Chu Kwong Fu and Another v. Wonder Gold Investment Ltd
Read the full judgment text of HCPI 295/2014 on BabelCite. This High Court CFI judgment was delivered on 21 May 2015.
1. The claim of the 2 nd plaintiff has been settled on the second day of the damages assessment hearing so I will only deal with the personal injury claim of the 1 st defendant below.
Cited by 6 cases · Cites 4 cases
|
HCPI 295/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 295 OF 2014 _________________________ BETWEEN
_________________________
__________________________ ASSESSMENT OF DAMAGES __________________________ 1.The claim of the 2nd plaintiff has been settled on the second day of the damages assessment hearing so I will only deal with the personal injury claim of the 1st defendant below. I. BACKGROUND 2.The 1st plaintiff was the driver of a vehicle owned by the 2nd plaintiff. 3.At around 10am on 5 June 2012, a piece of building material fell off from the balcony of the defendant’s 2nd floor flat at Evergreen Villa and landed on the roof of the vehicle, breaking its front glass sunroof. The sun-shade sliding cover below the sunroof appeared intact and the falling material did not penetrate into inside the cabin. Only shattered glass fragments were found inside. 4.The 1st plaintiff was not physically injured in the accident. The 1st plaintiff’s case 5.The 1st plaintiff (“Mr Chu”) alleged that he was a driver employed by the 2nd plaintiff and that he was driving the vehicle at the time. 6.After the accident, the vehicle was sent for repair. As the 1st plaintiff has his own van-hiring business, he continued to be the driver for the 2nd plaintiff but was driving his own van (and occasionally another car belonging to the 2nd plaintiff) until the vehicle was repaired and collected around 22 June 2012. 7.The 1st plaintiff said he developed various psychiatric symptoms like anxiety and found it difficult to concentrate when driving. He left the employment on 20 July 2012 and went to consult a private psychiatrist, Dr Kwan Ka Lik, Felix on 27 July 2012. 8.Dr Kwan diagnosed Post-Traumatic Stress Disorder (“PTSD”) and prescribed anxiolytics, later changed to antidepressants and hypnotics. 9.He consulted Dr Kwan on 4 further occasions with no improvement. 10.Dr Kwan encouraged him to resume part-time driving duties but he met with a road traffic accident in early September, purported to be “because of his intense anxiety during work”. 11.Dr Kwan last seen him on 8 October 2012 when the plaintiff’s “mood was anxious, but not overtly depressed…no active psychotic symptoms and no suicidal thoughts…cognitive function intact…expressed intense fear with a sense of reliving the experience when driving in busy traffic or approaching the place where the accident happened…tried to maintain part-time work but had episodic anxiety and restlessness affecting his work performance…”. 12.Dr Kwan referred him to government psychiatric outpatient clinic. 13.The 1st plaintiff attended Tuen Mun Mental Health Clinic on 21 December 2012. He was diagnosed to be suffering from PTSD with a differential diagnosis of depression. He has received drug treatment as well as counseling from occupational therapist and clinical psychologist. He obtained a total of 98 days of sick leave from TMMH. 14.He informed the government psychiatrist that he “had no plan to resume work as he felt he was unable to drive and could not think of what other jobs he could do”. 15.The 1st plaintiff found work as a trainee car salesman since 25 September 2014. 16.The 1st plaintiff is claiming PSLA for his psychiatric condition, as well of loss of income, loss of earning capacity, as well as various past expenses (including repair costs of his own car in the road traffic accident) and future medical expenses. The defendant’s case 17.The defendant disputes that the 1st plaintiff was in the vehicle at the time of the accident, and he disputes that the 1st plaintiff has any psychiatric illness, loss of income etc. Assessing the evidence 18.I have already stated in Gurung Kamala v Hong Wei Limited DCPI 1660/2010 that :-
19.In the current case, the 1st plaintiff is alleging that he has suffered from a psychiatric illness. His complaints made to the doctors were, much like “pain and tenderness”, subjective complaints (eg depressed mood, suicidal thoughts, severe loss of energy, impairment of sleep, various anxieties and fears, “flashbacks” etc). 20.The DSM-IV diagnostic criteria used by both psychiatric experts, as discussed in great details in their expert report, are based upon such subjective complaints. 21.In claims where the diagnosis is based essentially upon subjective complaints (unlike, say, a claim for a wrist fracture which can be shown by objective evidence of a deformed wrist on examination and a fracture in an x-ray), the court must be aware that the credibility of the plaintiff is of utmost importance given the obvious self-interest of the plaintiff to make the claim. 22.Of course, finding of one or two small “symptom magnifications” or inaccuracies may be understandable and may not mean that the whole claim is bogus, but the court must tread carefully, the burden of proof being on the plaintiff to show that he has suffered such injuries. 23.The test I would look at, as in the Kamala case, is what a reasonable person under the circumstances would be expected to behave and if the plaintiff’s behavior conformed to that, and if not, whether there was any good reason to explain the plaintiff’s behavior. 24.The cross-examination of the 1st plaintiff has one very remarkable feature. 25.The 1st plaintiff admitted that he has only one bank account and his income would go into this account. 26.Mr Tang, counsel for the defendant, took the 1st plaintiff through the bank records and asked him to account for the deposits of HK$15,000 and above since 2011 up to 14 April 2015 (which was about 2 weeks before the hearing). 27.I was not counting but there must have been over 25 or 30 of such deposits so Mr Tang must have asked the same question that many times. The 1st plaintiff replied “I cannot remember” every single time (except on three deposits which he identified as bank loans), blaming bad memory due to his psychiatric illness, or that it happened too long ago etc. 28.In other words, he claimed that he could not remember a deposit into his bank account just two weeks ago. This, if true, would be a rather severe case of memory loss. 29.If a reasonable plaintiff has suffered any financial loss, I expect that he would expand every effort to investigate and would be at great pains to show the evidence to the court from his bank records and any other documents. If he has a bad memory, he has plenty of time before the trial to conduct investigations and collect evidence to bolster his memory. The last thing I expect him to do is to point to all the bank records and says, “I cannot remember”. 30.I note that the psychiatric experts did perform “cognitive” tests on the 1st plaintiff and found :-
31.Thus there was no finding of any severe loss of memory. 32.I also note that no doctor ever reported any findings of such severe loss of memory other than making reference to a “subjective complaint of memory decline”. 33.Of course, when Mr. Tang asked him why the vehicle was not collected after repair was completed on 21 June 2012, the 1st plaintiff was quite capable of remembering that on that day, he has to drive his employer to the studio for filming so he could only collect the vehicle the next day. 34.The only reason I can think of why the plaintiff should lie that he has “poor memory” and refused to answer the questions about his bank account was because he realised that the bank records would show that he has not suffered any, or any significant loss of income. 35.All these raise a big question on his credibility. II. PSLA 36.On analysis of the evidence, especially with the “contemporaneous” police statement of the 1st plaintiff and the security guard, I find that the 1st plaintiff was likely to be inside the vehicle at the time of the accident. 37.But this does not help the court to decide whether the plaintiff has actually suffered from any psychiatric injury caused by the accident. 38.I have to be careful: the fact that the 1st plaintiff was not credible regarding his financial loss under cross-examination might not necessarily mean that any diagnosis based on subjective complaints like psychiatric injury was bogus. 39.One may consider that if a plaintiff is a “rising star” earning a good salary, it is less likely for him to give up his work to fake an injury since he would be taking a big financial and career risk. However, this is not such a case and, as discussed above, I do not find that there is any, or at least any significant, financial loss suffered by the 1st plaintiff. 40.One may also consider that it may be less likely for a plaintiff to undergo lengthy medical treatment (consultations, expensive referrals to eminent experts in the field, painful surgical procedures or prolonged medications etc) if the injury is completely bogus. This, of course, is not a “real or fake” test and certainly, there is no reason why any determined “scamster” should not be tempted to do just that. The 1st Plaintiff’s case is that he has undergone lengthy consultations and medications (assuming that he really has been taking them and not just lying about his “drug compliance”). 41.Nevertheless, in a case where the diagnosis of the claimed injury by the doctors and experts is based upon subjective complaints, once it is established that the plaintiff has significant questions on his credibility, it will be an extremely difficult, if not impossible and meaningless task for the court to discuss the diagnosis because of the degree of speculation involved. I recall the words used by research scientists which may aptly apply in such situations, “Rubbish in, rubbish out.” In other words, if the accuracy of the “input data” is questionable, the “conclusion” drawn from such data must also be equally questionable. 42.The court is assisted by the case of Joan Carol Boivin v Wong Kin Yiu & Anor (unrep) HCPI 195/2000 where Suffiad J. stated that what was important was the condition of the plaintiff accepted by the court and not how his condition was termed medically: -
43.What the court accept in the current case is that whatever mental condition that the plaintiff may have, if any, it has no significant effect on his earnings. 44.It follows that it does not matter what the experts termed this mental condition medically, I find that the effect of this on the plaintiff must be mild, if any. 45.In Hung Chor Chuen v Pang Koon Wai and others HCPI 294/2003, the award for PSLA for “pure” psychiatric damages in a case of PTSD was HK$250,000. 46.On the assumption that the 1st plaintiff has actually suffered some mild mental condition, I would deduct the award in the Hung’s case by 80% and award HK$50,000 under this head of claim. III. PRE-TRIAL LOSS OF EARNINGS 47.I have stated at length above regarding how I find the 1st plaintiff’s claimed “poor memory” not credible and how this shows that his has not suffered any demonstrable loss of earnings. 48.There are other supports for this finding. 49.Firstly, the 1st plaintiff claimed that he was employed by the 2nd plaintiff as a driver. 50.However, there was no evidence of any written contract, MPF contribution, employee’s insurance or employee’s compensation claim. 51.The 1st plaintiff claimed that there was an “oral” contract but he was rather vague about the terms regarding working hours and holidays etc. His claimed monthly salary varied from HK$13,000 to HK$15,000 in various documents produced. 52.The only document produced by the 2nd plaintiff purported to show this employment was a hand-written note which the 1st plaintiff agreed was not contemporaneous and, of course, the 2nd plaintiff did not attend court to verify it. 53.Secondly, for the 1st plaintiff’s claim about his “logistic” business, he was exceptionally vague about the nature of this business. He has owned a “Hyundai H1” which he at times called a “goods van” and at others, a “luxury 7-seater”. 54.However, from his evidence, it was obvious that the H1 was “spec-out” to be a luxury 7 seater and he admitted that he did not take out any car seats to convert it into a proper “goods van”. 55.He also said when he hired out the H1, he was the only one to drive it. 56.Besides this, the 1st plaintiff did not elaborate in any great details about any other alleged “logistics” business (when he claimed that he needed not drive but just to “arrange”) and how he got paid except that client wired the cash directly into his bank account, which he claimed that he did not check and (because “the payments were highly variable” and “he had poor memory” etc.) could not account for them in the bank records. 57.This alleged “side business” also contradicted with the government psychiatrist’s report that the 1st plaintiff “had no plan to resume work as he felt he was unable to drive and could not think of what other jobs he could do.” 58.I do not accept that the 1st plaintiff has any other job or business other than being a hired driver at the relevant time. 59.I find it entirely possible that the 1st plaintiff has worked as a hired driver for the 2nd plaintiff on a “on hire” hourly basis (but was asked to drive the 2nd plaintiff’s car instead of the H1 before the accident) and he continued to be hired as a driver driving his own “goods van” / “luxury 7 seater” for passengers after the current accident. As such, I can only speculate that the 1st plaintiff has wished to claim that his H1 was a “goods van” in a “logistics business” just to bypass any problems with regulations and insurance cover etc. regarding hiring out driven cars for passengers. 60.In any case, such “possibilities” does not concern the current case, and whatever business and whichever way the 1st plaintiff has been running it, I find that he has suffered no significant loss of income caused by the alleged psychiatric injury. IV. LOSS OF EARNING CAPACITY 61.Accordingly, I would not award any loss of earning capacity. V. FUTURE LOSS OF EARNINGS 62.There is also no award for future loss of earnings. VI. FUTURE MEDICAL EXPENSES 63.As the court find that the 1st plaintiff has not actually suffered any serious condition, there is no award under this. VII. SPECIAL DAMAGES 64.The plaintiff is claiming medical expenses of HK$11,080, travelling expenses of HK$1,000 and car repair costs for his own car for the second road traffic accident of HK$6,600. 65.Despite the findings above, I will give the 1st plaintiff the benefit of the doubt that he has some mild mental condition and so I will award HK$11,080 as his medical expenses and HK$1,000 as travelling expenses. 66.However, I will not award the costs of repair for his car. I am not convinced that this accident was caused by any mental condition that he has. VIII. SUMMARY 67.I summarise the above awards as follows:
IX. INTEREST 68.I would award interest on general damages at 2% per annum from date of writ to date of Judgment, and on special damages from date of accident to date of Judgment at half Judgment rate. X. COSTS 69.I would also give an order nisi for the costs of the action to be paid by the defendant to the 1st plaintiff to be taxed if not agreed in the District Court scale and the 1st plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.
Representation: Ms Ann Lui, instructed by Kenneth Lam, for the 1st and 2nd plaintiffs Mr Leon Tang, instructed by Jal N. Karbhari & Company, for the defendant |
Cases cited in this judgment