Li Tat Chuen v. Yip Wing Chuen Jacky and Others

HCPI 581/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 581 OF 2011

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BETWEEN

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Before: Hon Zervos J in Court

Dates of Hearing: 22, 23 and 24 January 2014

Date of Judgment: 23 October 2014

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J U D G M E N T

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Introduction

1.This is a claim for damages by the plaintiff for personal injuries he suffered as a result of a motor vehicle accident on 26 February 2010 when the taxi he was driving collided head on with a vehicle driven by the 1^st defendant who was an employee of the 2^nd defendant which also owned the vehicle. The 3^rd defendant was the insurer of the 2^nd defendant’s vehicle.

2.The 1^st and 2^nd defendants initially filed a defence in the action but later the solicitors acting for them made application to cease to act which was granted.  The 3^rd defendant as an intervener was then joined as a defendant.  The hearing of the claim proceeded in the absence of the 1^st and 2^nd defendants with the 3^rd defendant left to contest the claim.  Until the commencement of the trial, both liability and quantum had been in issue.  However, Mr Jackson Poon, appearing on behalf of the 3^rd defendant, made it clear at the opening of the case that liability was conceded, and that which remained for decision was solely the determination of quantum.

Background

3.The plaintiff is 56 years of age.  He is married with no children.  His wife is a primary school teacher.  He started work at 17 years of age, helping out his father in a hawker store selling flowers.  He did this work for about 10 years and then worked on construction sites and as a driver.  He had a serious traffic accident in 2005.  He was off work for 3 months and returned to work for 6 months before he was laid off.  In 2008, he commenced work as a taxi driver until the date of this accident.  He was granted sick leave from 26 February 2010 to 10 February 2012 and thereafter in June 2012 took up employment as a security guard.  It was revealed during the course of this trial that the plaintiff owns a fleet of 9 taxis.  He had been less than frank about his livelihood and income and together with other matters, raised concern as to the genuineness of his claim.

4.As a result of this accident, the plaintiff was diagnosed as having suffered a whiplash injury to the neck but it was also observed that he had a pre‑existing degenerative condition of his cervical spine.  He later complained of suffering from stress and depression as a result of trauma he experienced because of the accident.  In making an overall assessment of the damages, I have had to address the following issues as well.  How forceful was the impact of the collision of the vehicles?  Did the accident cause the injuries that the plaintiff claimed he had suffered?  Flowing from this issue, was whether the plaintiff was truthful and genuine about the symptoms he claimed he was experiencing and whether the sick leave period of about two years was appropriate in the circumstances.  What effect, if any, did the plaintiff’s degenerative condition have on the injuries he suffered?  As to the psychological and psychiatric condition the plaintiff claimed he suffered as a result of the accident, I will say more about this later, as the comments as well as the diagnosis and prognosis of the plaintiff’s psychiatric condition by the doctors in their report reflect that he had not been forthcoming about relevant matters and was not as affected by the accident as he sought to portray.

Brief facts

5.The accident happened on 26 February 2010 at about 3:10 pm.  It occurred at the T‑intersection of Tai Po Road and Mui Shu Hang Road, Tai Po.  At the time, the plaintiff was driving his taxi along Tai Po Road when he made a right hand turn into Mui Shu Hang Road.  At the same time, the 1^st defendant had overtaken a vehicle in front of him in Mui Shu Hang Road and as a consequence his vehicle went into the oncoming carriageway in which the plaintiff was entering.  It resulted in a head on collision between their vehicles.

6.There was an issue as to how forceful was the impact when the vehicles collided head on.  The plaintiff’s vehicle was making a right hand turn into a side road at the time.  Obviously, the speed of the vehicle would have been reduced in order to negotiate the turn.  The 1^st defendant was overtaking the vehicle in front of him at the time, but as he was entering the main road of a T‑intersection, he would have to make a left or right turn, so the speed of his vehicle would have also been reduced, although he may have accelerated to overtake the vehicle in front of him.  The resultant damage to the vehicles and the position they ended up after the accident gave a clear indication of the force of the collision.  The damage to both vehicles was extensive.  The entire front of the plaintiff’s vehicle was damaged.  The force of the impact had moved the plaintiff’s vehicle some distance and it had come to rest in the opposite direction it had been travelling along Tai Po Road.  I was satisfied that the two vehicles collided with substantial force as it brought the plaintiff’s vehicle to an abrupt halt or pushed it back and spun it around 180 degrees so that it was facing the direction it had been travelling along Tai Po Road.

Medical history

7.The plaintiff was taken by an ambulance to the Accident and Emergency Department of the Alice Ho Miu Ling Nethersole Hospital. He was examined by a doctor who noted that his general condition was satisfactory and diagnosed that he had suffered a neck sprain.  He observed that he had tenderness on his lower neck, sternal region and lower back.  Other than that, he had no other injuries.  An X‑ray of the cervical spine showed a loss of lordosis with narrowing of the disc at C5/6 level[1]. On the same day, the plaintiff was transferred to Department of Orthopaedics and Traumatology for hospitalization and further treatment.  He complained of neck pain, stiffness and numbness to his limbs.  A physical examination revealed tenderness over the interscapular region and limitation of the range of motion of his neck but otherwise he had full power of his limbs when he was discharged as an out‑patient.  The X‑ray film of his cervical and lumbar spine confirmed no fracture or dislocation.  He was treated conservatively with analgesics and physiotherapy.  He remained there until 4 March 2010[2].

8.Upon discharge, the plaintiff was given intensive neck physiotherapy, and as a consequence, his neck pain and range of motion of his neck had improved.  There was no more numbness to his four limbs and he walked unaided with normal gait.  It was recommended that he continue with physiotherapy and if the symptoms persisted he should have an MRI scan[3].  On 4 March 2010, he was given a medical certificate recommending sick leave from 26 February to 16 April 2010[4]. In the meantime, he received physiotherapy treatment which I will discuss later, as I want to focus on the nature and pattern of his consultations at the orthopaedic clinic thereafter.

9.On 16 April 2010, the last day of his sick leave he attended the clinic.  The doctor noted that his neck pain had much improved with physiotherapy but he complained he was frequently experiencing numbness attacks to his four limbs a few times every day.  However, the doctor recorded that he had full power to his four limbs. He also complained about pain in his knee[5]. This appears to have been an injury from his previous accident.  He was given a medical certificate recommending sick leave from 16 April to 18 June 2010[6].

10.The plaintiff had follow‑up treatment from 17 April 2010 as he continued to suffer with neck pain and eventually had an MRI scan on 28 December 2010 which showed disc protrusion at C4/5 and C5/6 and narrowing of the disc at C4/5.

11.The plaintiff received a total of 34 sessions of physiotherapy treatment for the period from 8 March to 9 July 2010 and 5 August to 16 November 2011.  He also has received two courses of occupational therapy treatments at the hospital.  This consisted of 28 sessions for the period from 13 August to 15 September 2010 and 28 November 2011 to 2 August 2012.  He was given a driving assessment on 19 January 2011 and it was concluded that as a result of the pain to his neck he was unable to drive.  The plaintiff also attended a pain clinic on 23 September 2011 due to the pain that he said he was experiencing in his neck[7].

12.He received sick leave certificates for the period from 26 February 2010 to 10 February 2012.  He was last seen at the orthopaedic department of the hospital on 19 October 2012. He was granted sick leave for nearly 2 years for the neck injury he claimed he suffered as a result of this accident.  Sick leave was successively granted for varying periods with no follow‑up required on each occasion.  It is also worth noting that the physiotherapy and the occupational therapy focused on treating the plaintiff for difficulty he experienced when turning his neck and sitting for prolonged periods.  However, soon after the accident and upon receiving treatment it was recorded that he had improved and that his neck pain had been reduced.  As pointed out by Mr Poon, the plaintiff suffered soft tissue injury to the neck as a result of this accident and some six months later on 15 September 2010 it was suggested as part of his rehabilitation programme that he try resuming duty as a taxi driver and he agreed.  And yet, after more than three years, he had not tried to drive and maintained that he could not resume driving.  I note that it was recorded at the time that his diagnosis was neck pain and his major complaint was neck stiffness and that he was reporting neck tenderness after prolonged sitting and neck turning which was essential as a taxi driver and for which he was taught stretching exercises.  It is submitted by Mr Poon, that the plaintiff had exaggerated his symptoms to magnify his claim for compensation. Based on the evidence before me, I agree with this submission.

13.The plaintiff developed psychological and psychiatric symptoms after the accident.  At the initial assessment in the Psychiatric Department of Tai Po Hospital the plaintiff complained of reoccurring nightmares, avoiding going to the scene of the accident and a high degree of anxiety when asked to drive.  He became socially withdrawn and his concentration and memory became poor.  The diagnosis was that he suffered from post‑traumatic stress disorder and depression.  On this aspect of his condition, it is important to consider the joint psychiatric report which I will come to shortly.

Medical evidence

14.The plaintiff was jointly assessed by Dr James Kong Kam Fu for the plaintiff and Dr Daniel Yip Kwok Hing for the defendant.  Both are specialists in orthopaedics and traumatology [8].  They carried out the joint assessment on 10 April 2012.  Dr Kong was of the opinion that the diagnosis was neck sprain injury with prolapsed intervertebral disc at C4/5 and C5/6.  Dr Yip was of the opinion that the plaintiff suffered soft tissue injury to the neck.  Both experts agreed that there was mild pre‑existing degenerative condition of cervical spondylosis.  The doctors noted that this would not have been caused by the accident and the condition may or may not cause symptoms.  The experts agreed that if the accident occurred the way it was described by the plaintiff, then the diagnosis was consistent with the mechanism of the injury and his symptoms were justified.  Dr Yip, however, expressed the view that the collision was not as severe as suggested by the plaintiff and this would have had a fundamental impact on the interpretation of the injury force involved.  I must say that from my assessment of the nature and circumstances of the accident, the impact of the collision was substantial and an occupant of the plaintiff’s vehicle would have experienced a sudden and significant movement of the vehicle on impact.  The vehicle had moved some distance from the point of impact and had spun around.

15.On the question of work capacity, Dr Kong stated that it would be difficult for the plaintiff to resume his previous job as a taxi driver which required prolonged sitting and rotation of the neck.  Dr Yip on the other hand stated that the plaintiff could return to work as a taxi driver in that the work did not require extreme neck rotations and that he could use his peripheral vision and utilise the rear and side mirrors.

16.On the question of the duration of the sick leave, Dr Kong said that the leave granted from 26 February 2010 to 10 February 2012 was reasonable while Dr Yip said that a reasonable period of sick leave for a soft tissue injury of the neck requiring 18 sessions of physiotherapy would at the most be from six to nine months. I accept Dr Yip’s assessment of the diagnosis and prognosis of the plaintiff’s injury.

17.There was also a joint psychiatric report prepared by Dr Steven Ng Wai Man and Dr Benjamin Lai dated 11 December 2012.  Dr Lai was of the opinion that the plaintiff was suffering from minor residual psychiatric symptoms [9].  He was of the opinion that the plaintiff was mentally capable of returning to his pre‑accident employment or any other employment appropriate to his physical ability.  He noted that the plaintiff had a previous traffic accident in 2005 where he was involved in a head on collision and thought he would die.  He was trapped in the driver’s seat and experienced difficulty in breathing.  He sustained a fracture to the rib and bruises to both legs.  The doctor was of the view that the plaintiff had developed symptoms of post‑traumatic stress disorder after the traffic accident in 2005 which he was able to overcome and resume driving and work without psychiatric treatment.  He was of the view that the accident in 2005 was more traumatic than the one in this case, and yet in that case he was able to resume work and drive after a few months.  He said that it was difficult to explain how the plaintiff could have developed post‑traumatic stress disorder of much longer duration which required psychiatric treatment after an accident with a lesser degree of immediate psychological impact.  He also said it was even more difficult to explain how the plaintiff could have returned to driving after a few months without much problem or the need for psychiatric treatment after the previous traffic accident in 2005 but was unable to do so after driving for more than two and a half years after the accident in 2010.  He noted that the public psychiatrist and clinical psychologist had not reported or noted in the available medical records about the plaintiff’s previous traffic accident and previous post‑traumatic stress disorder symptoms.  He noted that this was a serious omission in the account that the plaintiff has given to the treating psychiatrist or clinical psychologist and to their understanding and treatment of his condition.

18.Dr Lai was of the opinion that the plaintiff was mentally capable of returning to work and the adverse effect of the psychiatric condition on his work capacity was very mild.  He noted the sick leave that had been given was for his physical condition and not by his treating psychiatrist. 

19.Dr Ng on the other hand was of the view that the plaintiff had suffered from post‑traumatic stress disorder and that his condition improved with psychiatric and psychological treatment but that he still had problems and a moderate depressive episode.

Pre‑existing condition

20.As the plaintiff suffered from a pre‑existing degenerative condition of the cervical spine, it is necessary to consider whether this would have a bearing, and if so how, on an award of damages to the plaintiff as a result of the injury he sustained from this accident.  The leading authority on the approach to be taken when considering a pre‑existing condition when assessing damages is the Court of Appeal decision of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958[10]. In that case, the plaintiff, a carpenter working for the defendant on a construction site, sustained injuries to his back as a result of two accidents. He had a pre‑existing degenerative condition of the spine which had been symptomless before the accident.  The issue for the trial judge was what, if any, reduction should be made to the damages which he would otherwise have awarded in the absence of the pre‑existing condition for pain, suffering and loss of amenities and for past and future loss of earnings.  The trial judge identified the following three possible scenarios when considering the effect of a pre‑existing condition on the assessment of damages which the Court of Appeal endorsed[11].

(1)       The first is where the plaintiff was almost certain to have gone through life unaffected by the condition and in such a case the defendant would be liable for all damages caused.

(2)       The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state, and in such a case it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3)       The third is where the present condition would certainly have occurred at some stage in any event, and in such a case clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating even would have occurred.

21.The Court of Appeal went on to explain that when assessing a pre‑existing condition in an award of damages, the conventional approach is to make a deduction from the multiplier to take into account the loss associated with the plaintiff’s pre‑existing condition.  The court stated:

“Where a pre‑existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre‑trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.

When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when the plaintiff’s working life is likely to be limited by a pre‑existing condition as in this case.”[12]

22.According to the orthopaedic joint report, the plaintiff had mild pre-existing cervical spondylosis which may or may not cause symptoms.  The plaintiff argued that because there was no expert evidence when the degenerative changes would become symptomatic, there should be no apportionment as set out in Chan Kam Hoi. From the medical evidence before me, it would appear that the plaintiff’s pre‑existing condition of the spine was mild and it was difficult to determine if and when it would become symptomatic.  For the purpose of assessing the heads of damages claimed, I will in the circumstances of this case, not apportion or factor in the pre‑existing condition.

The plaintiff’s evidence

23.The plaintiff was a poor witness and from my assessment of him did not give truthful evidence about the nature and situation of his livelihood and income and the nature and degree of the injury from which he suffered and the impact it had on his working and daily life[13].

24.The plaintiff initially claimed that he earned more than $600 a day but at trial asserted it was in the region of $1,200 to $1,300 a day.  He sought a loss of earnings of $18,000 plus his mortgage loan repayment of $10,000 on the taxi.  He had been caught out exaggerating his claim by saying he earned more than $600 a day.  That was evident in his application for assistance as a traffic victim, where he declared his earnings were $600 a day.  This additional claim was later withdrawn by the plaintiff and he confirmed his loss of earnings was $600 a day which amounted to $18,000 per month.  He claimed he worked two shifts from 7 am to 10 pm every day for 30 days each month which was discredited when he was questioned as to whether he had time off during the day or the month.

25.In the course of cross‑examination of the plaintiff, it emerged thathe had 9 taxi licences.  His first taxi licence was in relation to the taxi in which he had his accident on 26 February 2010.  After that accident, he purchased another 8 taxi licences, 4 of which were purchased during 2010.  The significance of this matter is that he would have had to arrange and manage the rental and maintenance of a fleet of taxis during the period he claimed he was unable to work.

The video recordings in 2012

26.The plaintiff was under surveillance on certain days in April and May 2012 where he was observed travelling to and from home and engaging in other activities, moving freely without restriction or difficulty.  The video recordings were quite revealing.  He was observed on various occasions engaging in activities where he was moving his head freely and sitting down without any difficulty and for prolonged periods.  There was no apparent restriction to the movement of his neck, and he was observed looking sideways, turning his head around, and generally moving freely.  On one occasion he is filmed sitting at a dining table in a restaurant, looking at a paper and moving his head around from left to right.  This was to be contrasted with his presence in court when giving evidence, where his neck was completely rigid and with severe restriction of movement. However, when giving evidence and distracted, he moved his head freely, sometimes nodding and looking sideways.  He was in my view clearly pretending that his neck injury was a lot more serious than it was.  Bear in mind that this was almost 4 years after the accident.

27.It is worthwhile noting that the plaintiff was not claiming travelling expenses because it was acknowledged that he walked to and from the hospital on each occasion which was about a 25 minute walk.  This evidenced that he was capable of engaging in physical activity and not affected by neck pain when walking.

The exaggeration of the injury and symptoms

28.Mr Patrick D Lim, for the plaintiff, invited me to have regard to the objective evidence of the residual impairments displayed by the plaintiff in order to determine how serious the injury was that he suffered and to dispel the suggestion that he was feigning his symptoms. He pointed to the joint medical report where it was noted he displayed muscle spasm when his cervical spine was examined.  It was argued that a muscle spasm was an involuntary contraction of a muscle or group of muscles and it was generally accepted to be an objective sign of an underlying problem, and as it was involuntary it could not be feigned.  The nature and severity of the muscle spasm was not revealed in the report although it was also noted that there was no deformity, that normal cervical lordosis was preserved, that tenderness was reported along the neck on light touch, that there was a full range of motion of the shoulders, elbows and wrists and that he demonstrated active range of motion of the spine and limbs.  The doctors generally agreed that he sustained a neck sprain injury but there was a concern as to whether he was exaggerating his symptoms [14].

29.The plaintiff also relied on the physiotherapist’s clinical findings on 16 November 2011 that his right and left rotation was still half the range of motion.  As noted in the report, the plaintiff defaulted in attending any further physiotherapy after that date[15].  The plaintiff further relied on the fact that he was recorded in a report from the Department of Orthopaedics & Traumatology of Alice Ho Miu Ling Nethersole Hospital that on 29 June 2012 during his last consultation he still complained of neck pain and there was reduced range of motion of his cervical spine [16]. This in my view did not provide independent and objective support of the genuineness of his claimed injury.  It was a record of his account of his complaint. There was clear evidence that the plaintiff was exaggerating the nature and degree of the injury he suffered.  The surveillance video completely contradicted his claim that he was restricted in moving and turning his neck. Even when giving evidence he presented as being unable to move or turn his neck but when caught off guard he was seen to do so.  I find that he grossly exaggerated his inability to move or turn his neck, and the surveillance footage proved to the contrary and that he was able to engage in normal neck movement.

30.The plaintiff also relied on the fact that he received psychiatric and psychological treatment but serious doubts about his genuineness was raised in the joint medical report because of his omission to mention to those persons treating him of the accident he was involved in 2005 which was far more serious than the one in the present case[17].

Findings

31.I make the following findings:

(1)    The plaintiff was involved in a motor vehicle accident on 26 February 2010, where the taxi he was driving had a head‑on collision with another vehicle.  The force of the impact of the collision was substantial and caused the plaintiff’s taxi to stop abruptly and spin out of control.  The accident was caused by the other driver’s negligence.

(2)    The plaintiff was involved in a previous accident in 2005 which was far more serious than this accident.  He suffered injuries to his ribs and legs and was on sick leave for three months.  Thereafter, he returned to work and occasionally drove a lorry.  He was traumatised by the accident but did not require psychiatric treatment.

(3)    The plaintiff suffered a neck sprain injury as a result of the accident on 26 February 2010.  He was admitted to hospital and treated for a period of one week.  After physiotherapy treatment, his neck pain and range of motion of his neck had improved. There was no more numbness to his four limbs and he walked unaided with normal gait. He suffered from stress and anxiety from which he recovered.

(4)    The plaintiff had a pre‑existing degenerative condition of the cervical spine that may or may not have caused symptoms.

(5)    The plaintiff exaggerated his injuries and feigned his symptoms.  He suffered a mild neck sprain from which he would have completely recovered after 9 months of treatment.

(6)    The plaintiff did not disclose the true nature and situation of his livelihood and income.  In 2010, the plaintiff managed and maintained 5 taxis which later increased to 9 taxis.  Any income he earned from driving a taxi prior to the accident was about $15,000 per month.

(7)    The plaintiff falsely presented himself as suffering with neck injury when giving evidence in court.  He portrayed himself as unable to move his neck or sit for a prolonged period.  He was observed moving his neck and sitting comfortably when his attention was drawn elsewhere.  The video recordings of him in April and May 2012 showed him moving freely and without any apparent discomfort, in particular his neck and head movements were normal and without restriction.

(8)    The plaintiff attended a joint medical examination by two orthopaedic doctors on 10 April 2012, complaining of neck pain and restriction in rotation, and numbness to the upper limbs.  This was contrary to the video recordings of him taken on this day and other days soon thereafter.  The plaintiff exaggerated his injury and symptoms to the doctors.

(9)    The plaintiff attended a joint psychiatric examination by two psychiatrists on 30 October 2012.  He did not fully and accurately disclose his physical and mental condition as a result of this accident.  He also did not fully and accurately disclose that he managed and maintained 5 taxis.  It was noted that the 2005 accident was not disclosed by the plaintiff to his treating psychiatrist and physiotherapist.  I accept the assessment of Dr Lai who found that the plaintiff was suffering from minor residual psychiatric symptoms.

(10)  The plaintiff defaulted in attending any further physiotherapy after 16 November 2011 and stopped occupational therapy in August 2012, and yet claimed as at the date of the trial that he had not made full recovery from the accident.  This was contrary to the video recordings which showed him moving and turning his head freely.  He took up employment as a security guard in June 2012.

The heads of damages

(i) Pain, suffering and loss of amenities

32.The sum sought under this head by the plaintiff was initially $450,000.  However, the plaintiff submitted after trial that the award should be in the region of $300,000 to $350,000.  The defence disagreed and put the sum in the region of $120,000.

33.Damages under this head are awarded for past and future pain and suffering attributable to the injury and may include any mental anguish or disorder suffered or other factors which increase the suffering.  I am of the view that the plaintiff had exaggerated his neck injury and the impact it had on his daily and working life for the reasons I have given.  I find that the plaintiff suffered a neck sprain as a result of the accident, from which he would have recovered after 9 months of treatment.  I find that he suffered from stress and anxiety as a result of the trauma he experienced from the accident which I have included under this head of damages.  On this basis, I have taken into account the amenities that would have been lost by the plaintiff for the relevant duration.  Accordingly, I award a sum of $175,000 for this head of damages.

(ii) Loss of earnings

(a) Pre‑trial loss of earnings

34.The plaintiff owned his own taxi which was financed by a bank loan.  Prior to the accident, I am told that the plaintiff worked 15 hours a day and 30 days a month.  I am also told that he was earning about $600 a day which amounted to $18,000 per month.  The loan he took out with the bank to finance the taxi was secured by way of mortgage with a monthly repayment of $10,000.  During the period that he was on sick leave from the date of the accident to 10 February 2012, he did not work and as a result of neck pain and difficulty in turning his head, he has not resumed work as a taxi driver.  Since the accident he has rented his taxi and receives a monthly sum of $7,000.  At the end of the sick leave period, the plaintiff took up employment as a property guard earning approximately $7,000 to $7,500 per month.

35.I do not accept that the plaintiff was working the hours and days each month that he claimed.  He was cross‑examined on this issue, and it was clear that he would have taken breaks, socialised and engaged in other recreational activities that he claimed he did.  He was in my view clearly exaggerating that he worked 15 hours of each day for 30 days of every month.  It was also noted that there was a lack of financial records to prove the income that he claimed he earned.  On the information before me, I will allow the plaintiff income in the sum of $15,000 per month that he would have earned driving his taxi.  It should be noted that it emerged in the course of the trial that the plaintiff operated a fleet of taxis.  During the relevant time, in 2010, the plaintiff operated a fleet of 5 taxis and I have no doubt that he managed and maintained the taxis which he rented to others.  As I have already indicated, I assess the appropriate period for sick leave to be 9 months.  I have determined that this is an appropriate period based on the evidence before me but in particular, given the nature of the injury, the reported improvement in his condition on treatment and the finding I have made that he has exaggerated his injuries by feigning his symptoms. I am prepared to award him loss of earnings for a period of 9 months which amounts to $135,000.

(b) Future loss of earnings

36.It was submitted that the plaintiff is 56 years of age and that he could have worked as a taxi driver until the age of 65. It was further submitted that with a discount rate of 1% the appropriate multiplier was 8.39.

37.It was submitted that I should allow for one month salary a year for the rest of the plaintiff’s working life.  It was suggested that the award should be $62,421.60 which was calculated by multiplying the sum of $7,440 by a multiplier of 8.39.  I do not understand the basis of this submission and why an allowance should be made of one month’s salary that the plaintiff is currently receiving as a property guard.  It would appear that with the rental of his taxi ($7,000 per month) together with the management of the other taxis he owns and operates, and the employment he has now taken up as a property guard, there is no loss of earning capacity.  In any event, I have found that the injury he suffered as a result of this accident did not have a lasting effect on him and did not prevent him from returning to work as a taxi driver.  I disallow the claim under this head.

(iii) Future medical expenses

38.It was submitted by Mr Lim that the psychiatric experts agreed that the plaintiff needed further treatment which Dr Lai suggested could be provided by the public health system, whereas Dr Ng suggested private treatment and on the basis of Dr Ng’s suggestion a general sum of $101,000 should be awarded.  This seems to ignore the overall assessment and opinion of the joint medical report as well as what was actually said by the doctors. I find no justification to award the general sum claimed.

(iv) Other special damages

39.Where liability has been established, a plaintiff is entitled to claim expenses properly and reasonably incurred by reason of the injury that has been found he has suffered as a result of the accident.  The 3^rd defendant does not dispute the sum of $8,470 for medical expenses, $35,550 for repair costs and fees of the taxi, and $3,333 for loss of use of the taxi.  The 3^rd defendant does dispute the claim for tonic food in the sum of $8,000 on the basis that no documentary or other evidence had been submitted to show that the plaintiff had actually incurred such an expense and that he suffered with minor physical injuries that would not require tonic food as a treatment.  Mr Lim submitted that the plaintiff was entitled to this sum because tonic food was normally awarded and the sum involved was modest.  I entirely disagree. The general measure of damages is to put the claimant in the position he or she was in immediately before the accident and therefore can claim no more than what he or she has lost or incurred.  Special damages are items of financial loss which can and should be appropriately quantified.  It is not a case of awarding a sum for a cost or expense because it was usually incurred.  It must be shown that it has been incurred.  I am not satisfied that the plaintiff had incurred cost for tonic food and accordingly I disallow the claim.  I award the sum of $47,353 under this head of damages.

Summary of award

40.On the basis of the foregoing reasons, therefore, the breakdown of the damages awarded to the plaintiff in this case is as follows:

Pain, suffering and loss of amenities	$175,000
Pre‑trial loss of earnings	$135,000
Post‑trial loss of earnings	Nil
Future medical expenses	Nil
Other special damages	$47,353
Total	$357,353

Interest

41.There will be interest on PSLA at 2% per annum from the date of the writ to the date of judgment together with interest on the award of pre‑trial loss of earnings and special damages at half of the judgment rate from the date of the accident to the date of the judgment.

Costs

42.There will be an order nisi that costs of this action are to be to the plaintiff, to be taxed if not agreed.

Mr Patrick D Lim, instructed by Li & Lai, for the plaintiff

Mr Jackson Poon, instructed by K B Chan & Co, for the 3^rd defendant