he can now do compared to what he could do before the accident. It seems to me that he has made a good, albeit slow, recovery from a very unpleasant break of his femur. I will award him $430,000 under this head of damage. Loss of Earnings 22.This has been the most contentious aspect of the case. It divides itself up into pre-trial losses, future loss of earnings and loss of earning capacity. Pre-trial Loss of Earnings 23.The first period that I need to consider is the period of sick leave. The Plaintiff has the benefit of sick leave certificates from 27 October 1999 to 3 January 2001 and then from 23 March 2001 to 1 December 2003. These are certificates given to him by his treating doctors at the Prince of Wales Hospital [D/9-112]. The Plaintiff in fact obtained employment in June 2002, during his certificated period of sick leave. The parties’ experts, Dr Chang and Dr Lam are agreed that sick leave would have been reasonable up to January 2002 and in fact the Defendants’ case is predicated on the basis of this joint opinion so that Miss Lau feels able to submit that after this date, the Plaintiff was fit to return to work as a coach driver so that he can have no loss of earnings claims beyond that date or so soon after it as I consider reasonable for him to have found work. 24.Miss Cruden relies on a case called Ho Ho Ming v Tse Po Wah & Ors, unreported, HCPI 1168/2003, a decision of Suffiad J where he was prepared to allow sick leave for a much longer period, three years instead of two years, based on sick leave certificates granted by the Plaintiff’s treating doctors in preference to the opinion of the experts who had contended for two years as the appropriate period. The judge preferred the views of the treating doctors whose opinions were contemporaneous with the Plaintiff’s medical condition as opposed to the experts who had examined him, in that case, more than two years after the date of the accident. 25.In this case, there is not very much in it. The fact is that the Plaintiff did return to employment 18 months before the expiry of his sick leave certificates. Miss Lau has rightly conceded, that even on her case, the Plaintiff must be allowed a period of time to re-enter the job market. I am content to say that it was perfectly reasonable for the Plaintiff not to have resumed work before June 2002. I will therefore award him pre-trial loss of earnings in full from the date of the accident until June 2002. This is a period of 32 months. 26.The next question is to determine what a cross-border coach driver like the defendant would have earned during this period. It is agreed that the Plaintiff was earning $10,000 a month at the time of the accident. Miss Cruden has contended for an average 5% increase per annum on that salary based on figures provided by the Defendants for two limousine drivers. It is regrettable that there are no income figures for cross-boarder coach drivers. What can be said is that there was an upward trend in salaries for the 2nd Defendant’s drivers but I am really left to do my best on sketchy information. 27.What I have decided to do is to take an overall figure which reflects the apparent rise in salaries. I propose to adopt as the average figure over this first 32 months, $12,000 per month. Accordingly, for the period from the date of the accident [27 October 1999] to the resumption of employment in June 2002, the award will be $12,000 x 32 months which is $384,000. 28.The next period to consider is from June 2002 until the date of trial [16 March 2000] which is a period of 92.5 months. 29.This requires me to consider a number of contentious issues. I must decide what the Plaintiff would have earned over this period but for the accident and deduct from it either what he has actually earned which would be a perfectly straightforward arithmetical exercise or, as the Defendants submit, what he should have earned which would be alot more than he has actually earned, which they say is as a cross-border coach driver. This would mean that he would have suffered no loss at all after June 2002. It is this latter aspect that has occupied most of the evidence. 30.It is convenient to deal with this first. Miss Lau, relying on the agreed opinions of Dr Chang and Dr Lam that the Plaintiff could return to his pre-accident employment provided he drives coaches with automatic transmission submits that he could and should have followed that course, as a result of which there will be no loss of earnings claim from, on my finding, June 2002 when he returned to employment. 31.I have had to follow the detail of, principally, the Plaintiff’s evidence as he has described his travails not only with his slow medical recovery but also mainland bureaucracy as he has been examined by government doctors to see if he was fit to have restored to him his mainland Chinese driving licence. He has put in, with impressive detail, the medical reports both at first instance, as it were, when the medical staff found him unfit to drive due to his leg injury and then on appeal by way of review when the initial findings were found to be correct and the decision confirmed. 32.I have had to rely on the mainland medical certificates in arriving at my conclusions on this very important part of the case. Miss Lau has very properly challenged the overall authenticity of the Plaintiff’s case. She has challenged the Plaintiff on whether he has managed to dupe the mainland doctors into believing that his symptoms and disabilities were as bad as their conclusions suggest so that they failed him. In this regard, Miss Lau has had a very difficult row to hoe in that she has had no evidence of her own to contradict what the Plaintiff and his documents have indicated. It also needs to be remembered that on issues that affect public safety as to a candidate’s fitness to hold a driving licence, the responsible medical authorities will be slow to approve somebody beset by a leg injury of this type. 33.It seems to me that Miss Cruden must be right in this regard. There is nothing to suggest that the medical records from the mainland are not authentic and it would have been open to the Defendants to have this investigated in order to show otherwise. I must therefore proceed on the basis that the Plaintiff has been found medically unfit by the mainland licensing authority to hold a driving licence. In this regard, he has failed the medical examination in 2006, 2008 when he took it again and in 2009. It is a big thing to suggest that somehow the mainland doctors have come to the wrong medical decision. I have no evidence to suggest that this might be so. 34.As to his Hong Kong licence, that expired and was subsequently revoked. He now has another licence from Hong Kong which permits him to only drive automatic transmission vehicles. Whilst this is so, it does not help the Plaintiff in obtaining work as a cross-border driver in circumstances where he has not got a mainland driving licence. There are also immigration and work permit difficulties in that he is a mainland resident and as such his right to be employed in Hong Kong is limited. He is unable to live and work here. He is restricted to working on the mainland. Before his accident, the 2nd Defendant had been able to employ him as a cross-border driver which required both a PRC licence and a Hong Kong licence. Now that he has no PRC licence, such employment is not open to him. 35.I can therefore only proceed to assess his damages on the basis of what he can now do in turns of employment on the mainland. The Hong Kong cross-border option is no longer available. 36.What this means therefore is that the Defendant’s case on the Plaintiff being able to drive automatic transmission coaches or limousines is out of the picture. Where the mainland authorities will not give him a licence, and this has been proved to my satisfaction, the onus is on the Defendant to make out its case on licences being available on the mainland for drivers to be issued with automatic coach or limousine driving licences. They could have provided that evidence themselves if it were available especially as they are concerned in the employment of cross-border mainland-based drivers. They have not done so and I am not prepared to speculate as to whether such licences exist and whether there are drivers from the mainland who hold such licences. The Plaintiff says that this is not an option and so, this being the state of the evidence, I need to proceed on that basis. This part of the claim will have to be assessed on what the plaintiff should reasonably have earned from June 2002 until the present, which will then have to be deducted from what he would have earned as a cross-border driver with the 2nd Defendant but for his injuries. 37.Before I pass on, I ought to make reference to the evidence of Mr Keung, who the Defendants have been obliged to call in the circumstances of the unavailability to them of Madam Leung and of Mr Leung. Unhappily, and this is no fault of Mr Keung, he is in no position to confirm what the two unavailable witnesses have spoken to in their witness statements. Mr Keung’s position in the 2nd Defendant is as a transport officer which is very much on the administrative side of running their business, such as insurance, licensing and so forth. He is in no position to give evidence about driver’s earnings. As his evidence developed it became clear that he had little knowledge of the structure of the group of companies of which the 2nd Defendant is a part, nor did he know anything really meaningful of the situation of mainland drivers nor of the terms of their employment or of their earnings. I am therefore put in the position of very largely having to, if not completely ignoring his evidence, place very little weight on it. 38.From this finding as to the Plaintiff’s permanent unemployability as a cross-border driver, I now turn to consider what he would have earned from June 2002 until the present as a cross-border driver. In this regard, both sides evidence is not particularly compelling and I have to make some assumptions. The starting point is the Plaintiff’s agreed salary at the date of the accident of $10,000 a month. There had been an upward trend which from the date of the accident until the date of the Plaintiff’s return to work I have averaged out at $12,000 and awarded him total loss of earnings until his return to work in June 2002. Miss Cruden has urged as a basis for calculation an upward trend of 5% per annum and so arrives at a present day figure of $15,627.93 per month for a cross-border coach driver. It should not have been difficult to provide the court with almost precise figures as to the earnings of a cross-border coach driver but this has not been done. I am therefore going to have o do my best on the available material which recognises an upward trend but also has regard to blips caused by the world-wide recession and the need to be careful not to arrive at an extravagant conclusion without any firm or reliable figures to guide me. What I have arrived is at an overall average from June 2002 to the present of $12,500 per month which will need to be multiplied by 92.5 months giving a total of $1,156,250. These are the Plaintiff’s gross loss of earnings. I must deduct from this amount either what he has actually earned or, if I take the view that the Plaintiff could have reasonably earned more than his actual earnings (a rather meagre $62,383.20), what I consider he should in all the circumstances have earned. 39.It seems to me that on this part of the case, the Plaintiff has been unimpressive. He has worked part-time in a domestic capacity and now works in a garment factory earning about $800 a month. His then wife, for whom he has claimed for her lost earnings whilst she was in Hong Kong caring for him was earning $5,400 a month. This Plaintiff is a capable man who had held down a responsible job as a coach driver. It really is asking too much of the court to only deduct an amount of less than $63,000 as total earnings from June 2002 to the present day. This is not reasonable. I am of the view that I must attribute a considerably greater level of earnings to him since June 2002 to the present day. It may be that his wife is better qualified than he is academically which meant that she was able to command a salary in excess of $5,000 a month. Nevertheless, it is not reasonable to believe that this Plaintiff could not have earned in the order of at least half of what she was then making and on this basis I will attribute to him as his earning capacity over this period monthly earnings of $2,500 a month. Where this case is sparse on hard evidence I have had to do my best with what is available. I have observed this Plaintiff in the witness box over a number of days. He has a strong presence and personality. By June 2002, he was sufficiently mobile in terms of his recovery to work in an office or to do other physical work short of hard manual labour. In my judgment, this sum of $2,500 a month is a perfectly reasonable target which he should have achieved had he tried sufficiently hard. And so, $2,500 multiplied by 92.5 months is $231,250 which must be deducted from the gross loss of earnings over this period which produces a total of $925,000 as partial pre-trial loss of earnings. 40.The total award for pre-trial loss of earnings, comprising full loss of earnings from the date of the accident to June 2002 which is $384,000 and partial loss of earnings from June 2002 to the present of $925,000, is the sum of $1,309,000. Future Loss of Earnings 41.The multiplicand will be $12,500 (what he would have earned) less $2,500 (what he should have earned) which is $10,000 a month. As to the multiplier, the Plaintiff was born on 10 December 1957. He is now 52 years and 3 months old. Miss Cruden has submitted that given his age, the cases of Lau Pai Yam v Tai Tung Coffee Co. Ltd [2003] HKLRD (Yearbook) 435 and Mak Ping v Choi Po Chun [1995] HKLY 532 indicate a multiplier of between seven and eight years. As Miss Lau says there should be no future loss, she has made no particular submission as to a multiplier. For my part, I do not consider that the Plaintiff would have expected to go beyond the age of 60 as a cross-border coach driver. He is 52 now. I will allow a multiplier of five years. The total for future loss of earnings therefore is $10,000 x 12 months x 5 years which comes to $600,000. Loss of Earning Capacity 42.I do not believe that this is now justified. The Plaintiff has been provided with substantial damages for future loss of earnings and he has effectively regained his physical capacity. I do not think that this particular Defendant will ever be at any disadvantage in the labour market in finding other employment in the event of becoming unemployed. Special Damages 43.Miss Cruden has provided the following list which I will allow in full:
In addition he will be compensated for tonic food over what is a lengthy period in the sum of $10,000. He has asked for $35,000 but can only produced receipts for $6,024 but I am willing to give more to reflect the period over which he would have taken such foods. $10,000 it seems to me is a reasonable amount. I will also allow HK$5,400 for his wife’s loss of earnings in coming to care for him in Hong Kong. 44.In respect of special damages, some have already been paid. I have indicated what I will allow. I leave it to the parties’ solicitors to make the final calculations based on what has already been paid, for which credit will be given, and on the appropriate calculation in the exchange rate for the RMB and the Hong Kong dollar which will mean that the award will be expressed in Hong Kong dollars. The Awards
The total award will be drawn up based on these amounts which the parties’ solicitors will submit for my approval before the judgment is entered into the court’s record. To this, interest must be added at the appropriate rate and for the appropriate period for general and special damages. 46.I will leave the calculations to be agreed and prepared by the parties’ solicitors. I will also make an order nisi that the Plaintiff will have his costs of the assessment, taxed on a party and party basis together with legal aid taxation of the Plaintiff’s costs.
Liza-Jane Cruden, instructed by Legal Aid Department for the Plaintiff Selina Lau, instructed by Messrs Ip Kwan & Co. for the 1st and 2nd Defendants Appeal by the defendants against the award to Court of Appeal dismissed. Please refer to CACV81/2010 dated 29 November 2010 |
Cases cited in this judgment
Further hearings and rulings under HCPI 1375/2000