Yuen Wai Yip Gavin and Another v. Leung Chi Shing

DCPI 1426/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 1426 OF 2014

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JUDGMENT

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Introduction

1.This is about the assessment of damages for the 2^nd plaintiff relating to the injuries she suffered as a result of a traffic accident occurred on 3 July 2011.  On 8 July 2015, I awarded a total of $65,000 to her which consisting of general damages ($50,000) and special damages ($15,000) together with interests and costs.  I said that reasons would be handed down in due course.  This I now do.

Issues

2.The 2^nd plaintiff was the pillion passenger of a motorcycle driven by the 1^st plaintiff. The defendant who caused the accident was the driver of a private car.  The facts of the traffic accident are no longer important as the defendant has admitted liability with an interlocutory judgment entered on 16 July 2014.  As regards the claim of the 1^st plaintiff against the defendant, it was settled on the day before the assessment.

3.Moreover, the 2^nd plaintiff and the defendant have agreed on the amount of special damages at $15,000.  Therefore, the only issue before the court was the amount of general damages under the head of pain, suffering and loss of amenity (PSLA).  The 2^nd plaintiff asked for $80,000 but the defendant said it should be no more than $10,000. 

The evidence

4.The 2^nd plaintiff relied on (i) her witness statement which was clarified and supplemented by her oral evidence in court; (ii) the medical notes of the Accident and Emergence Department of Queen Elizabeth Hospital (“the Medical Notes”) concerning her condition immediately after the accident; and (iii) the Physiotherapist Report (“the Report”) prepared by her private treating physiotherapist.  The defendant called and adduced no evidence for the assessment. 

5.According to the Medical Notes, the 2^nd plaintiff was reported to have felt pain over her right hip, left knee and left elbow.  No bone fracture was shown after X-ray examination.  The provisional diagnosis was contusion to right hip, left knee and left elbow.  There was also left knee abrasion[1].  She was given analgesics and was discharged on the same day.

6.The 2^nd plaintiff was aged 38 at the time of the accident and is now aged 42.  According to her, on the day following the accident she still felt pain over the injured sites. Therefore, she consulted a private doctor, Dr Sammy Lee, and received following up consultation from the latter regularly up to 28 August 2011[2].  Dr Lee referred the 2^nd plaintiff to receive physiotherapy[3] and therefore she received a total of 15 sessions from Victor & Partners at their branches at Causeway and Admiralty from 4 July 2011 and 27 October 2011[4].  Although the 2^nd plaintiff said in her statement that she had been given sick leave for two months from 4 July 2011 to 4 September 2011, she clarified in court that she had in fact returned to work a week after the accident, as her employer would not allow her to have such a long sick leave.  She said, however, that she still asked for sick leave certificates from Dr Lee after she had returned to work in order to show her employer that she needed to attend physiotherapy and on occasions had to leave early for that purpose.  Although the 2^nd plaintiff has changed jobs since the accident, she has always been working as an account clerk. 

7.The 2^nd plaintiff said that before the accident she was in good health.  As a result of the accident, she suffered acute intermittent and deep stretching pain over neck and shoulder area, aggravated by forward or side bending of neck; acute intermittent ache over both elbows, aggravated by palpation; acute intermittent ache over both hips, aggravated by walking; acute intermittent pain over right ankle, aggravated by walking, going upstairs and downstairs; and acute intermittent and deep pain over left ankle, aggravated by walking, going upstairs and downstairs.  At present, she suffers residual pain on her neck and shoulder region.  She will suffer dull ache and stiffness in her neck after keeping the same neck posture for over 30 minutes and she will need to take a rest.  She said her neck condition has adversely affected her job performance as she needs to take more frequent rests.  She said that she also suffers ache and discomfort over her right hip after prolonged walking say, for over an hour.

8.When she was cross-examined as to the absence of any reference to neck pain or injury in the Medical Notes or the referral letter by Dr Lee[5], she said that she started to experience neck pain on the day of the accident after she had returned home from hospital.  Before that, she did not have any neck pain.  When asked about the comments in the report that her present neck pain could be related to her poor sitting posture at work, she answered that she has done her best to keep a proper posture but she will still suffer neck pain after prolonged work and that she has followed the physiotherapist’s recommendation to do neck stretches regularly.  She said that she has not consulted Dr Lee now relating to the injuries and she no longer requires physiotherapy. 

9.According to the Report, as at 19 October 2011 the 2^nd plaintiff’s pain over neck and scapular area was said to have much decreased and that her pain over elbows, hips and ankles have subsided.  An objective examination of the 2^nd plaintiff showed that there was residual mild tenderness over bilateral cervical muscles, but the tenderness over hips, elbows and ankles had subsided.  It was said that overall the 2^nd plaintiff showed well progress and complete recovery over bilateral elbows, hips and ankles, without any pain during either walking or stairs walking.  On the other hand, the neck pain deceased with improvements shown in both subjective and objective examinations and it was mainly provoked after prolonged computer work.  This could be related to poor sitting posture.  She was advised to do neck stretches regularly and was given postural education. 

Consideration

10.Mr Ng for the defence submitted 3 points:-

(i) the injuries sustained by the 2^nd plaintiff were minor and she has fully recovered.  As soon as PSLA is concerned, nothing was said in her witness statement as to show how her daily life and hobbies, if any, have been affected by the injuries;

(ii) there is no medical evidence to show that the neck injury was caused by the accident; and

(iii) even assuming that the neck injury was caused by the accident, it is likely that it had completely healed and that her present neck problem is, as stated in the Report, due to poor posture rather the accident.

11.As regards (i), based on the evidence before me, I accept and I find that the injuries of the 2^nd plaintiff cannot be said to be serious.  Moreover, she has fully recovered from some of those.  In this regard, I note that she has no present complaints about her elbows and ankles.  As far as general damages (PSLA) are concerned, I note that she had taken 7 days sick leave before returning to work.  Moreover, the neck pain apart, four years after the accident she is still complaining about hip pain and discomfort after prolonged walking.  It is reasonable to infer that she must have suffered some inconvenience in her daily activities.  Nevertheless, as she said, she no longer requires any medical attention or treatment. 

12.As regards (ii), Mr Ng does not deny that the 2^nd plaintiff suffered neck pain.  His submission is that there is no evidence to show that her neck problem was caused by the accident.  With respect, I am unable this submission.  The 2^nd plaintiff said that she had no neck problem before the accident and there is no reason for me to doubt this.  I have not ignored the fact that the 2^nd plaintiff is no medical expert and her evidence as to the cause of her neck pain cannot be given too much weight.  However, given the proximity of time and in the absence of any evidence to the contrary, the inherent probability is that the neck pain which she began to experience shortly after the accident was related to and caused by the accident.  The fact that the Medical Notes contains no reference to any neck injury or pain is, in my view, neutral.  It is clearly stated in the Medical Notes that the diagnosis by the Accident and Emergency Department was only “initial” and “provisional”.  It is also not uncommon that there may be injuries sustained in an accident which are not apparent or noticed immediately.  On the other hand, the Report shows that as early as the day after the accident there was a record of tenderness over the 2^nd plaintiff’s neck and scapular region when the 2^nd plaintiff was subject to subjective and objective examinations.

13.As regards (iii), the Report says that the residual mild tenderness over the 2^nd plaintiff’s bilateral cervical muscles, which was mainly provoked after prolonged computer work as required by her job, “could be related to [her] poor sitting posture at work”.  By that, I do not understand the physiotherapist to mean that the accident was not a cause to the neck pain altogether.  I understand the physiotherapist to mean that the 2^nd plaintiff’s poor sitting posture could be a cause, though not necessarily the sole cause of the residual neck pain. 

Findings

14.Based on all of the above, I am satisfied and I find that the 2^nd plaintiff has proved on balance of probabilities that:-

(i) the injuries which the 2^nd plaintiff suffered cannot be said to be serious;

(ii) she was granted 2 months’ sick leave but she chose to return to her work after having rested for 7 days;

(iii) after 15 sessions of physiotherapy, the condition of the 2^nd plaintiff had improved substantially;

(iv) the traffic accident was a contributing cause to her present neck pain; and

(v) the pain (including neck and hip pain) which the 2^nd plaintiff is still suffering is not likely to be serious, at least not serious enough to require medical attention or treatment.

Assessment

General damages

15.Ms Chu for the 2^nd plaintiff referred me to the following cases on assessment of damages:-

Chan Mei Ling v Wong Wing Kwong[6]

Lo Yim Fong v Ho Po Yin & Anor[7]

So Cho Yin v MTR Corporation Ltd[8]

16.Mr Ng for the defendant referred me to the following cases:-

Wong Shing Kam & Anor v Leung Ming Kwong[9]

Cheung Yu Tin Alvin v Ho Hon Ka[10]

17.I recognise that it is in the interest of justice and the public interest that there should be some consistency in the court’s approach regarding assessment of damages, so that similar amounts should be awarded for similar cases.  On the other hand, I remind myself that previous decisions on assessment of damages are of reference value only and they are not supposed to the strait-jackets to be followed regardless of the facts of the case before court.  Also, when considering older cases, the court should take into account the effect of inflation over the years and any other societal changes which may be relevant.

18.The 2^nd plaintiff has not produced any expert medical report and there are no photographs showing her injuries.  Having considered the facts of the present case and the case authorities cited by the parties, especially Chan Mei Ling v Wong Wing Kwong and the cases quoted at paragraph 37 of that judgment[11] (some of which already referred to by the parties), doing the best I can I am of the view that the general damages for the 2^nd plaintiff for PSLA should be $50,000.

Special damages

19.As aforesaid, the amount of special damages is agreed at $15,000.

Interests

20.The general damages shall carry interest at the rate of 2% per annum from 27 June 2014 (date of the writ) to 8 July 2015 (when the award is made) and thereafter at the judgment rate until full payment.

21.The special damages shall carry interest at the rate of 4% per annum from 3 July 2011 (date of the accident) to 8 July 2015 and thereafter at the judgment rate until full payment.

Costs

22.At my request, Ms Chu prepared a statement for the purpose of summary assessment of the 2^nd plaintiff’s costs.  Ms Chu claimed a total of 11 hours and 45 minutes for her work at the hourly rate of $2,600 which is the “standard” rate of a solicitor of 10 years professional standing or above.  I note that Ms Chu has over 20 years of post-admission experience and she was the only fee-earner mentioned in the statement.  Besides legal costs, there were also claims for filing fees of $3,000 and reimbursement of $70 for the Medical Notes.

23.Mr Ng had no qualms about the total time spent.  However, he queried that the 2^nd plaintiff’s case could have been handled by someone with less experience than Ms Chu.

24.I have regard to the general principles stated at paragraph 62/App/22 of Hong Kong Civil Procedure 2015.  I see no question why the 2^nd plaintiff should not have an experienced solicitor of at least 10 years’ professional standing experience to handle her case.  Moreover, Ms Chu was not claiming any mechanical tasks which could be delegated to a more junior colleague.  There being no dispute about the total time spent, I allowed the whole of $33,620 and this is the amount which the defendant has to pay to the 2^nd plaintiff as her costs.

Ms Anne Chu of So, Lung & Associates, for the 2^nd plaintiff

Mr Michael C W Ng of Liu, Chan & Lam, for the defendant