A A
B B
DCPI 2179/2015
[2019] HKDC 29
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E PERSONAL INJURIES ACTION NO. 2179 OF 2015 E
___________________________
F F
G G
BETWEEN
H
NG YUEK LANG SOPHIA Plaintiff H
and
I I
CHIU KING WA Defendant
J J
___________________________
K K
Before: His Honour Judge Edmond Lee in Court
L Dates of Hearing: 20 September 2017 and 19 October 2017 L
Date of Handing Down Assessment of Damages: 11 January 2019
M M
___________________________
N N
O
ASSESSMENT OF DAMAGES O
___________________________
P P
Background
Q Q
1. The plaintiff sustained personal injuries in a traffic accident
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on 16 May 2014 (“the Accident”). She was travelling on board a taxi which
S was involved in a collision with another taxi and a private vehicle. S
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2. The defendant, being the driver of the private vehicle and
C responsible for the Accident, was subsequently convicted of “Careless C
Driving” and “Driving a vehicle with alcohol concentration in breath
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exceeding the prescribed limit” on 17 June 2014.
E E
3. The plaintiff, by a writ of summons filed on 6 October 2015,
F F
commenced the present proceedings against the defendant for damages
G with interests and costs. On 3 December 2015, by consent of the parties, G
judgment on liability was entered for the plaintiff against the defendant,
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with damages to be assessed.
I I
4. The plaintiff was born on 14 August 1974 and was aged 39 at
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the time of the Accident. She is a single mother taking care of her son
K (DOB: 5 April 2012) who was 2 years old at the time of the Accident. She K
received Form 5 education and used to work as waitress/saleslady for about
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5 years and receptionist/clerk for about 10 years. She quitted her job in
M February 2012 when she was pregnant and then spent her time taking care M
of her son. She was not employed and was dependent on Comprehensive
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Social Security Assistance at the time of the Accident.
O O
5. As a result of the Accident, she applied for and was granted
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TAVAS allowance totalling HK$52,590.
Q Q
Plaintiff’s injuries and treatment received
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S 6. Shortly after the Accident, the plaintiff was taken by S
ambulance to the Accident and Emergency Department of the Queen
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Elizabeth Hospital. She complained of severe neck pain and back pain.
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She was found to have tenderness on the back of her neck and her lower
C back and abrasion wound on right knee. She was admitted to the hospital C
for treatment and discharged on the same day.
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E 7. After discharge from the Queen Elizabeth Hospital on 16 May E
2014, the plaintiff went to the Hong Kong Sanatorium and Hospital on the
F F
same day. She was found to have mild occipital and neck tenderness and
G was given a soft neck collar, analgesics and a week of antibiotics. MRI of G
cervical spine was done on 19 May 2014 which revealed minimal posterior
H H
bulging of C3-4 disc without fracture or cord injury. She was advised to
I wear soft neck collar for 3 days and take oral and topical analgesics. Sick I
leave was granted from 16 May 2014 to 18 May 2014.
J J
K 8. The plaintiff had a history of mental problem as early as in K
2004. She was first seen at Western Psychiatric Center in December 2004
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and was diagnosed to have panic disorder. She was treated with
M antidepressant and her mental state was stabilized. She was then followed M
up at the Department of Psychiatry of the Pamela Youde Nethersole
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Eastern Hospital in May 2009. She defaulted follow-up from January 2010
O to June 2012, except that she attended once in June 2010. After the O
Accident, when attending a consultation on 29 May 2014, the plaintiff said
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that she was anxious, felt short of breath and had recurrent nightmare of
Q the Accident. Q
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9. The plaintiff was referred by the Psychiatry Department to the
S Department of Orthopaedic & Traumatology of the Pamela Youde S
Nethersole Eastern Hospital. She attended the out-patient clinic on 17
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September 2014. She was diagnosed to have neck and back sprain injury
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with C3/4 disc bulging, L4/5, L5/S1 and S1/2 disc protrusion. Sick leave
C was granted from 17 September 2014 to 4 February 2015, and later up to C
24 June 2015.
D D
E 10. The plaintiff started physiotherapy treatment on 17 October E
2014. She complained of neck and low back pain as well as decrease in
F F
range of movement of her neck and back. Neck care, mobilization and
G stretching exercises for her neck, back care, mobilization, stretching and G
stabilization exercises, passive mobilization and hot pack to back were
H H
included in the rehabilitation programme. She completed 5 sessions but
I defaulted 6 sessions. She was last seen on 16 December 2014 and I
defaulted thereafter. She started another programme on 12 May 2015. She
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complained of right side low back pain, decrease in range of movement of
K back. Back care, mobilization, stretching and stabilization exercise were K
provided. She attended 4 sessions but defaulted 3 sessions.
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M 11. On 22 January 2015, the plaintiff first attended the M
Occupational Therapy Department of the Pamela Youde Nethersole
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Eastern Hospital for work rehabilitation service. She complained of
O tenderness over her neck, right shoulder and back at movement, as well as O
numbness over right upper and lower limbs. Vocational counselling was
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provided but it was noted that she was unemployed for the last 2 years. She
Q was suggested to try a part-time home helper job which was referred by the Q
Social Welfare Department. The work capacity demonstrated during the
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assessment did not match the demands of home helper due to her fair right
S hand endurance to cope with cleaning and lifting tasks. She was S
recommended to try a course of work hardening. Home exercise of neck
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and back was suggested.
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C Joint medical examination by orthopaedic experts C
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12. The plaintiff was examined by two orthopaedic experts, Dr
E Lam Kwong Chin instructed by the plaintiff and Dr Kwok Hau Yan E
instructed by the defendant, on 23 May 2016 and a joint medical report
F F
dated 27 July 20161 was prepared.
G G
13. Physical examination on the date of joint medical examination
H H
revealed that the plaintiff could walk in a normal gait unaided, could squat
I fully without requiring support to rise, could sit without apparent distress I
for 45 minutes and rise smoothly. There was no external deformity,
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swelling or scar on the plaintiff’s neck. The neck movement was fair and
K the plaintiff complained of pain at end of range and worst at extension. K
Loss of cervical lordosis was noted. For the upper limbs, there was no
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external deformity, swelling or scars with no significant asymmetrical
M muscle wasting or spasm. For the back, there was no external deformity, M
swelling or scar and no loss of lumbar lordosis. The plaintiff complained
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of diffuse tenderness at midline and bilateral paraspinal muscles from
O upper thoracic to lower sacrum. Back movement was fair. The plaintiff O
complained of pain at end of range as well as increase in back pain on right
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shoulder elevation. For the lower limbs, there was no length discrepancy
Q and no significant asymmetrical muscle wasting or spasticity. Q
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14. X-rays of the cervical, thoracic and lumbar spine revealed lost
S in cervical lordosis with reversal at C4/5 level. There was lumbarization S
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1
[144-170] of Bundle A
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of L1. The L5/S1 disc was narrowed. There was no evidence of
C spondylolysis or recent fracture. X-ray of both legs revealed no bony C
deformity or residual sign of fracture and no abnormal soft tissue swelling
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or calcification with normal bony density and bony alignment.
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15. Both experts, Dr Lam and Dr Kwok, agreed that:-
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G (a) The plaintiff had head/occiput concussion, neck sprain/ G
contusion, back sprain/contusion, and abrasion of left elbow,
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right knee and both shins.
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(b) The injuries were at soft tissue level with no suggestion of
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gross bony damage or neurological deficit.
K K
(c) The cervical MRI showed that C4-5 disc space was slightly
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narrowed, with minimal posterior bulging and loss of lordotic
M curvature. M
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(d) Lumbar MRI showed that facet hypertrophy at L3/4, L4/5 and
O L5/S1 level was pre-existing and degenerative in origin. MRI O
also showed relative mild disc protrusions at L4/5, L5/S1 and
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S1/2 levels and the annular tear at S1/2. Such changes in
Q multiple discs were usually degenerative in origin, rather Q
common in the population and could be asymptomatic.
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S (e) The medications, physiotherapy and occupational therapy S
given to the plaintiff were standard and appropriate. Her
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physical condition was stable. Orthopaedically, she could be
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considered as having reached maximal medical improvement
C from the Accident. C
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16. Dr Lam and Dr Kwok, however, had differences in opinion
E on:- E
F F
(a) For the C4/5 disc change, Dr Lam opined that it was
G compatible with the whiplash injury of the Accident and could G
account for the sever and persistent neck pain. Dr Kwok
H H
opined that it could happen as part of pre-existing changes
I because the trivial nature of the plaintiff’s injury was not I
compatible with a disruptive disc lesion or intervertebral disc
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change which could only happen in patient which significant
K neck injury together with changes of the signal of the disc or K
spinal cord which was not present in the plaintiff’s case.
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M (b) In respect of working capacity and prognosis, Dr Lam M
commented that, as most workers with neck or back injury but
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no substantial structural damage or neurological deficit could
O still return to work, the plaintiff should be able to have lighter O
jobs such as waitress, saleslady, clerk or part-time domestic
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helper. However, she would be adversely affected by the
Q residual neck or back symptoms upon prolonged working, Q
exertion or weight bearing and her working efficiency and
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endurance and hence her employment opportunity would be
S seriously affected. Dr Kwok commented that the residual S
back and neck symptoms should be minimal and should not
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affect her physical function significantly.
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C (c) Dr Lam’s assessment of the plaintiff’s impairment of whole C
person and loss of earning capacity were both 11% whereas
D D
Dr Kwok’s assessment of the impairment of whole person and
E loss of earning capacity were both 1 to 1.5%. E
F F
Joint medical examination by psychiatrists
G G
17. The plaintiff was examined by two psychiatrists, Dr Benjamin
H H
Lai instructed by the plaintiff and Dr David Tsai instructed by the
I defendant, on 1 December 2016 and a joint psychiatric report dated 5 I
January 20172 was prepared.
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K 18. Dr Lai noted that the plaintiff was mentally stable prior to the K
Accident in May 2014 and diagnosed that she suffered increased
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psychiatric symptoms and Post Traumatic Stress Disorder symptoms in the
M form of nightmares of the Accident and she was likely suffering from M
minor residual psychiatric symptoms. Dr Tsai opined that whatever
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negative impact induced by the Accident was very short-lived, the plaintiff
O rapidly responded to treatment and there was no substantial enduring O
consequence.
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Q 19. On the question of further treatment, Dr Lai advised that the Q
plaintiff could continue treatment in public psychiatric clinic once in 6 to
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8 weeks and the cost per session was about $200. The likely cost of similar
S treatment with 4 weeks of medication in the private sector was about S
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2
[171-220] of Bundle A
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$2,000 per session. It was likely that she required another 6 months of
C psychiatric treatment. Dr Tsai advised that no further treatment as C
pharmacotherapy was required and she should continue to be under the
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care of public psychiatric service as there was no additional benefit in
E shifting to the private sector. E
F F
20. In respect of permanent impairment of whole person and loss
G of earning capacity based on the likely psychiatric condition as a result of G
the Accident, Dr Lai’s assessment was about 1 to 2%. Dr Tsai found no
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permanent impairment or loss of earning capacity on psychiatric ground.
I I
Quantum of damages
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K 21. The plaintiff revised the figures at the end of the hearing and K
now seeks total damages of HK$786,051.30. The defendant suggests
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HK$99,360 to HK$119,360. Their respective cases are as follows:-
M M
Plaintiff (HK$) Defendant (HK$)
N N
PSLA 450,000 80,000 - 100,000
O Loss of Earning 150,000 nil O
Capacity
P P
Special Damages 128,611.30 19,360
Q Q
(medical, travelling,
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etc.) R
Future Expenses 57,440 nil
S S
Total: 786,051.30 99,360 - 119,360
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Pain, suffering and loss of amenities (“PSLA”)
C C
22. In simple terms, what happened in this case, which was not in
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dispute, was that the plaintiff was the victim of a car accident. She was the
E back seat passenger of a taxi which was hit by the private car driven by the E
defendant who was drunk and driving carelessly. The taxi which the
F F
plaintiff was in was then pushed sideward and then collided with another
G taxi. As a result, the plaintiff suffered neck and back injuries. In specific G
terms, as agreed by the orthopaedic experts, they were neck and back
H H
sprain/contusion at soft tissue level with no suggestion of gross bony
I damage or neurological deficit. The plaintiff was treated by medications, I
physiotherapy and occupational therapy, which were considered to be
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standard and appropriate by the experts who opined that the plaintiff had
K reached maximum medical improvement at the time of the joint K
examination, which was about 2 years after the Accident.
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M 23. The plaintiff complained, after the Accident, that she had neck M
and back pain and stiffness, headache, limitation of range of movement of
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back. She felt back pain when bending down or raising hands. She had
O difficulty in carrying heavy objects and having prolonged standing, O
walking and sitting. She also complained of anxiety, depression, insomnia,
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nightmares and flashback of the Accident.
Q Q
24. Both orthopaedic experts agreed that the cervical MRI
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showed that the plaintiff’s C4-5 disc space was slightly narrowed, with
S minimal posterior bulging and loss of lordotic curvature. For the C4/5 disc S
change, Dr Lam for the plaintiff opined that it was compatible with the
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whiplash injury of the Accident and could account for the severe and
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persistent neck pain. Dr Kwok for the defendant opined that it could
C happen as part of pre-existing changes in view of the trivial nature of the C
plaintiff’s injury.
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E 25. Though the plaintiff was not working at the material time, she E
was given intermittent sick leave for more than a year. As early as on 24
F F
June 2015, the orthopaedic doctor at the Pamela Youde Nethersole Eastern
G Hospital certified that the plaintiff was then incapacitated to work and the G
disability was expected to last for a year3. Dr Lam, in view of the severity
H H
of the symptoms of the plaintiff, endorsed such sick leaves. Dr Kwok, on
I the other hand, opined that sick leave in the region of 3 to 4 months would I
be justified on the orthopaedic aspect4.
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K 26. I am prepared to accept Dr Lam’s opinion that the plaintiff K
suffered a whiplash injury of the Accident and that could account for her
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severe and persistent neck pain. This is consistent with the fact that the
M plaintiff whilst inside the taxi had been first hit by the defendant’s vehicle M
and then collided with another vehicle 5 as well as the plaintiff’s own
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version that she was hit on both sides inside the car compartment and had
O temporarily lost consciousness6. It is noted that, at the time of the joint O
examination, the forward flexion, backward extension and sideward
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flexion of the plaintiff’s neck and back were all less than the normal range . 7
Q It was 2 years after the Accident and the plaintiff was still complaining of Q
residual neck and back pain. Even Dr Kwok for the defendant accepted
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S S
3
see para. 102 of the joint medical report at [167] of Bundle A
4
see para. 103 and 104 of the joint medical report at [167-168] of Bundle A
T 5
see para. 1 and 2 of the Statement of Claim at [4-5] of Bundle A T
6
see para. 5 of the plaintiff’s witness statement at [124] of Bundle A
7
see para. 53 and 55 of the joint medical report at [155-156] of Bundle A
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that sick leave of 3 to 4 months would have been justified. The injuries of
C the plaintiff could hardly be described as “trivial” or “minor”, as Dr Kwok C
did in the joint medical report.
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E 27. I have considered but do not accept the defendant’s criticism E
of the plaintiff’s complaints of neck and back pain being inconsistent with
F F
the medical or documentary evidence. It was argued by the defence that if
G the plaintiff indeed suffered pain as claimed, she should have attended G
medical or physiotherapy treatment more frequently and more regularly
H H
instead of defaulting some of the scheduled treatment. That criticism
I ignored the fact that the plaintiff was a single mother having sole care of I
her 2 or 3 years old son at the material times. It is noted that, as early as
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on the date of the Accident, the plaintiff requested discharge from hospital
K on the same day as she had to go home to take care of her child8. K
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28. On the psychiatric aspect, it is not in dispute that the plaintiff
M had history of mental illness and had been receiving psychiatric treatment M
since 2004. Dr Lai for the plaintiff diagnosed that she suffered increased
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psychiatric symptoms and Post Traumatic Stress Disorder symptoms in the
O form of nightmares of the Accident and she was likely suffering from O
minor residual psychiatric symptoms. Dr Tsai opined that, whatever
P P
negative impact induced by the Accident was very short-lived, the plaintiff
Q rapidly responded to treatment and there was no substantial enduring Q
consequence.
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S S
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8
see para. 20 of the joint medical report at [148] of Bundle A
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29. I am prepared to accept Dr Lai’s opinion to the extent that the
C plaintiff had suffered on the psychiatric aspect as a result of the Accident. C
This is consistent with the fact that the plaintiff voluntarily sought
D D
psychiatric help from her psychiatrist at the Pamela Youde Nethersole
E Eastern Hospital on 29 May 2014, i.e. 2 weeks after the Accident, and that E
was well before her next scheduled appointment with the psychiatrist on
F F
19 June 20149. She was prescribed with more psychiatric medication than
G usual. It is also noted that the plaintiff had experienced pregnancy and then G
spontaneous abortion/miscarriage for a time span of about 2 months. The
H H
plaintiff must have experienced additional stress as she specifically
I enquired with her psychiatrist about the effects of her painkillers and other I
medication on the fetus10.
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K 30. The plaintiff seeks to rely on the following cases and argues K
that the damages for PSLA should be HK$450,000.
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M (a) In Lee Yu Hey v Yuen His Carl [2012] HKEC 1483, the M
plaintiff was a 41-year-old driver who was injured in a traffic
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accident when his private vehicle was hit by the vehicle driven
O by the defendant. On examination, there was pain over O
lumbosacral spine with decreased motion range of the back.
P P
Straight leg raising test on the right side was limited and there
Q was mild weakness of the right great toe motion. X-ray Q
examination of the lumbar spine showed decreased
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intervertebral space of the L4/5 level, etc. There was
S persistent symptom after the physiotherapy. MRI of the S
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9
see consultation summary at [273] of Bundle B
10
see consultation summary at [275] of Bundle B
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lumbar spine showed protrusion of the intervertebral disc at
C the L5/S1 level. Since his activities of daily living was very C
much affected, he was admitted for a spinal operation of
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discectomy of the L5/S1 intervertebral disc and was
E hospitalized for 4 days. The Court awarded $450,000 for E
PSLA and discounted it by 20% due to pre-existing
F F
degenerative condition.
G G
(b) In Tam Wai Tuen v Seiko Screw Manufactory Ltd. HCPI 383
H H
of 2008, the defendant was injured at work and hurt his back.
I He was 53 years old at the time of the accident. The court I
award $250,000 for PSLA.
J J
K (c) In Lau Koon Loi v Wong Wai Sing and anor HCPI 445 of 2007, K
the plaintiff claimed for damages after a traffic accident. He
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complained of neck stiffness, neck and shoulder movement
M restricted due to chest pain, right knee pain, pain when M
breathing and post-concussional headache and dizziness.
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From that MRI study, it was seen that there was disc
O protrusion at C5/6 level causing slight narrowing of the spinal O
canal and slight indentation on the anterior surface of the
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cervical cord. Degenerative changes were also identified at
Q C5/6 junction endplates. The plaintiff was still suffering Q
residual pain almost 7 years after the accident. He had also
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suffered adjustment disorder and erectile dysfunction. The
S court considered that the plaintiff’s case was just below the S
lower end of the serious injury category and awarded
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$400,000 for PSLA.
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C (d) In Chan Tak Chi v Wong Siu Tao, HCPI 1223/1996, a 29-year- C
old man was injured in a traffic accident and sustained
D D
fracture to C5 spine and the right side facet, 5 cm laceration
E to left parietal area of the head, and multiple abrasions. He E
was hospitalized first for 13 days for placing in a Halo ring
F F
with body jacket, then another 5 days for removal of the Halo
G ring and body jacket. He wore the Halo ring and body jacket G
for 2.5 months, and had physiotherapy for 1 to 2 months. He
H H
complained of continuing pain in the neck and in the scapula
I region, and considerable stiffness of the neck. There was I
some loss of normal curvature of the spine and a slight
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decrease in the disc height, being a sign of early
K degeneration. He also suffered a frozen shoulder for about 2.5 K
years until the end of 1996 and was given more than 2 years'
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sick leave and follow up. There was a head concussion with
M a period of loss of consciousness, with post-concussion M
syndrome such as headaches and dizziness requiring
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painkillers. There was also a feeling of distress and difficulty
O in temper control. Total disability was assessed at 9% with O
loss of earning capacity assessed at 12%. PSLA was awarded
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at $360,000.00.
Q Q
(e) In Luk Yee Lam v Orasa Livasiri, HCPI 394/2002, the 40-
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year-old plaintiff was injured in a traffic accident and
S sustained a disc herniation at C5/6 level, with neck and back S
pain, and numbness and weakness in the upper limbs and
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hands and his right leg, and reduced sexual desire. The
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impairment of whole body was 16%, and it was held to be
C close to the “serious injury” category, and $400,000 was C
awarded for PSLA.
D D
E (f) In Boivin v Wong King Yin & anor, HCPI 195/2000, the E
plaintiff suffered injuries in a traffic accident when she was
F F
the back seat passenger of a private car being struck forcefully
G by a light goods vehicle driven by the defendant from behind. G
She sustained a severe whiplash injury followed by neck and
H H
back pain, limitation of neck movement and headaches,
I numbness in two fingers of her left hand and pain radiating I
down her left leg from the buttock region with a possible need
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for future surgery to fuse two cervical vertebrae. Moreover,
K the plaintiff suffered post-traumatic stress disorder and K
depression which arose from the pain and it affected her work
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and personal social life. She was graded as being in the lower
M end of the serious injury category and was awarded damages M
of $475,000 for PSLA.
N N
O (g) In Chan So Kwan v Mak Siu Kwan and anor HCPI 1487/2000, O
the plaintiff was a bus captain of KMB and had a collision
P P
st
with a private car driven by the 1 defendant. She suffered a
Q whiplash injury which resulted in some persistent neck pain, Q
limitation in neck movement and occasional spasm of the
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neck muscle and with anxiety disorder, all of which prevented
S the plaintiff from returning to her pre-accident work. S
Damages of $300,000 was awarded for PSLA
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B B
(h) In Razaq-Akhtar v Wang Hoi Transportation Ltd. HCPI 303
C of 2007, the plaintiff claimed against his employer after he C
had slipped and fallen down in the warehouse when carrying
D D
35 kilos boxes. He suffered from L5/S1 disc protrusion. He
E was awarded PSLA of $280,000. E
F F
31. The defendant, on the other hand, seeks to rely on the
G following cases and argues that the damages under this head should be in G
the region of HK$80,000 – HK$100,000.
H H
I (a) In Ho Kin Lon v. Wong Tin Chi DCPI 57/2010, the plaintiff I
complained of right hand, right knee and neck pain after a
J J
traffic accident. The experts concluded that there were soft
K tissue injuries to these areas. There was no neurological K
deficit. Damages of $100,000 was awarded for PSLA.
L L
M (b) In Au Suk Man v Chan Chi Wai DCPI 1213/2013, the plaintiff M
suffered whiplash injury in her neck in a traffic accident. She
N N
was put on a neck collar for 2 to 3 months. The experts agreed
O that there was only soft tissue injury. The Court found that O
the accident caused the pre-existing degeneration in the
P P
plaintiff’s C5/6 intervertebral disc to become symptomatic,
Q but most symptoms were resolved by the time of the trial. Q
Damages for PSLA was granted at $80,000.
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S (c) In Wo Wang Fu v Wong Kwok Hung HCPI 821/2014, the S
plaintiff suffered from mild soft tissue injury and adjustment
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disorder in a road traffic accident. The plaintiff was still
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experiencing mild degree of stiffness and pain at his neck,
C headache and dizziness at the time of trial. There was no C
residue neurological deficit. A total of 4-month sick leave
D D
was granted to the plaintiff for adjustment disorder. Damages
E of $90,000 for PSLA was granted. E
F F
(d) In Leung Hiu Yan Hilda v Lam Kam Hung DCPI 220/2012,
G the plaintiff sustained soft tissue injury to her neck and back G
in a road traffic accident, injuries were at soft tissue level. The
H H
plaintiff has residual neck and back pain. The condition of
I the plaintiff’s neck and back had reached maximum medical I
improvement, conservative treatment consisted of drug and
J J
physiotherapy were considered appropriate and further
K institutional treatment not required. Damages of $80,000, K
with inflation having been taken into account, was awarded
L L
for PSLA.
M M
(e) In Lo Yim Fong v Ho Po Yin & anor DCPI 654/2010, the
N N
plaintiff sustained injuries to her neck, back, upper chest and
O lower leg following a road traffic accident. Injuries were at O
soft tissue level with no bony fracture or neurological deficit.
P P
The plaintiff complained of on and off neck soreness, lower
Q back pain and bilateral patella soreness. The plaintiff’s Q
conditions had reached maximum medical improvement. The
R R
plaintiff was considered to have suffered relatively minor
S injurie and had mild residual problems. She was able to return S
to work after 10 days. Damages of $80,000 was awarded for
T T
PSLA.
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C (f) In Lai Ka Yin v Chan Yiu Kei DCPI 453/2008, the plaintiff C
sustained whiplash injuries to her neck and back as a result of
D D
a road traffic accident. He was hospitalised for 3 days and
E received physiotherapy afterwards. There was no fracture of E
the cervical spine. Both orthopaedic experts agreed that the
F F
plaintiff suffered from soft tissue injury of the neck and back
G with no evidence of any more serious injury. The plaintiff G
was considered as having reached maximum medical
H H
improvement. The Court considered that the plaintiff had
I only suffered a minor injury and had fully recovered. I
Damages of $50,000 was awarded for PSLA.
J J
K (g) In Wong Kin Hung v Chan Wai Ming DCPI 1223/2006, the K
plaintiff sustained injuries to his head, neck and right leg
L L
following a road traffic accident and was hospitalised for 2
M days. The injuries were found to be at soft tissue injury level. M
There was physiotherapy for 3 months but no complete
N N
recovery. The plaintiff suffered intermittent residual back
O pain. Damages of $70,000 was awarded for PSLA. O
P P
32. The cases relied upon by the plaintiff allowed damages for
Q PSLA in the region of $250,000 to $475,000. Some cases involving Q
circumstances very different from those of the present case, like Tam Wai
R R
Tuen v Seiko Screw Manufactory Ltd. and Razaq-Akhtar v Wang Hoi
S Transportation Ltd., where the plaintiffs suffered injuries whilst at work. S
The other cases involved plaintiffs suffering from far more serious injuries,
T T
for instance, requiring surgery and/or substantial hospitalization. In most
U U
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A A
B B
of those cases, the plaintiffs were considered to be in or close to the
C “serious injury” category. C
D D
33. In Lee Ting-lam v. Leung Kam-ming an infant by his next
E friend Leung Shu-wing [1980] HKLR 657, at 659, the Court of Appeal E
stated that the “serious injury” covered “cases where the injury leaves a
F F
disability which mars general activities and enjoyment of life, but allows
G reasonable mobility to the victim, for example the loss of a limb replaced G
by satisfactory artificial device, or bad fractures leaving recurrent pain”.
H H
The injuries suffered by the plaintiff in this case are obviously below, and
I not even close to, that category of “serious injury”. I
J J
34. On the other hand, the cases relied upon by the defendant,
K though more recent (decided in 2007 to 2017), disclosed circumstances less K
serious than those of the present case. Those cases approved damages for
L L
PSLA in the region of $50,000 to $100,000. Most of the plaintiffs in those
M case were described to have suffered only minor injuries. In particular, M
unlike the plaintiff in this case, they did not have any significant psychiatric
N N
problems.
O O
35. Although it was pleaded in the defendant’s Answer to Revised
P P
Statement of Damages that the damages should be discounted for the pre-
Q existing degeneration of multiple discs of the plaintiff 11, no submissions Q
were made in the defendant’s Opening and Closing Submissions. In any
R R
event, I am not prepared to give any discount in this aspect. There is no
S evidence that the plaintiff suffered from any neck or back pain prior to the S
T T
11
see para. 25 of the defendant’s Answer to Revised Statement of Damages at [39] of Bundle A
U U
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A A
B B
Accident. In one of the earlier medical reports by Dr Fung of Hong Kong
C Sanatorium and Hospital, it was stated that there was minimal degenerative C
12
changes at mid cervical spine . Both orthopaedic experts in the joint
D D
medical report did not say that the plaintiff would have the same symptoms
E due to natural progression of the pre-existing degeneration. Dr Kwok for E
the defendant did not state that the plaintiff would have developed the same
F F
symptoms even if the Accident did not happen due to the pre-existing
G degeneration. It was the agreed medical opinion of the experts that the G
plaintiff’s pre-existing degeneration was asymptomatic before the
H H
Accident.
I I
36. Whilst each case is to be decided on its own facts, having
J J
considered all the circumstances, as well as all the cases submitted by the
K parties, I am of the view that this case falls within somewhere between the K
cases provided by the plaintiff and those provided by the defendant. I have
L L
also taken into account that some of those cases were decided in the 2000s.
M I find that the reasonable and therefore appropriate damages under this M
head of PSLA in this case should be HK$250,000 and I so award.
N N
O Loss of earning capacity O
P P
37. An award for loss of earning capacity is to cover the risk that,
Q at some future point of time during the claimant’s working life, he will lose Q
his employment and will then suffer financial loss because of his
R R
disadvantage in the labour market, see Yu Kok Wing v Lee Tim Loi [2001]
S 2 HKLRD 306. S
T T
12
see medical report dated 19 May 2014 at [133] of Bundle A
U U
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A A
B B
C 38. The plaintiff used to work as a waitress, saleslady, receptionist C
and clerk. She quitted working in February 2012 when she was pregnant.
D D
She has been living on Comprehensive Social Security Assistance since
E then. She claims that she plans to go back to work when her son goes to E
Primary one i.e. September 2018. It is her case that her residual pain on
F F
neck/pain and her inability to stand, walk or sit for prolonged period would
G put her in a disadvantaged position to compete with others in the labour G
market.
H H
I 39. As early as on 24 June 2015, the orthopaedic doctor at the I
Pamela Youde Nethersole Eastern Hospital certified that the plaintiff was
J J
incapacitated to work and the disability was expected to last for a year13,
K that means up to June 2016. That was endorsed at least by Dr Lam in the K
joint medical report14. It is however noted that the plaintiff still submitted
L L
the review form for Comprehensive Social Security Assistance on 7
M September 201615. M
N N
40. On the orthopaedic aspect, both experts opined that the
O plaintiff should be able to return to employment as waitress, saleslady, O
clerk/receptionist or part-time domestic helper16.
P P
Q 41. On the psychiatric aspect, Dr Lai opined that the plaintiff’s Q
ability in adaptation to a work environment was similar to her ability as
R R
before the accident and the plaintiff could be considered as mentally
S S
13
see para. 102 of the joint medical report at [167] of Bundle A
T 14
See para. 103 of the joint medical report at [167] of Bundle A T
15
[548] of Bundle B
16
see para. 99 and 100 of the joint medical report at [166-167] of Bundle A
U U
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A A
B B
capable of returning to her previous employment or work appropriate to
C her working experience and physical abilities 17. Dr Tsai opined that there C
was no psychiatric basis for the plaintiff not to resume her pre-accident
D D
employment or work appropriate to her experience18.
E E
42. The plaintiff has voluntarily quitted work and been receiving
F F
Comprehensive Social Security Assistance since 2012. She still submitted
G the review form for Comprehensive Social Security Assistance on 7 G
September 2016 and was receiving assistance at the time of this hearing
H H
(i.e. close to 3 ½ years after the Accident), her intention or determination
I to return to the workforce is questionable. If she does intend to work again I
in the next few years, any difficulties she might encounter would be more
J J
likely to come from her prolonged voluntary unemployment and her age
K rather than any residual disabilities resulting from the Accident. In any K
event, as all experts agreed, the plaintiff should be fit enough, both
L L
physically and mentally, to return to her previous employment. In
M particular, I accept Dr Kwok’s opinion that the plaintiff’s residual back and M
neck pain symptoms should be minimal, they should not affect her physical
N N
function significantly and would not affect her capacity to perform
O moderate level of duty which is similar to those as waitress, saleslady, O
receptionist or clerk as she had pursued in the past 19 . There is no or
P P
insufficient evidence to suggest that the plaintiff would suffer a handicap
Q or disadvantage in the labour market as a result of her injuries caused by Q
the Accident. I am not satisfied on the evidence that the plaintiff has lost
R R
any earning capacity as a result of the Accident.
S S
T 17
see para. 102 and 104 of the joint psychiatric report at [209] of Bundle A T
18
see para. 107 of the joint psychiatric report at [210] of Bundle A
19
see para. 100 of the joint medical report at [167] of Bundle A
U U
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A A
B B
C 43. For the above reasons, I do not allow any award under this C
head.
D D
E Special damages E
F F
44. The plaintiff also seeks special damages for (a) medical
G expenses, (b) travelling expenses, (c) tonic food, (d) part-time domestic G
helper expenses, (e) laundry expenses and (f) drugs over the counter.
H H
I (a) Medical expenses I
J J
45. The plaintiff produced receipts for medical expenses incurred
K for the total sum of HK$13,360, which is acceptable to the defendant. I K
accordingly make an award of HK$13,360 for medical expenses.
L L
M (b) Travelling expenses M
N N
46. The plaintiff claims traveling expenses, namely taxi fares, for
O a total sum of $49,940.70 covering a period from 16 May 2014 to 30 O
November 2016. She accepts that parts of the taxi fares were for taking
P P
her son to school, going to market and running some other personal errands.
Q The plaintiff, by relying on certain case authorities 20, argues that all those Q
R R
S S
20
Travelling expenses incurred by the victim’s wife to visit the victim in hospital were granted in Tam
Kwok Tung v Lam Wai Chun & ors HCA 5913/1984; taxi fares incurred for taking the victim to school
T were allowed in Nazir Begum Din & Fahimah Din (an infant) v Lee Kwei Ying Peggy & anor HCA T
3811/1980; costs of post-accident driving lessons incurred by the plaintiff were allowed in Lai Po Wah
v Chan Woon Sum & anor HCA 4314/1982
U U
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A A
B B
expenses are reasonably incurred but would accept a deducted sum of
C HK$19,767.3021. C
D D
47. The defendant, on the other hand, argues that the travelling
E expenses claimed are excessive and/or disproportionate and/or unjustified. E
It is emphasized that a substantial part of the taxi fares was incurred after
F F
8 pm (over HK$17,000) and/or on Sundays or public holidays (over
G HK$15,000)22. It is also submitted that the taxi fare receipts showed a G
pattern of the plaintiff hiring taxis at different and irregular hours which
H H
does not support her claim of taking her son to and from school. The
I defence prepared a table showing that all the travelling expenses incurred I
for medical treatments at different hospitals and clinics, according to the
J J
taxi fare receipts provided by the plaintiff, were in the total sum of
K HK$2,546 only. The defendant argues that only a reasonable sum of K
HK$3,000 for travelling expenses should be allowed.
L L
M 48. It is important to note that the plaintiff, in the Revised M
Statement of Damages, claimed only “travelling expenses when attending
N N
medical treatment by taxi” 23. In any event, I do not find the cases relied
O upon by the plaintiff as mentioned in paragraph 46 above relevant as they O
were dealing with travelling expenses of different nature or incurred under
P P
different circumstances. I agree with the defence that the reasonable sum
Q under this head should be HK$3,000 and I so award. Q
R R
(c) Tonic food
S S
T 21
see para. 43 and 71 of the plaintiff’s closing submissions T
22
see para. 28 of the Answer to Revised Statement of Damages at [40-43] of Bundle A
23
see para. 13(b) of the Revised Statement of Damages at [25] of Bundle A
U U
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A A
B B
C 49. The plaintiff seeks to recover HK$25,000 for tonic food, but C
she could not produce any receipts except two issued by a Lam Kee
D D
Seafood Products Company Limited for a total sum of HK$19,400 for
E cordyceps (冬蟲夏草). She testified during the hearing that she was E
advised by a doctor in Chick’s TCM Health Centre to take cordyceps to
F F
assist her recovery.
G G
50. The defendant pointed out that the plaintiff’s version of taking
H H
Chinese doctor’s advice to take cordyceps was not mentioned at all in her
I witness statement. There is no evidence to suggest that tonic food was I
necessary and in any event, the amount claimed was grossly exaggerated.
J J
The defendant suggests that a global sum of HK$3,000 should be awarded.
K K
51. It was held in Chan Hung Hang v Fat Kee Marine Repairing
L L
and Engineering Co DCPI 2328/2007 that where there is no evidence
M showing the advisability and suitability of tonic food purchased, only a M
nominal sum should be awarded.
N N
O O
52. There is no evidence as to why and how the cordyceps were
P
necessary or required for the recovery of the plaintiff in this case. I P
therefore would award, as suggested by the defendant, a sum of HK$3,000
Q Q
for tonic food.
R R
S S
T T
U U
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A A
B B
(d) Laundry expenses
C C
53. The plaintiff, by producing receipts covering a period from 10
D D
August 2014 to 19 November 2016, claims laundry expenses for the total
E sum of HK$4,061. E
F F
54. The defendant in the Answer to Revised Statement of
G Damages pleaded that laundry expenses were unnecessary as the plaintiff G
had already employed a domestic helper for household chores 24 . The
H H
plaintiff in her witness statement stated that, due to her neck and waist/back
I pain, she was unable to wash duvets, beddings and other large items at I
home and needed to take them to the laundry shop (note: only a sum of
J J
HK$2,575 was claimed in the witness statement)25. In her own version to
K the psychiatrists, she said she “do[es] household chores including packing K
up and machine laundry”26. The defence argues that the plaintiff seems to
L L
suggest that she did her daily laundry at home while taking the large items
M to the laundry shop. That version is inconsistent with the laundry receipts M
which showed that the plaintiff visited the laundry shop once every few
N N
days but only 11 receipts were marked with items of duvets. The defence
O argues that the laundry expenses were unnecessary, unrelated to the O
plaintiff’s injuries and should not be allowed.
P P
Q 55. No doubt the plaintiff had been injured in the Accident. As Q
mentioned above, the doctors suggested sick leave for slightly more than a
R R
27
year and her disability would last for another year thereafter . It is
S S
24
see para. 30 of the Answer to Revised Statement of Damages at [44] of Bundle A
T 25
see para. 18(d) of the plaintiff’s witness statement at [129] of Bundle A T
26
see para. 35 of the joint psychiatric report at [180] of Bundle A
27
see para. 25 above
U U
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A A
B B
therefore reasonable for her to take part of her laundry, in particular the
C large items, to the laundry shop. I am prepared to allow half of the sum C
claimed, which in my view is a reasonable sum. I make an award of
D D
HK$2,000 for laundry expenses.
E E
(e) Part-time domestic helper expenses
F F
G 56. It is the plaintiff’s case that, because of the injuries suffered G
as a result of the Accident, she was unable to do the household chores like
H H
cleaning the toilet and kitchen, wiping and mopping the floor, washing,
I ironing, grocery shopping, cooking, cleaning the furniture and the windows I
etc. and needed a part-time domestic helper to help her. The plaintiff
J J
produced a “Domestic Helper Work and Salary Record” which were in the
K form of tables setting out the date and time of working and the salary K
received by the part-time domestic helper, covering a period from 13
L L
January 2015 to 29 November 201628. A total sum of HK$67,023 was
M claimed under this head in the Revised Statement of Damages 29. M
N N
57. The defendant argues that the plaintiff only hired a part-time
O domestic helper since 13 January 2015, which was more than half a year O
following the Accident in May 2014. Her explanation in Court that she
P P
was assisted by relatives from May 2014 to January 2015 was never
Q mentioned in her witness statement. There is no suggestion that the Q
plaintiff was unable to carry out the work of a part-time home helper since
R R
January 2015 due to the injuries sustained in the Accident in May 2014.
S The defendant argues that hiring a part-time domestic helper from January S
T T
28
see [467-487] of Bundle B
29
see para. 13(e) of the Revised Statement of Damages at [26] of Bundle A
U U
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A A
B B
2015 onwards was unnecessary and any amount claimed under this head
C should not be allowed. C
D D
58. It is noted that, on 22 January 2015, the plaintiff was
E suggested by the Social Welfare Department to try the job of a part-time E
domestic helper but it was found out that “the work capacity (of the
F F
plaintiff) demonstrated during the assessment was not matched with the
G home helper job demands due to fair right hand endurance to cope with G
cleaning and lifting tasks” 30. That lends support to the plaintiff’s claim that,
H H
after the Accident, she could not perform household chores herself and
I required the assistance of a part-time domestic helper. I
J J
59. As mentioned above, the doctors suggested sick leave for
K slightly more than a year from the date of Accident and, her disability K
would last for another year thereafter31, i.e. up to June 2016. As such, the
L L
expenses for part-time domestic helper for the period from July to
M November 2016, i.e. HK$17,550 (HK$3,510 x 5 months)32, should not be M
allowed.
N N
O 60. Also, I am of the view that the hiring a part-time domestic O
helper to come for 3 hours every other day (i.e. thrice a week), in the
P P
plaintiff’s case (she is living with her son in a public housing estate unit),
Q is excessive and unnecessary. It would have been reasonable to engage the Q
service of a part-time domestic helper twice a week in the circumstances
R R
of the plaintiff.
S S
T 30
see para. 2 of the occupational therapy report at [143] of Bundle A T
31
see para. 25 above
32
See tables of the expenses of part-time domestic helper at [483-487] of Bundle B
U U
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A A
B B
C 61. I would therefore deduct HK$17,550 from the amount C
claimed and then discount it by one-third. I would award HK$32,982
D D
[(HK$67,023 – HK$17,550) x 2/3] for the part-time domestic helper
E expenses incurred by the plaintiff. E
F F
(f) Drugs over the counter
G G
62. The plaintiff claims expenses of HK$5,000 for drugs like
H H
ointment etc. for pain relief from time to time 33. The defendant objected.
I I
63. There were no submissions made by the plaintiff during the
J J
hearing in this regard, nor was there any medical or documentary evidence
K ever submitted. I make no award under this head. K
L L
64. The special damages which I would allow for the plaintiff
M include, (a) medical expenses of HK$13,360, (b) travelling expenses of M
HK$3,000, (c) tonic food of HK$3,000, (d) laundry expenses of HK$2,000
N N
and (e) part-time domestic helper expenses of HK$32,982, and the total
O amount is HK$54,342. O
P P
Future expenses
Q Q
65. The plaintiff also seeks damages to cover (a) future medical
R R
expenses in the sum of HK$20,000 or HK$2,000 and (b) future expenses
S S
T T
33
see para. 13(f) of the Revised Statement of Damages at [26] of Bundle B
U U
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A A
B B
for part-time domestic helper in the sum of HK$37,440, both objected by
C the defendant. C
D D
(a) Future medical expenses
E E
66. The plaintiff asks for medical expenses for consulting private
F F
psychiatrist in the future for the total sum of $20,000 ($2,000 per session x
G 10)34, or alternatively, for a psychiatrist in public hospital for the total sum G
of HK$2,000 ($200 per session x 10)35.
H H
I 67. The plaintiff has been receiving psychiatric treatment from I
public hospitals since 2004. Even Dr Lai, instructed by the plaintiff, opined
J J
that she could continue her further treatment in the public psychiatric
K clinic36. The claim for medical expenses for private psychiatrist must fail. K
In the summary of the joint psychiatric report dated 5 January 2017, Dr Lai
L L
opined that the plaintiff at that time had mild residual psychiatric
M symptoms whereas Dr Tsai (instructed by the defendant) found her to have M
recovered37. If the plaintiff is requiring any further psychiatric treatment
N N
from any public hospital in the future, as she did in the last 10 odd years, it
O has nothing or little to do with the Accident. I make no award under this O
head.
P P
Q Q
R R
S S
34
see para. 16 of the Revised Statement of Damages at [27] of Bundle B
T 35
see para. 43 and 80 of the plaintiff’s closing submissions T
36
see para. 94-95 of the joint psychiatric report at [207] of Bundle A
37
see para. 111a of the joint psychiatric report at [211] of Bundle A
U U
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A A
B B
(b) Future expenses for part-time domestic helper
C C
68. The plaintiff claims that she still needs assistance from a part-
D D
time domestic helper to help her with the housework for another 12 months
E and will therefore incur a further sum of HK$37,440 (HK$3,120 x 12)38. E
F F
69. As I have found that the plaintiff should not be entitled to
G recover any expenses for part-time domestic helper after July 2016 39 , I G
would not allow any claim for future expenses for part-time domestic
H H
helper.
I I
Disposal
J J
K 70. In summary, I would award damages for the plaintiff as K
follows:-
L L
M PSLA HK$250,000 M
Loss of Earning Capacity Nil
N N
Special Damages HK$54,34240
O Future Expenses Nil O
Total: HK$304,342
P P
Q Q
R R
S S
T 38
see para. 15 of the Revised Statement of Damages at [27] of Bundle B T
39
see para. 59 above
40
for the breakdown, see para. 64 above
U U
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A A
B B
71. I also allow interests as follows:-
C C
(a) 2% per annum for damages for PSLA from the date of service
D D
of the writ to the date of this assessment;
E E
(b) half judgment rate for special damages from the date of the
F F
Accident to the date of this assessment; and
G G
(c) judgment rate on the final award from the date of this
H H
assessment until full payment by the defendant.
I I
72. Costs should follow the event. I make an order nisi, which
J J
shall become absolute in the absence of any parties’ objection in 14 days,
K that the costs be to the plaintiff, with a certificate for counsel, to be taxed K
if not agreed. The plaintiff’s own costs shall be taxed in accordance with
L L
the Legal Aid Regulations.
M M
73. I thank both counsel for their useful assistance.
N N
O O
P P
Q ( Edmond Lee ) Q
District Judge
R R
S Ms Lorinda Lau, instructed by Hon & Co., assigned by the Director of S
Legal Aid, for the plaintiff
T T
Ms Phyllis Lee, instructed by Kenneth C. C. Man & Co, for the defendant
U U
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A A
B B
DCPI 2179/2015
[2019] HKDC 29
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E PERSONAL INJURIES ACTION NO. 2179 OF 2015 E
___________________________
F F
G G
BETWEEN
H
NG YUEK LANG SOPHIA Plaintiff H
and
I I
CHIU KING WA Defendant
J J
___________________________
K K
Before: His Honour Judge Edmond Lee in Court
L Dates of Hearing: 20 September 2017 and 19 October 2017 L
Date of Handing Down Assessment of Damages: 11 January 2019
M M
___________________________
N N
O
ASSESSMENT OF DAMAGES O
___________________________
P P
Background
Q Q
1. The plaintiff sustained personal injuries in a traffic accident
R R
on 16 May 2014 (“the Accident”). She was travelling on board a taxi which
S was involved in a collision with another taxi and a private vehicle. S
T T
U U
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A A
B B
2. The defendant, being the driver of the private vehicle and
C responsible for the Accident, was subsequently convicted of “Careless C
Driving” and “Driving a vehicle with alcohol concentration in breath
D D
exceeding the prescribed limit” on 17 June 2014.
E E
3. The plaintiff, by a writ of summons filed on 6 October 2015,
F F
commenced the present proceedings against the defendant for damages
G with interests and costs. On 3 December 2015, by consent of the parties, G
judgment on liability was entered for the plaintiff against the defendant,
H H
with damages to be assessed.
I I
4. The plaintiff was born on 14 August 1974 and was aged 39 at
J J
the time of the Accident. She is a single mother taking care of her son
K (DOB: 5 April 2012) who was 2 years old at the time of the Accident. She K
received Form 5 education and used to work as waitress/saleslady for about
L L
5 years and receptionist/clerk for about 10 years. She quitted her job in
M February 2012 when she was pregnant and then spent her time taking care M
of her son. She was not employed and was dependent on Comprehensive
N N
Social Security Assistance at the time of the Accident.
O O
5. As a result of the Accident, she applied for and was granted
P P
TAVAS allowance totalling HK$52,590.
Q Q
Plaintiff’s injuries and treatment received
R R
S 6. Shortly after the Accident, the plaintiff was taken by S
ambulance to the Accident and Emergency Department of the Queen
T T
Elizabeth Hospital. She complained of severe neck pain and back pain.
U U
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A A
B B
She was found to have tenderness on the back of her neck and her lower
C back and abrasion wound on right knee. She was admitted to the hospital C
for treatment and discharged on the same day.
D D
E 7. After discharge from the Queen Elizabeth Hospital on 16 May E
2014, the plaintiff went to the Hong Kong Sanatorium and Hospital on the
F F
same day. She was found to have mild occipital and neck tenderness and
G was given a soft neck collar, analgesics and a week of antibiotics. MRI of G
cervical spine was done on 19 May 2014 which revealed minimal posterior
H H
bulging of C3-4 disc without fracture or cord injury. She was advised to
I wear soft neck collar for 3 days and take oral and topical analgesics. Sick I
leave was granted from 16 May 2014 to 18 May 2014.
J J
K 8. The plaintiff had a history of mental problem as early as in K
2004. She was first seen at Western Psychiatric Center in December 2004
L L
and was diagnosed to have panic disorder. She was treated with
M antidepressant and her mental state was stabilized. She was then followed M
up at the Department of Psychiatry of the Pamela Youde Nethersole
N N
Eastern Hospital in May 2009. She defaulted follow-up from January 2010
O to June 2012, except that she attended once in June 2010. After the O
Accident, when attending a consultation on 29 May 2014, the plaintiff said
P P
that she was anxious, felt short of breath and had recurrent nightmare of
Q the Accident. Q
R R
9. The plaintiff was referred by the Psychiatry Department to the
S Department of Orthopaedic & Traumatology of the Pamela Youde S
Nethersole Eastern Hospital. She attended the out-patient clinic on 17
T T
September 2014. She was diagnosed to have neck and back sprain injury
U U
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A A
B B
with C3/4 disc bulging, L4/5, L5/S1 and S1/2 disc protrusion. Sick leave
C was granted from 17 September 2014 to 4 February 2015, and later up to C
24 June 2015.
D D
E 10. The plaintiff started physiotherapy treatment on 17 October E
2014. She complained of neck and low back pain as well as decrease in
F F
range of movement of her neck and back. Neck care, mobilization and
G stretching exercises for her neck, back care, mobilization, stretching and G
stabilization exercises, passive mobilization and hot pack to back were
H H
included in the rehabilitation programme. She completed 5 sessions but
I defaulted 6 sessions. She was last seen on 16 December 2014 and I
defaulted thereafter. She started another programme on 12 May 2015. She
J J
complained of right side low back pain, decrease in range of movement of
K back. Back care, mobilization, stretching and stabilization exercise were K
provided. She attended 4 sessions but defaulted 3 sessions.
L L
M 11. On 22 January 2015, the plaintiff first attended the M
Occupational Therapy Department of the Pamela Youde Nethersole
N N
Eastern Hospital for work rehabilitation service. She complained of
O tenderness over her neck, right shoulder and back at movement, as well as O
numbness over right upper and lower limbs. Vocational counselling was
P P
provided but it was noted that she was unemployed for the last 2 years. She
Q was suggested to try a part-time home helper job which was referred by the Q
Social Welfare Department. The work capacity demonstrated during the
R R
assessment did not match the demands of home helper due to her fair right
S hand endurance to cope with cleaning and lifting tasks. She was S
recommended to try a course of work hardening. Home exercise of neck
T T
and back was suggested.
U U
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-5-
A A
B B
C Joint medical examination by orthopaedic experts C
D D
12. The plaintiff was examined by two orthopaedic experts, Dr
E Lam Kwong Chin instructed by the plaintiff and Dr Kwok Hau Yan E
instructed by the defendant, on 23 May 2016 and a joint medical report
F F
dated 27 July 20161 was prepared.
G G
13. Physical examination on the date of joint medical examination
H H
revealed that the plaintiff could walk in a normal gait unaided, could squat
I fully without requiring support to rise, could sit without apparent distress I
for 45 minutes and rise smoothly. There was no external deformity,
J J
swelling or scar on the plaintiff’s neck. The neck movement was fair and
K the plaintiff complained of pain at end of range and worst at extension. K
Loss of cervical lordosis was noted. For the upper limbs, there was no
L L
external deformity, swelling or scars with no significant asymmetrical
M muscle wasting or spasm. For the back, there was no external deformity, M
swelling or scar and no loss of lumbar lordosis. The plaintiff complained
N N
of diffuse tenderness at midline and bilateral paraspinal muscles from
O upper thoracic to lower sacrum. Back movement was fair. The plaintiff O
complained of pain at end of range as well as increase in back pain on right
P P
shoulder elevation. For the lower limbs, there was no length discrepancy
Q and no significant asymmetrical muscle wasting or spasticity. Q
R R
14. X-rays of the cervical, thoracic and lumbar spine revealed lost
S in cervical lordosis with reversal at C4/5 level. There was lumbarization S
T T
1
[144-170] of Bundle A
U U
V V
-6-
A A
B B
of L1. The L5/S1 disc was narrowed. There was no evidence of
C spondylolysis or recent fracture. X-ray of both legs revealed no bony C
deformity or residual sign of fracture and no abnormal soft tissue swelling
D D
or calcification with normal bony density and bony alignment.
E E
15. Both experts, Dr Lam and Dr Kwok, agreed that:-
F F
G (a) The plaintiff had head/occiput concussion, neck sprain/ G
contusion, back sprain/contusion, and abrasion of left elbow,
H H
right knee and both shins.
I I
(b) The injuries were at soft tissue level with no suggestion of
J J
gross bony damage or neurological deficit.
K K
(c) The cervical MRI showed that C4-5 disc space was slightly
L L
narrowed, with minimal posterior bulging and loss of lordotic
M curvature. M
N N
(d) Lumbar MRI showed that facet hypertrophy at L3/4, L4/5 and
O L5/S1 level was pre-existing and degenerative in origin. MRI O
also showed relative mild disc protrusions at L4/5, L5/S1 and
P P
S1/2 levels and the annular tear at S1/2. Such changes in
Q multiple discs were usually degenerative in origin, rather Q
common in the population and could be asymptomatic.
R R
S (e) The medications, physiotherapy and occupational therapy S
given to the plaintiff were standard and appropriate. Her
T T
physical condition was stable. Orthopaedically, she could be
U U
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-7-
A A
B B
considered as having reached maximal medical improvement
C from the Accident. C
D D
16. Dr Lam and Dr Kwok, however, had differences in opinion
E on:- E
F F
(a) For the C4/5 disc change, Dr Lam opined that it was
G compatible with the whiplash injury of the Accident and could G
account for the sever and persistent neck pain. Dr Kwok
H H
opined that it could happen as part of pre-existing changes
I because the trivial nature of the plaintiff’s injury was not I
compatible with a disruptive disc lesion or intervertebral disc
J J
change which could only happen in patient which significant
K neck injury together with changes of the signal of the disc or K
spinal cord which was not present in the plaintiff’s case.
L L
M (b) In respect of working capacity and prognosis, Dr Lam M
commented that, as most workers with neck or back injury but
N N
no substantial structural damage or neurological deficit could
O still return to work, the plaintiff should be able to have lighter O
jobs such as waitress, saleslady, clerk or part-time domestic
P P
helper. However, she would be adversely affected by the
Q residual neck or back symptoms upon prolonged working, Q
exertion or weight bearing and her working efficiency and
R R
endurance and hence her employment opportunity would be
S seriously affected. Dr Kwok commented that the residual S
back and neck symptoms should be minimal and should not
T T
affect her physical function significantly.
U U
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-8-
A A
B B
C (c) Dr Lam’s assessment of the plaintiff’s impairment of whole C
person and loss of earning capacity were both 11% whereas
D D
Dr Kwok’s assessment of the impairment of whole person and
E loss of earning capacity were both 1 to 1.5%. E
F F
Joint medical examination by psychiatrists
G G
17. The plaintiff was examined by two psychiatrists, Dr Benjamin
H H
Lai instructed by the plaintiff and Dr David Tsai instructed by the
I defendant, on 1 December 2016 and a joint psychiatric report dated 5 I
January 20172 was prepared.
J J
K 18. Dr Lai noted that the plaintiff was mentally stable prior to the K
Accident in May 2014 and diagnosed that she suffered increased
L L
psychiatric symptoms and Post Traumatic Stress Disorder symptoms in the
M form of nightmares of the Accident and she was likely suffering from M
minor residual psychiatric symptoms. Dr Tsai opined that whatever
N N
negative impact induced by the Accident was very short-lived, the plaintiff
O rapidly responded to treatment and there was no substantial enduring O
consequence.
P P
Q 19. On the question of further treatment, Dr Lai advised that the Q
plaintiff could continue treatment in public psychiatric clinic once in 6 to
R R
8 weeks and the cost per session was about $200. The likely cost of similar
S treatment with 4 weeks of medication in the private sector was about S
T T
2
[171-220] of Bundle A
U U
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-9-
A A
B B
$2,000 per session. It was likely that she required another 6 months of
C psychiatric treatment. Dr Tsai advised that no further treatment as C
pharmacotherapy was required and she should continue to be under the
D D
care of public psychiatric service as there was no additional benefit in
E shifting to the private sector. E
F F
20. In respect of permanent impairment of whole person and loss
G of earning capacity based on the likely psychiatric condition as a result of G
the Accident, Dr Lai’s assessment was about 1 to 2%. Dr Tsai found no
H H
permanent impairment or loss of earning capacity on psychiatric ground.
I I
Quantum of damages
J J
K 21. The plaintiff revised the figures at the end of the hearing and K
now seeks total damages of HK$786,051.30. The defendant suggests
L L
HK$99,360 to HK$119,360. Their respective cases are as follows:-
M M
Plaintiff (HK$) Defendant (HK$)
N N
PSLA 450,000 80,000 - 100,000
O Loss of Earning 150,000 nil O
Capacity
P P
Special Damages 128,611.30 19,360
Q Q
(medical, travelling,
R
etc.) R
Future Expenses 57,440 nil
S S
Total: 786,051.30 99,360 - 119,360
T T
U U
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A A
B B
Pain, suffering and loss of amenities (“PSLA”)
C C
22. In simple terms, what happened in this case, which was not in
D D
dispute, was that the plaintiff was the victim of a car accident. She was the
E back seat passenger of a taxi which was hit by the private car driven by the E
defendant who was drunk and driving carelessly. The taxi which the
F F
plaintiff was in was then pushed sideward and then collided with another
G taxi. As a result, the plaintiff suffered neck and back injuries. In specific G
terms, as agreed by the orthopaedic experts, they were neck and back
H H
sprain/contusion at soft tissue level with no suggestion of gross bony
I damage or neurological deficit. The plaintiff was treated by medications, I
physiotherapy and occupational therapy, which were considered to be
J J
standard and appropriate by the experts who opined that the plaintiff had
K reached maximum medical improvement at the time of the joint K
examination, which was about 2 years after the Accident.
L L
M 23. The plaintiff complained, after the Accident, that she had neck M
and back pain and stiffness, headache, limitation of range of movement of
N N
back. She felt back pain when bending down or raising hands. She had
O difficulty in carrying heavy objects and having prolonged standing, O
walking and sitting. She also complained of anxiety, depression, insomnia,
P P
nightmares and flashback of the Accident.
Q Q
24. Both orthopaedic experts agreed that the cervical MRI
R R
showed that the plaintiff’s C4-5 disc space was slightly narrowed, with
S minimal posterior bulging and loss of lordotic curvature. For the C4/5 disc S
change, Dr Lam for the plaintiff opined that it was compatible with the
T T
whiplash injury of the Accident and could account for the severe and
U U
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A A
B B
persistent neck pain. Dr Kwok for the defendant opined that it could
C happen as part of pre-existing changes in view of the trivial nature of the C
plaintiff’s injury.
D D
E 25. Though the plaintiff was not working at the material time, she E
was given intermittent sick leave for more than a year. As early as on 24
F F
June 2015, the orthopaedic doctor at the Pamela Youde Nethersole Eastern
G Hospital certified that the plaintiff was then incapacitated to work and the G
disability was expected to last for a year3. Dr Lam, in view of the severity
H H
of the symptoms of the plaintiff, endorsed such sick leaves. Dr Kwok, on
I the other hand, opined that sick leave in the region of 3 to 4 months would I
be justified on the orthopaedic aspect4.
J J
K 26. I am prepared to accept Dr Lam’s opinion that the plaintiff K
suffered a whiplash injury of the Accident and that could account for her
L L
severe and persistent neck pain. This is consistent with the fact that the
M plaintiff whilst inside the taxi had been first hit by the defendant’s vehicle M
and then collided with another vehicle 5 as well as the plaintiff’s own
N N
version that she was hit on both sides inside the car compartment and had
O temporarily lost consciousness6. It is noted that, at the time of the joint O
examination, the forward flexion, backward extension and sideward
P P
flexion of the plaintiff’s neck and back were all less than the normal range . 7
Q It was 2 years after the Accident and the plaintiff was still complaining of Q
residual neck and back pain. Even Dr Kwok for the defendant accepted
R R
S S
3
see para. 102 of the joint medical report at [167] of Bundle A
4
see para. 103 and 104 of the joint medical report at [167-168] of Bundle A
T 5
see para. 1 and 2 of the Statement of Claim at [4-5] of Bundle A T
6
see para. 5 of the plaintiff’s witness statement at [124] of Bundle A
7
see para. 53 and 55 of the joint medical report at [155-156] of Bundle A
U U
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- 12 -
A A
B B
that sick leave of 3 to 4 months would have been justified. The injuries of
C the plaintiff could hardly be described as “trivial” or “minor”, as Dr Kwok C
did in the joint medical report.
D D
E 27. I have considered but do not accept the defendant’s criticism E
of the plaintiff’s complaints of neck and back pain being inconsistent with
F F
the medical or documentary evidence. It was argued by the defence that if
G the plaintiff indeed suffered pain as claimed, she should have attended G
medical or physiotherapy treatment more frequently and more regularly
H H
instead of defaulting some of the scheduled treatment. That criticism
I ignored the fact that the plaintiff was a single mother having sole care of I
her 2 or 3 years old son at the material times. It is noted that, as early as
J J
on the date of the Accident, the plaintiff requested discharge from hospital
K on the same day as she had to go home to take care of her child8. K
L L
28. On the psychiatric aspect, it is not in dispute that the plaintiff
M had history of mental illness and had been receiving psychiatric treatment M
since 2004. Dr Lai for the plaintiff diagnosed that she suffered increased
N N
psychiatric symptoms and Post Traumatic Stress Disorder symptoms in the
O form of nightmares of the Accident and she was likely suffering from O
minor residual psychiatric symptoms. Dr Tsai opined that, whatever
P P
negative impact induced by the Accident was very short-lived, the plaintiff
Q rapidly responded to treatment and there was no substantial enduring Q
consequence.
R R
S S
T T
8
see para. 20 of the joint medical report at [148] of Bundle A
U U
V V
- 13 -
A A
B B
29. I am prepared to accept Dr Lai’s opinion to the extent that the
C plaintiff had suffered on the psychiatric aspect as a result of the Accident. C
This is consistent with the fact that the plaintiff voluntarily sought
D D
psychiatric help from her psychiatrist at the Pamela Youde Nethersole
E Eastern Hospital on 29 May 2014, i.e. 2 weeks after the Accident, and that E
was well before her next scheduled appointment with the psychiatrist on
F F
19 June 20149. She was prescribed with more psychiatric medication than
G usual. It is also noted that the plaintiff had experienced pregnancy and then G
spontaneous abortion/miscarriage for a time span of about 2 months. The
H H
plaintiff must have experienced additional stress as she specifically
I enquired with her psychiatrist about the effects of her painkillers and other I
medication on the fetus10.
J J
K 30. The plaintiff seeks to rely on the following cases and argues K
that the damages for PSLA should be HK$450,000.
L L
M (a) In Lee Yu Hey v Yuen His Carl [2012] HKEC 1483, the M
plaintiff was a 41-year-old driver who was injured in a traffic
N N
accident when his private vehicle was hit by the vehicle driven
O by the defendant. On examination, there was pain over O
lumbosacral spine with decreased motion range of the back.
P P
Straight leg raising test on the right side was limited and there
Q was mild weakness of the right great toe motion. X-ray Q
examination of the lumbar spine showed decreased
R R
intervertebral space of the L4/5 level, etc. There was
S persistent symptom after the physiotherapy. MRI of the S
T T
9
see consultation summary at [273] of Bundle B
10
see consultation summary at [275] of Bundle B
U U
V V
- 14 -
A A
B B
lumbar spine showed protrusion of the intervertebral disc at
C the L5/S1 level. Since his activities of daily living was very C
much affected, he was admitted for a spinal operation of
D D
discectomy of the L5/S1 intervertebral disc and was
E hospitalized for 4 days. The Court awarded $450,000 for E
PSLA and discounted it by 20% due to pre-existing
F F
degenerative condition.
G G
(b) In Tam Wai Tuen v Seiko Screw Manufactory Ltd. HCPI 383
H H
of 2008, the defendant was injured at work and hurt his back.
I He was 53 years old at the time of the accident. The court I
award $250,000 for PSLA.
J J
K (c) In Lau Koon Loi v Wong Wai Sing and anor HCPI 445 of 2007, K
the plaintiff claimed for damages after a traffic accident. He
L L
complained of neck stiffness, neck and shoulder movement
M restricted due to chest pain, right knee pain, pain when M
breathing and post-concussional headache and dizziness.
N N
From that MRI study, it was seen that there was disc
O protrusion at C5/6 level causing slight narrowing of the spinal O
canal and slight indentation on the anterior surface of the
P P
cervical cord. Degenerative changes were also identified at
Q C5/6 junction endplates. The plaintiff was still suffering Q
residual pain almost 7 years after the accident. He had also
R R
suffered adjustment disorder and erectile dysfunction. The
S court considered that the plaintiff’s case was just below the S
lower end of the serious injury category and awarded
T T
$400,000 for PSLA.
U U
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- 15 -
A A
B B
C (d) In Chan Tak Chi v Wong Siu Tao, HCPI 1223/1996, a 29-year- C
old man was injured in a traffic accident and sustained
D D
fracture to C5 spine and the right side facet, 5 cm laceration
E to left parietal area of the head, and multiple abrasions. He E
was hospitalized first for 13 days for placing in a Halo ring
F F
with body jacket, then another 5 days for removal of the Halo
G ring and body jacket. He wore the Halo ring and body jacket G
for 2.5 months, and had physiotherapy for 1 to 2 months. He
H H
complained of continuing pain in the neck and in the scapula
I region, and considerable stiffness of the neck. There was I
some loss of normal curvature of the spine and a slight
J J
decrease in the disc height, being a sign of early
K degeneration. He also suffered a frozen shoulder for about 2.5 K
years until the end of 1996 and was given more than 2 years'
L L
sick leave and follow up. There was a head concussion with
M a period of loss of consciousness, with post-concussion M
syndrome such as headaches and dizziness requiring
N N
painkillers. There was also a feeling of distress and difficulty
O in temper control. Total disability was assessed at 9% with O
loss of earning capacity assessed at 12%. PSLA was awarded
P P
at $360,000.00.
Q Q
(e) In Luk Yee Lam v Orasa Livasiri, HCPI 394/2002, the 40-
R R
year-old plaintiff was injured in a traffic accident and
S sustained a disc herniation at C5/6 level, with neck and back S
pain, and numbness and weakness in the upper limbs and
T T
hands and his right leg, and reduced sexual desire. The
U U
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- 16 -
A A
B B
impairment of whole body was 16%, and it was held to be
C close to the “serious injury” category, and $400,000 was C
awarded for PSLA.
D D
E (f) In Boivin v Wong King Yin & anor, HCPI 195/2000, the E
plaintiff suffered injuries in a traffic accident when she was
F F
the back seat passenger of a private car being struck forcefully
G by a light goods vehicle driven by the defendant from behind. G
She sustained a severe whiplash injury followed by neck and
H H
back pain, limitation of neck movement and headaches,
I numbness in two fingers of her left hand and pain radiating I
down her left leg from the buttock region with a possible need
J J
for future surgery to fuse two cervical vertebrae. Moreover,
K the plaintiff suffered post-traumatic stress disorder and K
depression which arose from the pain and it affected her work
L L
and personal social life. She was graded as being in the lower
M end of the serious injury category and was awarded damages M
of $475,000 for PSLA.
N N
O (g) In Chan So Kwan v Mak Siu Kwan and anor HCPI 1487/2000, O
the plaintiff was a bus captain of KMB and had a collision
P P
st
with a private car driven by the 1 defendant. She suffered a
Q whiplash injury which resulted in some persistent neck pain, Q
limitation in neck movement and occasional spasm of the
R R
neck muscle and with anxiety disorder, all of which prevented
S the plaintiff from returning to her pre-accident work. S
Damages of $300,000 was awarded for PSLA
T T
U U
V V
- 17 -
A A
B B
(h) In Razaq-Akhtar v Wang Hoi Transportation Ltd. HCPI 303
C of 2007, the plaintiff claimed against his employer after he C
had slipped and fallen down in the warehouse when carrying
D D
35 kilos boxes. He suffered from L5/S1 disc protrusion. He
E was awarded PSLA of $280,000. E
F F
31. The defendant, on the other hand, seeks to rely on the
G following cases and argues that the damages under this head should be in G
the region of HK$80,000 – HK$100,000.
H H
I (a) In Ho Kin Lon v. Wong Tin Chi DCPI 57/2010, the plaintiff I
complained of right hand, right knee and neck pain after a
J J
traffic accident. The experts concluded that there were soft
K tissue injuries to these areas. There was no neurological K
deficit. Damages of $100,000 was awarded for PSLA.
L L
M (b) In Au Suk Man v Chan Chi Wai DCPI 1213/2013, the plaintiff M
suffered whiplash injury in her neck in a traffic accident. She
N N
was put on a neck collar for 2 to 3 months. The experts agreed
O that there was only soft tissue injury. The Court found that O
the accident caused the pre-existing degeneration in the
P P
plaintiff’s C5/6 intervertebral disc to become symptomatic,
Q but most symptoms were resolved by the time of the trial. Q
Damages for PSLA was granted at $80,000.
R R
S (c) In Wo Wang Fu v Wong Kwok Hung HCPI 821/2014, the S
plaintiff suffered from mild soft tissue injury and adjustment
T T
disorder in a road traffic accident. The plaintiff was still
U U
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A A
B B
experiencing mild degree of stiffness and pain at his neck,
C headache and dizziness at the time of trial. There was no C
residue neurological deficit. A total of 4-month sick leave
D D
was granted to the plaintiff for adjustment disorder. Damages
E of $90,000 for PSLA was granted. E
F F
(d) In Leung Hiu Yan Hilda v Lam Kam Hung DCPI 220/2012,
G the plaintiff sustained soft tissue injury to her neck and back G
in a road traffic accident, injuries were at soft tissue level. The
H H
plaintiff has residual neck and back pain. The condition of
I the plaintiff’s neck and back had reached maximum medical I
improvement, conservative treatment consisted of drug and
J J
physiotherapy were considered appropriate and further
K institutional treatment not required. Damages of $80,000, K
with inflation having been taken into account, was awarded
L L
for PSLA.
M M
(e) In Lo Yim Fong v Ho Po Yin & anor DCPI 654/2010, the
N N
plaintiff sustained injuries to her neck, back, upper chest and
O lower leg following a road traffic accident. Injuries were at O
soft tissue level with no bony fracture or neurological deficit.
P P
The plaintiff complained of on and off neck soreness, lower
Q back pain and bilateral patella soreness. The plaintiff’s Q
conditions had reached maximum medical improvement. The
R R
plaintiff was considered to have suffered relatively minor
S injurie and had mild residual problems. She was able to return S
to work after 10 days. Damages of $80,000 was awarded for
T T
PSLA.
U U
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A A
B B
C (f) In Lai Ka Yin v Chan Yiu Kei DCPI 453/2008, the plaintiff C
sustained whiplash injuries to her neck and back as a result of
D D
a road traffic accident. He was hospitalised for 3 days and
E received physiotherapy afterwards. There was no fracture of E
the cervical spine. Both orthopaedic experts agreed that the
F F
plaintiff suffered from soft tissue injury of the neck and back
G with no evidence of any more serious injury. The plaintiff G
was considered as having reached maximum medical
H H
improvement. The Court considered that the plaintiff had
I only suffered a minor injury and had fully recovered. I
Damages of $50,000 was awarded for PSLA.
J J
K (g) In Wong Kin Hung v Chan Wai Ming DCPI 1223/2006, the K
plaintiff sustained injuries to his head, neck and right leg
L L
following a road traffic accident and was hospitalised for 2
M days. The injuries were found to be at soft tissue injury level. M
There was physiotherapy for 3 months but no complete
N N
recovery. The plaintiff suffered intermittent residual back
O pain. Damages of $70,000 was awarded for PSLA. O
P P
32. The cases relied upon by the plaintiff allowed damages for
Q PSLA in the region of $250,000 to $475,000. Some cases involving Q
circumstances very different from those of the present case, like Tam Wai
R R
Tuen v Seiko Screw Manufactory Ltd. and Razaq-Akhtar v Wang Hoi
S Transportation Ltd., where the plaintiffs suffered injuries whilst at work. S
The other cases involved plaintiffs suffering from far more serious injuries,
T T
for instance, requiring surgery and/or substantial hospitalization. In most
U U
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- 20 -
A A
B B
of those cases, the plaintiffs were considered to be in or close to the
C “serious injury” category. C
D D
33. In Lee Ting-lam v. Leung Kam-ming an infant by his next
E friend Leung Shu-wing [1980] HKLR 657, at 659, the Court of Appeal E
stated that the “serious injury” covered “cases where the injury leaves a
F F
disability which mars general activities and enjoyment of life, but allows
G reasonable mobility to the victim, for example the loss of a limb replaced G
by satisfactory artificial device, or bad fractures leaving recurrent pain”.
H H
The injuries suffered by the plaintiff in this case are obviously below, and
I not even close to, that category of “serious injury”. I
J J
34. On the other hand, the cases relied upon by the defendant,
K though more recent (decided in 2007 to 2017), disclosed circumstances less K
serious than those of the present case. Those cases approved damages for
L L
PSLA in the region of $50,000 to $100,000. Most of the plaintiffs in those
M case were described to have suffered only minor injuries. In particular, M
unlike the plaintiff in this case, they did not have any significant psychiatric
N N
problems.
O O
35. Although it was pleaded in the defendant’s Answer to Revised
P P
Statement of Damages that the damages should be discounted for the pre-
Q existing degeneration of multiple discs of the plaintiff 11, no submissions Q
were made in the defendant’s Opening and Closing Submissions. In any
R R
event, I am not prepared to give any discount in this aspect. There is no
S evidence that the plaintiff suffered from any neck or back pain prior to the S
T T
11
see para. 25 of the defendant’s Answer to Revised Statement of Damages at [39] of Bundle A
U U
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- 21 -
A A
B B
Accident. In one of the earlier medical reports by Dr Fung of Hong Kong
C Sanatorium and Hospital, it was stated that there was minimal degenerative C
12
changes at mid cervical spine . Both orthopaedic experts in the joint
D D
medical report did not say that the plaintiff would have the same symptoms
E due to natural progression of the pre-existing degeneration. Dr Kwok for E
the defendant did not state that the plaintiff would have developed the same
F F
symptoms even if the Accident did not happen due to the pre-existing
G degeneration. It was the agreed medical opinion of the experts that the G
plaintiff’s pre-existing degeneration was asymptomatic before the
H H
Accident.
I I
36. Whilst each case is to be decided on its own facts, having
J J
considered all the circumstances, as well as all the cases submitted by the
K parties, I am of the view that this case falls within somewhere between the K
cases provided by the plaintiff and those provided by the defendant. I have
L L
also taken into account that some of those cases were decided in the 2000s.
M I find that the reasonable and therefore appropriate damages under this M
head of PSLA in this case should be HK$250,000 and I so award.
N N
O Loss of earning capacity O
P P
37. An award for loss of earning capacity is to cover the risk that,
Q at some future point of time during the claimant’s working life, he will lose Q
his employment and will then suffer financial loss because of his
R R
disadvantage in the labour market, see Yu Kok Wing v Lee Tim Loi [2001]
S 2 HKLRD 306. S
T T
12
see medical report dated 19 May 2014 at [133] of Bundle A
U U
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- 22 -
A A
B B
C 38. The plaintiff used to work as a waitress, saleslady, receptionist C
and clerk. She quitted working in February 2012 when she was pregnant.
D D
She has been living on Comprehensive Social Security Assistance since
E then. She claims that she plans to go back to work when her son goes to E
Primary one i.e. September 2018. It is her case that her residual pain on
F F
neck/pain and her inability to stand, walk or sit for prolonged period would
G put her in a disadvantaged position to compete with others in the labour G
market.
H H
I 39. As early as on 24 June 2015, the orthopaedic doctor at the I
Pamela Youde Nethersole Eastern Hospital certified that the plaintiff was
J J
incapacitated to work and the disability was expected to last for a year13,
K that means up to June 2016. That was endorsed at least by Dr Lam in the K
joint medical report14. It is however noted that the plaintiff still submitted
L L
the review form for Comprehensive Social Security Assistance on 7
M September 201615. M
N N
40. On the orthopaedic aspect, both experts opined that the
O plaintiff should be able to return to employment as waitress, saleslady, O
clerk/receptionist or part-time domestic helper16.
P P
Q 41. On the psychiatric aspect, Dr Lai opined that the plaintiff’s Q
ability in adaptation to a work environment was similar to her ability as
R R
before the accident and the plaintiff could be considered as mentally
S S
13
see para. 102 of the joint medical report at [167] of Bundle A
T 14
See para. 103 of the joint medical report at [167] of Bundle A T
15
[548] of Bundle B
16
see para. 99 and 100 of the joint medical report at [166-167] of Bundle A
U U
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- 23 -
A A
B B
capable of returning to her previous employment or work appropriate to
C her working experience and physical abilities 17. Dr Tsai opined that there C
was no psychiatric basis for the plaintiff not to resume her pre-accident
D D
employment or work appropriate to her experience18.
E E
42. The plaintiff has voluntarily quitted work and been receiving
F F
Comprehensive Social Security Assistance since 2012. She still submitted
G the review form for Comprehensive Social Security Assistance on 7 G
September 2016 and was receiving assistance at the time of this hearing
H H
(i.e. close to 3 ½ years after the Accident), her intention or determination
I to return to the workforce is questionable. If she does intend to work again I
in the next few years, any difficulties she might encounter would be more
J J
likely to come from her prolonged voluntary unemployment and her age
K rather than any residual disabilities resulting from the Accident. In any K
event, as all experts agreed, the plaintiff should be fit enough, both
L L
physically and mentally, to return to her previous employment. In
M particular, I accept Dr Kwok’s opinion that the plaintiff’s residual back and M
neck pain symptoms should be minimal, they should not affect her physical
N N
function significantly and would not affect her capacity to perform
O moderate level of duty which is similar to those as waitress, saleslady, O
receptionist or clerk as she had pursued in the past 19 . There is no or
P P
insufficient evidence to suggest that the plaintiff would suffer a handicap
Q or disadvantage in the labour market as a result of her injuries caused by Q
the Accident. I am not satisfied on the evidence that the plaintiff has lost
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any earning capacity as a result of the Accident.
S S
T 17
see para. 102 and 104 of the joint psychiatric report at [209] of Bundle A T
18
see para. 107 of the joint psychiatric report at [210] of Bundle A
19
see para. 100 of the joint medical report at [167] of Bundle A
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B B
C 43. For the above reasons, I do not allow any award under this C
head.
D D
E Special damages E
F F
44. The plaintiff also seeks special damages for (a) medical
G expenses, (b) travelling expenses, (c) tonic food, (d) part-time domestic G
helper expenses, (e) laundry expenses and (f) drugs over the counter.
H H
I (a) Medical expenses I
J J
45. The plaintiff produced receipts for medical expenses incurred
K for the total sum of HK$13,360, which is acceptable to the defendant. I K
accordingly make an award of HK$13,360 for medical expenses.
L L
M (b) Travelling expenses M
N N
46. The plaintiff claims traveling expenses, namely taxi fares, for
O a total sum of $49,940.70 covering a period from 16 May 2014 to 30 O
November 2016. She accepts that parts of the taxi fares were for taking
P P
her son to school, going to market and running some other personal errands.
Q The plaintiff, by relying on certain case authorities 20, argues that all those Q
R R
S S
20
Travelling expenses incurred by the victim’s wife to visit the victim in hospital were granted in Tam
Kwok Tung v Lam Wai Chun & ors HCA 5913/1984; taxi fares incurred for taking the victim to school
T were allowed in Nazir Begum Din & Fahimah Din (an infant) v Lee Kwei Ying Peggy & anor HCA T
3811/1980; costs of post-accident driving lessons incurred by the plaintiff were allowed in Lai Po Wah
v Chan Woon Sum & anor HCA 4314/1982
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B B
expenses are reasonably incurred but would accept a deducted sum of
C HK$19,767.3021. C
D D
47. The defendant, on the other hand, argues that the travelling
E expenses claimed are excessive and/or disproportionate and/or unjustified. E
It is emphasized that a substantial part of the taxi fares was incurred after
F F
8 pm (over HK$17,000) and/or on Sundays or public holidays (over
G HK$15,000)22. It is also submitted that the taxi fare receipts showed a G
pattern of the plaintiff hiring taxis at different and irregular hours which
H H
does not support her claim of taking her son to and from school. The
I defence prepared a table showing that all the travelling expenses incurred I
for medical treatments at different hospitals and clinics, according to the
J J
taxi fare receipts provided by the plaintiff, were in the total sum of
K HK$2,546 only. The defendant argues that only a reasonable sum of K
HK$3,000 for travelling expenses should be allowed.
L L
M 48. It is important to note that the plaintiff, in the Revised M
Statement of Damages, claimed only “travelling expenses when attending
N N
medical treatment by taxi” 23. In any event, I do not find the cases relied
O upon by the plaintiff as mentioned in paragraph 46 above relevant as they O
were dealing with travelling expenses of different nature or incurred under
P P
different circumstances. I agree with the defence that the reasonable sum
Q under this head should be HK$3,000 and I so award. Q
R R
(c) Tonic food
S S
T 21
see para. 43 and 71 of the plaintiff’s closing submissions T
22
see para. 28 of the Answer to Revised Statement of Damages at [40-43] of Bundle A
23
see para. 13(b) of the Revised Statement of Damages at [25] of Bundle A
U U
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A A
B B
C 49. The plaintiff seeks to recover HK$25,000 for tonic food, but C
she could not produce any receipts except two issued by a Lam Kee
D D
Seafood Products Company Limited for a total sum of HK$19,400 for
E cordyceps (冬蟲夏草). She testified during the hearing that she was E
advised by a doctor in Chick’s TCM Health Centre to take cordyceps to
F F
assist her recovery.
G G
50. The defendant pointed out that the plaintiff’s version of taking
H H
Chinese doctor’s advice to take cordyceps was not mentioned at all in her
I witness statement. There is no evidence to suggest that tonic food was I
necessary and in any event, the amount claimed was grossly exaggerated.
J J
The defendant suggests that a global sum of HK$3,000 should be awarded.
K K
51. It was held in Chan Hung Hang v Fat Kee Marine Repairing
L L
and Engineering Co DCPI 2328/2007 that where there is no evidence
M showing the advisability and suitability of tonic food purchased, only a M
nominal sum should be awarded.
N N
O O
52. There is no evidence as to why and how the cordyceps were
P
necessary or required for the recovery of the plaintiff in this case. I P
therefore would award, as suggested by the defendant, a sum of HK$3,000
Q Q
for tonic food.
R R
S S
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B B
(d) Laundry expenses
C C
53. The plaintiff, by producing receipts covering a period from 10
D D
August 2014 to 19 November 2016, claims laundry expenses for the total
E sum of HK$4,061. E
F F
54. The defendant in the Answer to Revised Statement of
G Damages pleaded that laundry expenses were unnecessary as the plaintiff G
had already employed a domestic helper for household chores 24 . The
H H
plaintiff in her witness statement stated that, due to her neck and waist/back
I pain, she was unable to wash duvets, beddings and other large items at I
home and needed to take them to the laundry shop (note: only a sum of
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HK$2,575 was claimed in the witness statement)25. In her own version to
K the psychiatrists, she said she “do[es] household chores including packing K
up and machine laundry”26. The defence argues that the plaintiff seems to
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suggest that she did her daily laundry at home while taking the large items
M to the laundry shop. That version is inconsistent with the laundry receipts M
which showed that the plaintiff visited the laundry shop once every few
N N
days but only 11 receipts were marked with items of duvets. The defence
O argues that the laundry expenses were unnecessary, unrelated to the O
plaintiff’s injuries and should not be allowed.
P P
Q 55. No doubt the plaintiff had been injured in the Accident. As Q
mentioned above, the doctors suggested sick leave for slightly more than a
R R
27
year and her disability would last for another year thereafter . It is
S S
24
see para. 30 of the Answer to Revised Statement of Damages at [44] of Bundle A
T 25
see para. 18(d) of the plaintiff’s witness statement at [129] of Bundle A T
26
see para. 35 of the joint psychiatric report at [180] of Bundle A
27
see para. 25 above
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A A
B B
therefore reasonable for her to take part of her laundry, in particular the
C large items, to the laundry shop. I am prepared to allow half of the sum C
claimed, which in my view is a reasonable sum. I make an award of
D D
HK$2,000 for laundry expenses.
E E
(e) Part-time domestic helper expenses
F F
G 56. It is the plaintiff’s case that, because of the injuries suffered G
as a result of the Accident, she was unable to do the household chores like
H H
cleaning the toilet and kitchen, wiping and mopping the floor, washing,
I ironing, grocery shopping, cooking, cleaning the furniture and the windows I
etc. and needed a part-time domestic helper to help her. The plaintiff
J J
produced a “Domestic Helper Work and Salary Record” which were in the
K form of tables setting out the date and time of working and the salary K
received by the part-time domestic helper, covering a period from 13
L L
January 2015 to 29 November 201628. A total sum of HK$67,023 was
M claimed under this head in the Revised Statement of Damages 29. M
N N
57. The defendant argues that the plaintiff only hired a part-time
O domestic helper since 13 January 2015, which was more than half a year O
following the Accident in May 2014. Her explanation in Court that she
P P
was assisted by relatives from May 2014 to January 2015 was never
Q mentioned in her witness statement. There is no suggestion that the Q
plaintiff was unable to carry out the work of a part-time home helper since
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January 2015 due to the injuries sustained in the Accident in May 2014.
S The defendant argues that hiring a part-time domestic helper from January S
T T
28
see [467-487] of Bundle B
29
see para. 13(e) of the Revised Statement of Damages at [26] of Bundle A
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A A
B B
2015 onwards was unnecessary and any amount claimed under this head
C should not be allowed. C
D D
58. It is noted that, on 22 January 2015, the plaintiff was
E suggested by the Social Welfare Department to try the job of a part-time E
domestic helper but it was found out that “the work capacity (of the
F F
plaintiff) demonstrated during the assessment was not matched with the
G home helper job demands due to fair right hand endurance to cope with G
cleaning and lifting tasks” 30. That lends support to the plaintiff’s claim that,
H H
after the Accident, she could not perform household chores herself and
I required the assistance of a part-time domestic helper. I
J J
59. As mentioned above, the doctors suggested sick leave for
K slightly more than a year from the date of Accident and, her disability K
would last for another year thereafter31, i.e. up to June 2016. As such, the
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expenses for part-time domestic helper for the period from July to
M November 2016, i.e. HK$17,550 (HK$3,510 x 5 months)32, should not be M
allowed.
N N
O 60. Also, I am of the view that the hiring a part-time domestic O
helper to come for 3 hours every other day (i.e. thrice a week), in the
P P
plaintiff’s case (she is living with her son in a public housing estate unit),
Q is excessive and unnecessary. It would have been reasonable to engage the Q
service of a part-time domestic helper twice a week in the circumstances
R R
of the plaintiff.
S S
T 30
see para. 2 of the occupational therapy report at [143] of Bundle A T
31
see para. 25 above
32
See tables of the expenses of part-time domestic helper at [483-487] of Bundle B
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A A
B B
C 61. I would therefore deduct HK$17,550 from the amount C
claimed and then discount it by one-third. I would award HK$32,982
D D
[(HK$67,023 – HK$17,550) x 2/3] for the part-time domestic helper
E expenses incurred by the plaintiff. E
F F
(f) Drugs over the counter
G G
62. The plaintiff claims expenses of HK$5,000 for drugs like
H H
ointment etc. for pain relief from time to time 33. The defendant objected.
I I
63. There were no submissions made by the plaintiff during the
J J
hearing in this regard, nor was there any medical or documentary evidence
K ever submitted. I make no award under this head. K
L L
64. The special damages which I would allow for the plaintiff
M include, (a) medical expenses of HK$13,360, (b) travelling expenses of M
HK$3,000, (c) tonic food of HK$3,000, (d) laundry expenses of HK$2,000
N N
and (e) part-time domestic helper expenses of HK$32,982, and the total
O amount is HK$54,342. O
P P
Future expenses
Q Q
65. The plaintiff also seeks damages to cover (a) future medical
R R
expenses in the sum of HK$20,000 or HK$2,000 and (b) future expenses
S S
T T
33
see para. 13(f) of the Revised Statement of Damages at [26] of Bundle B
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A A
B B
for part-time domestic helper in the sum of HK$37,440, both objected by
C the defendant. C
D D
(a) Future medical expenses
E E
66. The plaintiff asks for medical expenses for consulting private
F F
psychiatrist in the future for the total sum of $20,000 ($2,000 per session x
G 10)34, or alternatively, for a psychiatrist in public hospital for the total sum G
of HK$2,000 ($200 per session x 10)35.
H H
I 67. The plaintiff has been receiving psychiatric treatment from I
public hospitals since 2004. Even Dr Lai, instructed by the plaintiff, opined
J J
that she could continue her further treatment in the public psychiatric
K clinic36. The claim for medical expenses for private psychiatrist must fail. K
In the summary of the joint psychiatric report dated 5 January 2017, Dr Lai
L L
opined that the plaintiff at that time had mild residual psychiatric
M symptoms whereas Dr Tsai (instructed by the defendant) found her to have M
recovered37. If the plaintiff is requiring any further psychiatric treatment
N N
from any public hospital in the future, as she did in the last 10 odd years, it
O has nothing or little to do with the Accident. I make no award under this O
head.
P P
Q Q
R R
S S
34
see para. 16 of the Revised Statement of Damages at [27] of Bundle B
T 35
see para. 43 and 80 of the plaintiff’s closing submissions T
36
see para. 94-95 of the joint psychiatric report at [207] of Bundle A
37
see para. 111a of the joint psychiatric report at [211] of Bundle A
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B B
(b) Future expenses for part-time domestic helper
C C
68. The plaintiff claims that she still needs assistance from a part-
D D
time domestic helper to help her with the housework for another 12 months
E and will therefore incur a further sum of HK$37,440 (HK$3,120 x 12)38. E
F F
69. As I have found that the plaintiff should not be entitled to
G recover any expenses for part-time domestic helper after July 2016 39 , I G
would not allow any claim for future expenses for part-time domestic
H H
helper.
I I
Disposal
J J
K 70. In summary, I would award damages for the plaintiff as K
follows:-
L L
M PSLA HK$250,000 M
Loss of Earning Capacity Nil
N N
Special Damages HK$54,34240
O Future Expenses Nil O
Total: HK$304,342
P P
Q Q
R R
S S
T 38
see para. 15 of the Revised Statement of Damages at [27] of Bundle B T
39
see para. 59 above
40
for the breakdown, see para. 64 above
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A A
B B
71. I also allow interests as follows:-
C C
(a) 2% per annum for damages for PSLA from the date of service
D D
of the writ to the date of this assessment;
E E
(b) half judgment rate for special damages from the date of the
F F
Accident to the date of this assessment; and
G G
(c) judgment rate on the final award from the date of this
H H
assessment until full payment by the defendant.
I I
72. Costs should follow the event. I make an order nisi, which
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shall become absolute in the absence of any parties’ objection in 14 days,
K that the costs be to the plaintiff, with a certificate for counsel, to be taxed K
if not agreed. The plaintiff’s own costs shall be taxed in accordance with
L L
the Legal Aid Regulations.
M M
73. I thank both counsel for their useful assistance.
N N
O O
P P
Q ( Edmond Lee ) Q
District Judge
R R
S Ms Lorinda Lau, instructed by Hon & Co., assigned by the Director of S
Legal Aid, for the plaintiff
T T
Ms Phyllis Lee, instructed by Kenneth C. C. Man & Co, for the defendant
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