Singh Satnam v. Wong Chun Fung

HCPI 786/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 786 OF 2009

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BETWEEN

Coram : Before Master Woolley in Court

Date of Hearing : 14 and 15 April 2011

Date of Judgment : 27 April 2011

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ASSESSMENT OF DAMAGES

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1.These proceedings arise out of a road traffic accident which occurred on 25 September 2007 when the plaintiff was waiting to cross the second part of a dual carriageway in Sung On Street, Kowloon, and was struck from behind by a taxi driven by the defendant.

2.Proceedings were commenced on 15 December 2009 and judgment was entered by consent against the defendant on 5 January 2010 with damages to be assessed.

Injuries and treatment

3.On the day of the accident the plaintiff was taken to Queen Elizabeth Hospital at about 11.15 pm complaining of right hip and back pain and abrasions over his left forearm.  X-ray examinations revealed no fractures and he was treated and discharged with a diagnosis of back contusion.  He returned to the hospital on 27 September and 26 October 2007, 13 February and 20 February 2008 complaining of persistent back pain and was referred to the physiotherapy department.

4.The plaintiff attended one session of physiotherapy at Queen Elizabeth Hospital and was referred for outpatient physiotherapy for which he went to Kowloon Hospital.  There he was treated on 14 occasions in 2007, and in 2008, up to 7 May, had attended 23 times.  Throughout he complained of persistent back pain, limited tolerance of sitting and walking and painful trunk movements.  He was granted sick leave from the date of the accident to 18 May 2008.

5.His present complaints include continuing and constant low back pain requiring analgesics for pain relief, pain when putting weight on the right foot allowing him to walk no more than 15 minutes before having to rest and difficulty carrying and lifting heavy objects.  The latter, he claims, has meant he had to give up the delivery work he did for the store in which he was a partner, and eventually led to the closure of the business.  I will look at this in more detail below.

6.It is clear that the doctors at Queen Elizabeth Hospital who first saw the plaintiff were of the opinion that this was a minor injury which would soon clear up as they only gave him one day’s sick leave.  However, he returned to them two days later and continued to attend on several occasions, latterly for physiotherapy, as noted above.  It is apparent that, at that time, his back was giving him cause for concern, and it was more than the minor contusion that was originally diagnosed.  The question here is how much more.

7.For the purposes of these proceedings a joint medical report was arranged, with Dr Wong Kwok Shing, Patrick, appointed by the plaintiff’s solicitors and Dr Lau Man Tsang, Richard, nominated by the defendant’s solicitors.  After reciting the history of the accident and his treatment thus far, and recording his present complaints, the doctors noted their joint findings on physical examination to the effect that, inter alia, he can sit for 30 minutes for the interview without a problem, and can stand, walk and squat normally, although while standing on single leg, walking on heels and tiptoes he complains of pain.  They also noted that inspection showed normal alignment, no deformity, swelling or muscle spasm, and no muscle wasting.

8.They agreed that there was still apparently some tenderness over his lower back and some reduction in lumbar spine movement with complaint of pain, although they said the simulation tests were equivocal, there was no significant lower limbs neurological deficit, and that there was some inconsistency with straight leg raising tests in different postures.

9.The doctors did not wholly agree on the plaintiff’s residual impairment. Dr Wong said that the overall prognosis for the back injury was expected to be satisfactory, that he may have mild residual back pain with exacerbation from time to time upon heavy exertion, and that his lower limbs’ function was unlikely to be impaired.  While Dr Lau agreed that there should be no more than mild residual discomfort from the back, as a result of some of the inconsistencies in the physical examination, he considered that his suffering may be exaggerated.  Indeed, Dr Wong, while stating that he should be able to return to work as a grocery shop assistant although not carrying as much weight as before, goes on to say that the latter was probably not reduced to the extent the plaintiff claimed.  Dr Lau was of the view that he could resume his pre-accident job with minimal back discomfort.  They agreed that no further treatment was called for apart from use of analgesics when necessary.

10.It is apparent from this report that neither doctor supports the contention of the plaintiff that he has continuing pain to the extent that he claims, both of them using the word “mild” in describing his residual discomfort caused by what was clearly no more than severe bruising from the accident, although I consider it likely from this that his discomfort is, as he claims, increased on exertion such as lifting heavy items.  Otherwise I consider on the evidence that, although there is some continuing discomfort, the residual impairment is not as severe as the plaintiff claims.

Pain suffering and loss of amenities

11.The plaintiff was 29 years old at the time of the accident, having been born in India and educated up to secondary level.  He enjoyed good health and is married with one child.  He played hockey, which he claims he can no longer do.  He also claimed in his witness statement that he can still have sexual activity “but with less power”.  This was not explained further in evidence. However, the doctors were in agreement also that his enjoyment of life and ability to cope socially will only be mildly affected by his back injury.

12.I have been referred to a number of authorities where similar injuries were sustained where the PSLA damages awarded vary from a high point of $300,000.00 to a low of $120,000.00.  Mr. Lin for the plaintiff submits that the proper figure here is $300,000.00.  However, it is clear that in at least one of the authorities cited, Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599, the injuries were more severe, with “moderate” residual pain, rather than “mild” here, and in Ng Lai Fan, Fanny v The Hong Kong Golf Club HCPI 511 of 2005, where $250,000.00 was awarded, there were additional psychiatric problems.  All the other authorities, even those with similar injuries, vary to a large degree, which indicates how difficult it is to assess a proper sum in an individual case.  On the medical and other evidence before me, I agree with counsel for the defendant that a reasonable sum here is $150,000.00.

Pre-trial loss of earnings

13.Since 2004 the plaintiff has been first owner, then partner, in a general store, Dastgeer General Store, specialising in Indian foods and spices and he has produced a business registration certificate dated 12 November 2004.  On 7 February 2005 one Sukhdev Singh was added as a partner.  This gentleman was referred to in the plaintiff’s witness statement as a “friend” but when asked about the relationship in cross-examination he admitted that he was in fact his father in law.  The business continued to be registered as a partnership until 12 January 2008, when the status reverted to “individual” with Sukhdev Singh as the owner.  The plaintiff claims that the reason for this was that he retired from the partnership as he was unable to work at all during his period of sick leave.  In his witness statement he said that his partner had asked him to give up the partnership, but admitted in cross-examination that it was mutually agreed.

14.The plaintiff was granted sick leave from 25 September 2007 to 18 May 2008 and Dr Wong states that he considers this reasonable, although Dr Lau considers that for such an injury six weeks to three months are adequate.  Mr. Pang for the defendant relies on the latter statement in urging me to reject any sick leave beyond three months.  I regret that I cannot agree with this view. In the absence of any evidence that the sick leave certificates were not properly granted, I cannot rely on a statement by one doctor that a shorter period should be given.  I am supported in this view by the judgment of Deputy Judge Saunders, as he then was, in Zheng Biao v Kwok Wai Lung HCPI 115 of 2001, where two orthopaedic surgeons said a shorter period was appropriate, and that of Suffiad J in Li Wan Kei v Hyundai Engineering & Construction Company Ltd HCPI 577 of 2004, in similar circumstances to this.  I am accordingly satisfied that the plaintiff is entitled to an award for total loss of earnings for this period.

15.In his witness statement and in the statement of damages, the plaintiff claims that he was earning $10,290.21 per month at the time of the accident. This was challenged by the defendant in the answer to the statement of damages who pointed to the profit and loss account of the store produced by the defendant for the period 1 September 2006 to 31 August 2007 showing the partners’ salaries at $96,000.00 each for the year, or $8,000.00 a month. Further, the accounts for the following year, 1 September 2007 onwards, show the salary of the remaining partner, Sukhdev Singh, at the same figure, with a sum also listed of $60,000.00 for “salary and allowance”, without stating for whom.  I will return to that figure later.  The fact remains that there is no explanation for the sum claimed of $10,290.21 as monthly income, no direct documentary evidence, and no evidence from his then partner Sukhdev Singh.  It is possible that those representing the plaintiff have taken the sum shown for net profit for the 2006-2007 year of $53,678.10 and divided it between the partners and added it to the salaries to arrive at the sum claimed, but there is no evidence that this was done.  It is just as likely that the profit would be retained in the business and carried forward for future eventualities.

16.Mr. Lin for the plaintiff has made much of the fact that the plaintiff was not cross-examined on this figure and says therefore that the defendant and the court have to accept it.  I do not agree with that.  The onus is on the plaintiff to prove every aspect of his case and I do not have to accept figures put forward baldly without explanation or support.  The only real evidence of his income at the time is the accounts which clearly show a salary of $8,000.00 and it is this figure which I propose to take in calculating any loss of income.

17.Prior to the accident, the plaintiff said that the shop relied on a large amount of delivery business and that he was the one who did the deliveries, as only he had a driving licence, and he was the younger of the partners.  He said that he was required to deliver goods that weighed about 40 to 45 kg and often bags of sugar and rice up to 50kg.  Bearing in mind that this was basically a grocery store supplying private residences, not restaurants, I am of the view that the plaintiff’s evidence as to the size of the loads he had to deliver, and the frequency of carrying the heaviest weights, is something of an exaggeration.  However, even with household goods and a number of deliveries each day I can see that a degree of exertion would be required to the extent which would, as Dr Wong has said, exacerbate the discomfort in his back, and reduce his work efficiency.  Following the accident he claims he could not deliver goods weighing more than 10 to 15 kg, again, according to the medical report, possibly something of an exaggeration, and the business suffered as a result.  It is clear from the accounts that gross sales from the business declined from $363,996.00 in 2006/2007 to $241,480.00 in 2007/2008 and no other explanation has been put forward than the inability of the plaintiff to perform his part in the business as well as before the accident.  I therefore accept that this was the case and he acknowledged this by retiring from the partnership and taking a lower salary.

18.Following upon his return from sick leave, by which time the business was a sole proprietorship owned by his father in law, he says that he was employed by him at a salary of $5,000.00 a month.  In evidence he said that the figure of $60,000.00 shown in the 2007/2008 accounts is that salary.  That cannot of course be right.  These accounts are from 1 September 2007 and therefore cover about three weeks before his accident when he would be entitled to his earnings as a partner, followed by the whole of his sick leave to 18 May 2008 when he, presumably, earned nothing.  However, there is no other evidence of what this figure referred to, and the plaintiff was unhelpful on the matter.  The only definite evidence I have therefore is that of the plaintiff that this is what he was paid, and I have to accept it.

19.The defendant called as a witness a Miss Lai Pui See, an employee of the Social Welfare Department of the government who had interviewed the plaintiff and filled in his application for relief under the Traffic Accident Victims Assistance Scheme (TAVAS) in which he was described as unemployed and only claimed an injury grant rather than interim maintenance. Mr. Pang submits that this is evidence that he had not suffered any loss of income after the accident at all.  I regret that I do not accept this.  While Miss Lai was clearly an honest witness, she was trying to recall events over three years ago of a claimant she admitted she could not completely remember, having during that period processed a further 50 or so applications a month, and admitted that she was relying on her custom of following the usual procedure, as she always did.  Added to this there is the problem of language.  The plaintiff speaks no or little English, and there is no evidence his Cantonese is any better, although he must have had sufficient to run the business, even if dealing mainly with customers of similar origin to his.  This resulted in at least one glaring inaccuracy, where he is recorded as unemployed while he says that he told her merely that he was on sick leave. This is clearly wrong as to unemployment and may have been because he was not working at that time.  It seems because of this, Miss Lai crossed out the word “with” rather than “without”, before “loss of income”. Whatever the reason, I do not think it assists the defendant as the evidence as to his employment and his business far outweighs the effect of what may well be an error in a government form.

20.The business finally closed down completely on 30 October 2010 and the plaintiff says that he has been unemployed since then and receiving benefits from Social Welfare, as the only work available was too heavy for him.

21.As in any similar case, I can only make my decision on the evidence before me.  Here that evidence in my view has been extremely limited.  On the plaintiff’s part I might have had evidence from his former partner, or at least further accounts of the business from that partner showing precisely what was paid to the plaintiff in the years 2008/2009, and 2009 to the close of the business in October 2010.  The only evidence I have of this period is that of the plaintiff to the effect that he was paid $5,000.00 a month, and there is no contradictory evidence from the defence showing what a man in his position might reasonably earn.  This being the case, I have to accept what the plaintiff says, namely that all he has been able to earn since the accident is that sum.  Mr. Lin has not put forward any other case that his possible earnings are less than that, and I accordingly assess his continuing loss at $2,750.00 a month, being the sum I find that he was earning pre-accident of $8,000.00 a month less the sum of $5,000.00 plus MPF he is capable of earning since he returned to work after his sick leave.

22.His loss of earnings is accordingly $8,000.00 a month from 25 September 2007 to 18 May 2008, being 6 months and 23 days, or a total of $53,978.49, and $2,750.00 a month ($8,000.00 - $5,000.00 x 1.05 MPF) from 19 May 2008 to date of trial, being 34 months and 26 days, making a total for that period of $95,806.45.  The total loss of earnings to date of trial I accordingly find to be $149,784.94.

23.I have not made a separate award for loss of mandatory provident fund benefits as Mr. Lin for the plaintiff has clearly, from the calculations in his written submissions, accepted that, as a partner in the business, the plaintiff would not have received MBF benefits in addition to his income as a partner, but would do so as an employee, in addition to the $5,000.00 a month I find he could earn.  I have made my calculations accordingly.

Future loss of earnings

24.The plaintiff is now aged 31 years and it is clear from the medical evidence that his condition, comparatively mild as it is, is not likely to improve further.  Mr. Lin has suggested a multiplier of 15 years on the basis of the decision in Wong Chi Kwong v Polytrade Recycling (HK) Ltd HCPI 176 of 2007.  No argument has been advanced by Mr. Pang in opposition to this figure which seems reasonable on this and other similar authorities.  I therefore find that his future loss is $495,000.00 being $2,750.00 x 12 x 15 years.

Loss of earning capacity

25.The defendant’s case throughout this hearing has been that there is no continuing loss of earning capacity, and that there should be no award under this head, or, indeed, for any loss of earnings after the sick leave period.  It will be apparent from what I have said above that I reject this approach, having found that, although the plaintiff’s continuing disability falls well below the serious bracket, he does have some continuing restriction on his ability to work as before, and, it follows, on his disadvantage in finding employment in the labour market.

26.On the authorities which have been cited to me it appears that there are two ways to approach this head.  One is to award a global sum, trying as far as possible to equate that with what has been awarded in similar cases, and the other to decide how many months the plaintiff is likely to be out of work looking for employment in the future.  Either way is a very inexact science, but of the two the second seems slightly more preferable.  On that basis I consider a period of 12 months to be appropriate here, giving a sum of $63,000.00 ($5,250.00 x 12).

Special damages

27.These have been conceded by the defendant in the sum of $14,220.00.

Summary of damages awarded

28.

PSLA	$150,000.00
Pre-trial loss of earnings	$149,784.94
Future loss of earnings	$495,000.00
Loss of earning capacity	$ 63,000.00
Special damages	$ 14,220.00
Total	$872,004.94

Interest

29.There will be interest on PSLA at 2% from the date of the writ and on pre-trial loss and special damages at half the judgment rate from the date of the accident, both to the date hereof.

Costs

30.There will be an order nisi that the defendant pay the plaintiff’s costs to be taxed.  The plaintiff’s own costs are to be taxed under Legal Aid Regulations.

Mr. Kenny Lin instructed by Messrs. Massie & Clement for the plaintiff.

Mr. Robert Pang instructed by Messrs. Cheng, Yeung & Co for the defendant.