LO WAI YIN v. LI CHUN KOU

HCPI 26/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 26 OF 2006

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J U D G M E N T

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I.  INTRODUCTION

1. On 11 January 2003, the 30-year-old Miss Lo sustained serious injury in a traffic accident when the motorbike on which she was carried as a passenger was hit head-on by a taxi.

2. She was still conscious when admitted to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital (“the Hospital”).

3. A writ was issued on 9 January 2006 against the driver of the taxi for damages arising from the accident.  Interlocutory judgment was entered on 3 February 2006.

4. This is a trial on the assessment of damages.

5. The medical reports of the Hospital, and its medical records were agreed.  The reports by the parties’ orthopaedic and psychiatric experts were ordered to be adduced without oral evidence by the order of Master Kwan.

II.  INJURIES & TREATMENTS

(A)  ORTHOPAEDIC

6. Miss Lo suffered a fracture right ilium (the upper pelvic bone).  Operation by open reduction and internal fixation by screws was performed 6 days after the operation on 17 January 2003.  The operation had been delayed because Miss Lo had taken some time to consider the options of traction and surgery, and – upon Miss Lo deciding on the option of operation – the Hospital’s administrative problem of scheduling the operation.

7. Miss Lo was discharged on crutches from the Hospital on 30 January 2003 after she had already received one week of physiotherapy.

8. After discharge, Miss Lo attended 3 follow-up sessions at the Hospital before she traveled to Australia on 27 March 2003 to get married on a Prospective Marriage (temporary) Visa, requiring her to enter Australia before 29 March 2003.

9. She got married in Australia on 22 April 2003, and came back to Hong Kong about a month later.  She had 2 more follow-up sessions by the Hospital after her return to Hong Kong.  The Hospital closed Miss Lo’s treatment file for her orthopaedic injury on 13 May 2003.  Miss Lo’s condition at the time of the discharge was recorded in the report dated 16 September 2005 by Dr. Kou, the orthopaedic surgeon of the Department of Orthopaedic & Traumatology of the Hospital. In it, Dr. Kou opined that Miss Lo’s surgical wound healed well, and further observed that she could walk unaided without any limp.

10. After the treatment with the Hospital was completed, Miss Lo – between the period of June 2003 and the second operation for the removal of the metal screws in June 2006 – received treatments from a private orthopaedic surgeon, Dr. Fang, and from a physiotherapist for a total of about 5 times.

11. Whilst in Australia, she also sought osteopathic, chiropractic as well as acupuncture treatments for a total of about 8 times between January 2004 to October 2005.

12. Upon the advice of Dr. Fang, Miss Lo underwent a second operation to remove the metal screws in June 2006.  Afterwards, Miss Lo had another 4 consultations from Dr. Fang up to January 2008 and 20 private physiotherapy sessions up to August 2008.

(B)  PSYCOLOGICAL/PSYCHIATRIC

13. Upon discharging Miss Lo from orthopaedic treatment, the government orthopaedic doctor referred her to see a government clinical psychologist for consultation “for trauma related emotional disturbances”.

14. On 26 May 2003, Miss Lo was attended by a clinical psychologist of the Hospital, Miss Liu.  She was found to have shown mild post-traumatic symptoms stress, and was given a follow-up appointment on 18 September 2003, but Miss Lo failed to attend the appointment.

15. On 25 September 2006, Miss Lo started consulting a private psychiatrist, Dr. Lai, from whom Miss Lo received altogether a total of 27 sessions of treatment up till August 2008.

16. Miss Lo received one counseling session with the Mental Health Association of Hong Kong (“MHA”) in December 2006 on the recommendation of Dr. Lai.

(C)  COSMETIC

17. The two operations have left Miss Lo with a C-shaped, 15-cm long scare on her right buttock.  Miss Lo has not undergone any operation to eliminate the surgical scar.

III.  DAMAGES CLAIMED

18. Miss Lo claims various heads of damages including the usual heads of claim for Pain, Suffering and Loss of Amenities (“PSLA”), pre-and-post trial loss of earnings, and medical expenses.

19. All the medical expenses in respect of the treatments incurred in the Hospital and in Australia, and 11 out of the total of 27 consultations with Dr. Lai are agreed.  The special damages are also not disputed.  Sick leave of 216 days is also agreed.

20. However, the claims in respect of the amount for PSLA, the costs of private medical treatments, the level of Miss Lo’s pre-accident earnings, which in turn impacts on her claim for pre-trial loss of earnings, loss of earning capacity, and the cost of future operation are highly contentious.

IV.  EVIDENCE

21. Miss Lo was the only witness in this trial.

22. The orthopaedic experts are Drs. Au Ka Kau and Chan Sai Keung for Miss Lo, and Dr. Lam Kwong Chin for the Defendant.  Dr. Au’s reports dated 7 October 2005 and 21 January 2006 were included for reference, whilst the report of Dr. Lam dated 7 March 2006 and the joint report (“the Joint Report”) by Drs. Chan and Lam dated 6 December 2007 were admitted as evidence.

23. The psychological/psychiatric expert evidence consists of reports of Dr. Chung See Yuen (Miss Lo’s expert) dated 4 February 2008 and 2 May 2008, and the report of Dr. Wong Chung Kwong (the Defendant’s expert) dated 31 March 2008.  These report were likewise admitted as evidence.  Miss Lo has also included the report of Dr. Lai dated 10 January 2006 for reference.

(A)  ORTHOPAEDIC EXPERT EVIDENCE

24. Before Miss Lo underwent the second operation to remove the screws, she was examined by Dr. Au on 8 September 2005, and by Dr. Lam on 2 March 2006 for the purpose of litigation.

25. In his report, Dr. Au found that Miss Lo had soreness over the right side of her buttock and weakness on the right leg.  She was also found to be suffering from low back pain, and limitation of movement on the right hip as a result of the accident.

26. Dr. Au opined that Miss Lo had received appropriate treatment and that further conservation treatment would not have improved her condition.  Dr. Au however recommended surgery to remove the screws.

27. In his report, Dr. Lam commented that the fracture healed well, and Miss Lo’s residual pain would diminish gradually without any specific treatment.  Dr. Lam also recommended surgery for the removal of the implants to improve the residual pain of the wound.

28. Dr. Lam further opined that Miss Lo could continue with her sports activities such as cycling and hiking, and the fracture would not affect her pregnancy or capacity to have sex.

29. After the screws were removed, Miss Lo was jointly examined by Drs. Chan and Lam on 29 October 2007.

30. In the Joint Report, Drs. Chan and Lam found mild tenderness at the scar over the right posterior ilium.  Both experts agreed that Miss Lo’s condition had stabilized without any need for treatment, and that she could continue with her pre-accident activities and employment.  The only area that the experts were not able to agree on was whether the fracture could have affected her capacity to have sex.  Dr. Lam said it could not have, while Dr. Chan said it might have if Miss Lo’s sexual partner compressed her pelvic scar in a supine position.

(B)  PSYCHIATRIC EXPERTS

31. Miss Lo was first seen by Dr. Lai on 9 December 2005.  In his report, Dr. Lai found that Miss Lo suffered from two psychiatric conditions – post-traumatic stress and adjustment disorder with depressed symptoms as the result of the accident.  Dr. Lai recommended psychiatric treatment. He did not think permanent impairment upon completing the recommended psychiatric treatment would have been likely.  Neither did he think that the aforesaid psychiatric conditions would affect Miss Lo’s fitness to return to her pre-accident work as a sales executive, though they might affect her work efficiency.

32. Dr. Lai recommended Miss Lo to receive 10 more psychotherapy sessions and 5 marital therapy sessions.

33. On 9 March 2006, Miss Lo was examined by Dr. Wong.  Dr. Wong opined that Miss Lo only suffered from mild symptoms of Post-Traumatic Stress Disorder (“PTSD”) in the first few months of the accident, but was otherwise free from any psychiatric symptoms.  Dr. Wong confirmed that Miss Lo suffered from adverse psychological reactions, which could be managed by 15 one-hour private psychotherapy sessions.

34. Miss Lo’s expert, Dr. Chung, interviewed Miss Lo on 24 January 2008 for about 2½ hours.  From the examination, Dr. Chung found that Miss Lo has been suffering from PTSD as a result of the accident and that it was bad in the beginning.  Dr. Chung found that Miss Lo was still suffering from residual symptoms of the disorder in the form of mild anxiety and depression.  He agreed with Dr. Wong that Miss Lo was fit to return to her pre-accident job.  Dr. Chung further recommended her to continue with psychological treatments for another one year at an interval of about one treatment in every 2 to 3 weeks.

35. Drs. Wong and Chung each wrote a report on 31 March 2008 and 2 May 2008 respectively to comment on the other’s report.  They have arrived at divergent diagnosis of Miss Lo’s mental condition.  Dr. Wong opined that Miss Lo only suffered from some symptoms of PTSD, which were not sufficient for making a diagnosis of PTSD.  Dr. Chung however maintained his original diagnosis that Miss Lo had suffered from PTSD but the condition had improved and stabilized.

(C)  MISS LO’S EVIDENCE

(i)  Personal background

36. Miss Lo is presently 36 years of age.  She left Hong Kong for Australia at the age of 17 to pursue her studies there.  In 1997, upon obtaining her undergraduate degree in business (accounting) from the University of Central Queensland, Australia, Miss Lo came back to Hong Kong to seek employment.

37. Miss Lo’ first few jobs after her graduation were in the accounting and financial fields.  Later, she shifted from these fields and worked in the field of garment merchandising.  Before the accident, she worked as a sales and financial executive in Winnie Shop – a shop selling tourist merchandizes, and was owned by Miss Lo’s elder brother and sister.

38. Before the accident in January 2003, Miss Lo had in fact planned to marry the man with whom she went to the same university.  An application for a marriage sponsored visa to enter Australia for the anticipated marriage had already been made in June 2002.

39. Due to the deadline imposed by the entry visa, Miss Lo, though still on crutches (and she was in fact on crutches for 3 months after the operation) went ahead with the marriage plan, and registered her marriage on 22 April 2003 in Australia.

40. After the marriage, Miss Lo had to divide her time between Brisbane (her matrimonial home in Australia) and Hong Kong.  In around December 2004, she found out that her husband had cheated on her while she was in Hong Kong, and wanted to divorce her.  Eventually the marriage was dissolved by an Australian court in June 2007.

41. Miss Lo had blamed the accident for the breakdown of the marriage.

(ii)  Treatments

42. Miss Lo said that although the Hospital had closed her file after the visit on 13 May 2003, she continued with private orthopaedic treatment because she still suffered from residual pain.  In addition, she also received- upon Dr. Fang’s advice- physiotherapy treatments until October 2008.

43. Miss Lo no longer requires any more treatment for her hip injury.  At the hearing, she said her back pain has improved.  She still occasionally suffered pain at the right side of her pelvic especially when she worked long hours.  The pain was managed by painkillers.

44. Out of Miss Lo’s expectation, the appearance of the surgical scar, after the removal of the screws in June 2006, looked much worse because it became thicker and wider.  She felt unhappy about it. Dr. Fang therefore referred her to see a plastic surgeon, Dr. Lam Lai Kan for advice about the scar.  Miss Lo said she was thinking about doing the surgery to improve the appearance of the scar.

45. After the second operation, Miss Lo still felt depressed, and had problem with sleeping.  She therefore went to seek treatment from Dr. Lai in September 2006 after having first consulted him in December 2005 for the purpose of litigation. She was prescribed with anti-depressive and sleeping pills.

46. Upon the recommendation of Dr. Lai, Miss Lo received a 3-hour session from the MHA in December 2006.  Miss Lo said she felt better after that session.

47. Miss Lo has now ceased all treatments.  She still occasionally requires sleeping pills to help her sleep (and painkillers as stated in paragraph 43 above).

(iii)  Employment History

48. Upon returning to Hong Kong after completing her tertiary education in Australia, Miss Lo, within a period of 6 years, had done more than 6 jobs before the accident in January 2003.  Her last job before the accident was with Winnie Shop as a sales and financial executive.

49. Initially, Miss Lo had worked in the accounting field with the first job lasting for about 4 months as an audit trainee, the second job as a financial administrative executive for 10 months, and the last one in the accounting field was the job as an assistant accountant, which lasted for about 22 months.

50. In 2000, Miss Lo changed field, and worked as an investment consultant for about 3 months.  Afterwards, she assisted her friends in garment merchandising for about 22 months while at the same time working as an assistant accountant on a freelance basis for a shop owned by her brother called Big One Garment for about 3 months.

51.  Before working for Winnie Shop in November 2002 until the accident, Miss Lo worked as a sales executive in an excursion company called Sail and Sour Again Excursion (“SS”).

52. After the accident, she resumed working part time for Winnie Shop in December 2004 until September 2008.  On the date of the hearing, Miss Lo was doing 2 part-time jobs – as a day supervisor in a private club and as an office assistant in a trading firm.

V.  DISCUSSION

53. After I have listened to and observed Miss Lo when giving evidence in court in the course of 2 days, I am satisfied that she has by and large told me the truth regarding her employment, the treatments she received, why she needed them, and how she has felt physically and psychologically.

54. On the evidence, I find that Miss Lo has substantially recovered well both physically and mentally from the accident, and no longer requires (apart from the claim for cosmetic treatment to be discussed below) any further treatment. She is also in gainful employment.

55. As contentions are numerous in this case, I will in the paragraphs below examine each in turn with reference to Miss Lo’s evidence, the medical as well as the documentary evidence adduced in the trial.

(A)  CONTENTIONS

(i)  Consultations with Dr. Fang and private physiotherapy treatments

56. After the Hospital had closed Miss Lo’s file on 13 May 2003, Miss Lo had continued private treatments with Dr. Fang on 11 June 2003, 20 October 2003 and 16 February 2005, and further received 2 private physiotherapy treatments respectively on 17 and 22 February 2005.

57. The costs of these private treatments are disputed on the ground that they have been unreasonably incurred especially when the orthopaedic report from the Hospital confirmed that Miss Lo had recovered well when her treatment with the Hospital was completed.

58. Miss Lo gave an explanation for the treatments  - that she still felt pain around the surgical wound, especially at the area where the metal screws were inserted.  She said that she found the painkillers prescribed by Dr. Fang, and the treatments in the forms of electro therapy, heat pad and massage by the private physiotherapist (recommended by Dr. Fang) had helped alleviate the pain.

59. Although the Defendant disputed the costs of the private treatments, I note however that he has not challenged Miss Lo’s sick leave certificates for low back pain, the expenses incurred for painkillers from the public dispensary as well as the costs of the private orthopedic and acupuncturist in Brisbane in January 2004, which were all within the same period of Miss Lo’s private treatments.

60. I further note that there was a diagnosis of low back pain and reference to right lower limb weakness by Dr. Fang during this consultation period.

61. Before the second operation, Dr. Au had also examined Miss Lo in September 2005.  According to his report dated 7 October 2005, Dr Au found that Miss Lo had tenderness over her right paraspinal muscle of the lower lumbar region when she lay prone (paragraph 8.2), and that she also suffered lower back pain.

62. In the report dated 7 March 2006 prepared after the examination of Miss Lo in March 2006, Dr. Lam also recorded in his report that Miss Lo complained of residual pain (paragraph 17).  Dr. Lam also opined that the removal of the implants would be able to reduce the pain.

63. After having looked at the evidence aforesaid, I am satisfied that during the period before Miss Lo had undergone the second operation to remove the screws, Miss Lo was still suffering from low back pain.

64. Although Drs. Au and Lam had said that no further conservative treatment would be required, I find that it was reasonable for Miss Lo to continue with private orthepaedic and physiotherapy treatments to relieve the residual pain.  I am satisfied on the evidence that the 5 private treatments before the operation to remove the implants are reasonable.

(ii)  The second surgery for the removal of screws

65. Acting on the medical advice of Dr. Fang, Miss Lo underwent a second operation to remove the metal screws by Dr. Fang on 21 June 2006.  There is no dispute that the operation was conducive to the pain improvement.

66. The contention however is whether it is reasonable for Miss Lo to have received operation in the private sector, and further that whether its expenses are reasonable.

67. Counsel for the Defendant, Mr. Chan, contended that Miss Lo had failed to mitigate her loss.  He said that as the orthopaedic experts have clearly opined in the Joint Report that the operation could have done by the attending doctors at the Hospital at nominal costs, the expenses for the private treatments were then unreasonable, relying on the decisions of Tsui Nuem v Cheung Wai Kuen (unrep.)[1], Phoon Ka Wai v Wong Ka Chung (unrep.)[2], and Chow Cheung Ching v Right Base Construction & Engineering Company Limited (unrep.)[3], in which the court has disallowed the respective plaintiffs’ private medical expenses.

68. It was contended by Mr. Chan that as the Hospital had previously successfully operated on her, it is unjustifiable for Miss Lo to have gone to the private sector for treatment.  Further, Mr. Chan also suggested that in terms of time, Miss Lo had had plenty of time to make arrangement for the second operation to be done in a government hospital had she acted reasonably because it is not disputed that Dr. Fang had, as early as June 2003, recommended her to go for the removal operation.

69. Miss Lo’s explanation for her preference to the private sector is that she found her 3-weeks’ stay in the Hospital a very unpleasant experience.  She said she was so traumatized by the ordeal that she had put off the second operation until June 2006 despite Dr. Fang’s recommendation for the second operation to be performed after one year of the first operation; and the full knowledge that the removal surgery would be conducive to reducing pain.

70. When Miss Lo recounted her experience in respect of the operation in the Hospital, I observed that she had shown a genuine fear for operation.  There is no doubt that any traffic victim suffered from a broken pelvic would not find any hospital experience pleasant.  In the case of Miss Lo, I am more inclined to believe that the unpleasant experience was much compounded by the fact that Miss Lo was only operated on 5 days after the accident.

71. In the circumstances, I find that Miss Lo’s decision to have the operation done by Dr. Fang – a doctor in whom she said she has confidence  – is entirely reasonable.  I do not find the authorities Mr. Chan has cited are of any assistance as each case has to be decided on its own facts. In Miss Lo’s case, I am satisfied that Miss Lo should be able to recover all the reasonable costs incurred for the private removal operation.

(iii)  Treatments after the second operation

72. After the second operation, Miss Lo received further follow-up consultations from Dr. Fang, as well as private physiotherapy sessions, the reasonableness of which expenses is disputed.

73. In contending against the reasonableness in respect of Miss Lo’s claim for the private medical expenses incurred after the second operation, Mr. Chan relies on the Joint Report prepared after the examination of Miss Lo in October 2007.

74. In the Joint Report both experts have opined that the residual pain would be diminishing with time without treatment.  Hence, Mr. Chan contended that it would not have been reasonable for Miss Lo to have continued to incur further medical expenses.

75. In the report by Dr. Fang dated 21 June 2006, he recommended Miss Lo to receive post-operation follow up treatment at an interval of  2 times weekly for about 6 weeks after the operation, and afterwards once a year for 2 years if there was no complication.  Physiotherapy treatments for the same frequency and duration were also recommended.

76. Dr. Fang had been treating Miss Lo for quite sometime before the operation, and was also the surgeon performing the second operation, he would have been – in my view – most familiar with Miss Lo’s condition. I am therefore inclined to accept his opinion on the post-operation treatments stated in paragraph 75 above.

77. In the circumstances, I find that the post-operation follow-up consultation is reasonable, and its reasonable expenses should be allowed.

78. In July 2006, Miss Lo received 5 sessions of private physiotherapy for her back pain.  I find these sessions are likewise reasonable, and their reasonable costs should be allowed.

79. On 13 July 2006 and 8 September 2006, Miss Lo consulted Dr. Fang.  Miss Lo also received two further private physiotherapy treatments between these consultations.  The private treatments incurred in 2006 are, in my view, consistent with Dr. Fang’s recommendation, and their reasonable costs should be allowed.

(iv)  Consultations with Dr. Fang and private physiotherapies in 2008

80. On 23 January 2008, Miss Lo consulted Dr. Fang for low back pain, and 6 days later, received one session of private physiotherapy.

81. Thereafter, Miss Lo had 14 more sessions by the private physiotherapist in 2008 – 5 times in February, 3 times in March, once in April, 2 times in each of the months of June and July, and the last time was on 14 August 2008.

82. Mr. Chan objects to the recovery by Miss Lo of the expenses for the 16 treatments for the same reason that the orthopaedic experts had already opined in the Joint Report that no further treatments would have been required.

83. The orthopaedic experts examined Miss Lo in a joint session on 29 October 2007, about 16 months after the removal operation.  Whilst the orthopaedic experts opined that no further treatments were to be required, their findings as recorded in paragraph 52 of the Joint Report, however confirmed that Miss Lo still complained of soreness at the right low back and buttock during various activities, and that she had mild tenderness at the scar over the right posterior ilium.  The said findings as noted by the experts, in my view, suggest that Miss Lo still suffered residual pain after the second operation. 

84. As to whether, and for how long, Miss Lo suffered residual pain after the second operation, I find - apart from the evidence of the Joint Report - there is also evidence from Dr. Chung See-yuen, who has similarly recorded Miss Lo’s complaint of back pain in his report preparedafter the examination of Miss Lo on 24 January 2008 (see paragraph 16.1 of the report dated 4 February 2008).

85. Further, Miss Lo has also told me during the trial that she was still suffering from mild back pain though it was not as bad as before.  I believe her complaint is genuine.  Hence, I believe Miss Lo has been suffering from residual pain, which had likely persisted up to sometime in 2008.

86. On the reasons aforesaid, I am satisfied that Miss Lo’s treatments in 2008 were reasonably required for the purpose of relieving the residual back pain, and their reasonable costs should therefore be allowed.

(v)  The extent of Miss Lo’s psychiatric condition

87. There is no dispute that Miss Lo suffered from some symptoms of PTSD, and that reasonable psychiatric/psychological treatment ought to be allowed.  The heart of contention lies however with the extent of her mental problem, and whether Miss Lo’s condition was exacerbated by her personal circumstances rather than by the accident.

88. Of the 27 treatments Miss Lo had received from Dr. Lai between the period of September 2006 and August 2008, the Defendant only agreed to11 of them, and disputed the expenses for the remaining treatments (including one consultation with MHA) on the ground that the full extent of Miss Lo’s mental condition – as Dr. Wong has opined – was not entirely caused by the accident, but by many other unrelated unhappy events after the accident. 

89. According to Dr. Wong, Miss Lo’s psychiatric problem was caused not by the accident alone, but by many other unhappy and stressful events of what Dr. Wong described as stressors – the breakdown of her marriage, her mother’s cancer relapse, the difficult relationship with her brother’s live-in girlfriend with whom Miss Lo shared the flat, her gloomy outlook of her career prospect, her preference to live in Australia than in Hong Kong – which were contributing factors exacerbating her psychiatric condition, thereby requiring more extensive and longer treatment.

90. In his report, Dr. Wong concludes that

“It is difficult to apportion weight to the various causative factors, bearing in mind that causation in psychiatry is usually multiple and interactive.  I think a fair broad-brush approach is to take the accident as one group of factor, and all the other stressors together as another group.  It is fair to say that these two broad groups of stressors are equally important.  As such, I recommend that the accident should be taken as contributing to half of the causation of Miss Lo’s current residual psychiatric problem and psychiatric treatment needs.  Miss Lo has been receiving psychiatric treatment from Dr. Benjamin Lai.  I recommend that Miss Lo should continue to see Dr. Lai for one more year”

(paragraphs 23 and 24)

91. There is no dispute that that Miss Lo already exhibited symptoms of PTSD shortly after the accident (see Miss Liu’s conclusion set out in paragraph 14 above).

92. In his report, Dr. Wongidentified a lot of psychological problems confronting Miss Lo.  However, he had declined to make a diagnosis of PTSD (paragraph 45 of his report), but only confirmed that Miss Lo had suffered from some symptoms of PTSD during the first few months after the accident (see paragraph 33 above).  Psychotherapy for “the adverse psychological reactions to be conducted by a clinical psychologist in private practice” was recommended (paragraph 54 of his report).

93. Instead of going for psychotherapy – as Dr. Wong has recommended – Miss Lo, instead, received treatment from Dr. Lai in September 2006.

94. In fact, before starting receiving treatments from Dr. Lai, Miss Lo was previously seen by him for about 2½ hours on 9 December 2005.  Miss Lo’s psychological problems are also documented in great length in Dr. Lai’s report dated 10 January 2006.

95. In the report, Dr. Lai recorded a number of Miss Lo’s unhappy events.  They include unwillingness to have sex with her husband due to pain during sex, her suspicion of her husband having a relationship with his former girlfriend, and the mother’s recurrence of cancer in September 2004.

96. Dr. Lai opined that Miss Lo, as a result of the accident, suffered two psychiatric conditions – symptoms of a PTSD, and symptoms of an adjustment disorder with depressed symptoms.  He further opined that Miss Lo’s psychiatric conditions were the result of the accident, and of the disabilities arising from the accident.  Dr. Lai also believes that “her physical discomfort during sex, decrease in sex drive, and avoidance of sex developed after the accident have likely contributed to the relationship and sex problem between her and her husband.  This relationship and sex problem between her and her husband can be considered as a social complication as a result of the accident.  This relationship and sex problem, in turn, have contributed to the causation of her adjustment disorder.  The malignancy of her mother may also have contributed to her depressed mood” (see paragraph 46 of the report).

97. This range of emotional disturbances was similarly recounted in Miss Lo’s testimony.  By the time she consulted Dr. Lai, Miss Lo said she already had a lot of psychological problems of depression and insomnia.  She therefore accepted Dr. Lai’s referral by attending one consultation at the MHA because she was confused over her marriage, her career and her future in general.  At that time, Miss Lo said her husband had mentioned about leaving and divorcing her.  She said that when compared to her friends of similar age, she felt  – in terms marriage, career and her future in general– that she had nothing.

98. After having received 18 treatments from Dr. Lai, and one 3 hour counseling session from MHA (and Miss Lo said it had helped her a lot), Miss Lo was examined by her own psychiatric expert, Dr. Chung, on 24 January 2008.

99. After having examined Miss Lo, Dr. Chung confirmed that she has suffered from PTSD caused by the accident.  He further opined that the symptoms were bad immediately after the accident, but improved a few weeks later.  Dr. Chung further took the view that Miss Lo’s mental condition was compounded by the stressors in the past 5 years (see paragraph 24 of his report dated 4 February 2008).

100. Dr. Chung further confirmed that the psychiatric treatmentsMiss Lo had improved her mental condition.  He only recommended psychological treatment for another year (paragraph 27 of his report).

101. Dr. Wong and Dr. Chung each was asked to prepare a report respectively on 31 March 2008 and 2 May 2008 to render comments on the other’s opinion as to whether Miss Lo had or had not suffered from PTSD caused by the accident.  Using the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV), the experts’ opinions are only divergent on whether Miss Lo’s mental conditions she had exhibited in the past 5 years were sufficient for a diagnosis of PTSD.  Dr. Wong confirmed symptoms of PTSD, but did not agree that they satisfied the criteria for PTSD, whilst Dr. Chung made a diagnosis of PTSD.

102. In my view, it is not necessary, for the purpose of this assessment, to decide if Miss Lo’s mental condition should be classified as PTSD or not as the following evidence – according to the discussions above- is largely undisputed:

(i)    Miss Lo has immediately after the accident suffered from severe symptoms of PTSD;

(ii)  The severity of the symptoms was improved with time;

(iii)    Miss Lo was confronted with a number of unhappy events that had severely affected her mental condition, and by 2006 it had become so severe that she required psychological/psychiatric treatments;

(iv)    The treatments she received from Dr. Lai and MHA were appropriate, and had improved her mental condition;

(v)  By 2008, her mental condition had significantly improved and become stabilized, and only required treatments for about 1 year as from the beginning of 2008, and

(vi)    Miss Lo received psychiatric treatment up till August 2008, and presently she only requires sleeping pills for her sleeping problem occasionally.

103. In light of the above undisputed evidence, the issue I should decide is rather the extent of the impact of these unhappy events on Miss Lo’s mental condition, and consequently that the proportion of each of these events had played in causing Miss Lo’s mental condition.  I will start with an examination of her personal circumstances before and after the accident.

104. When Miss Lo met the accident in January 2003, she was a “bride-to-be” because she was due to wed her fiancé in Australia in April.  Her situation however was complicated by the requirement stipulated in the sponsorship visa, that Miss Lo had to enter Australia for the purpose of marriage by a specified deadline.  The visa condition, to a certain extent, had aggravated Miss Lo’s suffering because she had to fly to Australia to get married even though she was still on crutches.

105. Marriage brings changes and adjustment to most of the newly married couples with new expectations and responsibilities.  Miss Lo similarly was required to adjust to a life of being a married woman.  In her case, his husband had wanted her to stay in her new matrimonial home (which is in Australia), to fulfill the conjugal role and to a start a family.  I believe the injury had most probably – for the reasons stated above – made it much more difficult for Miss Lo to adjust to the role as a wife.

106. Shortly after the marriage, Miss Lo had to divide her time between Hong Kong and Australia because of her injury.

107. Further, the injury had left residual pain that inflicted on Miss Lo when having sex with her husband, which pain had subsequently caused Miss Lo to avoid sex.

108. Mr. Chan took issue with the alleged reason given by Miss Lo for avoiding sex with her husband on the ground that Dr. Lam had opined that the pelvic fracture would not have affected Miss Lo’s capacity to have sex.  Mr. Chan therefore submitted that it was only a convenient excuse.  It was further contended that Miss Lo’s refusal to have sex was due to a shaky foundation on which the marriage was built as Miss Lo’s marriage took place after a very brief courtship.

109. Mr. Chan’s contention about the lack of a solid relationship before Miss Lo’s marriage, in my view, is only speculation, and I am not inclined to accept it.  Further, the opinions of the experts as to whether the injury would have affected Miss Lo’s capacity to engage in sex, in my view, are also largely irrelevant.  The sexual discord – according to Miss Lo – was not due to her lack of capacity, but rather to the pain she had felt at the wound.

110. Pain, in a lot of cases, can bepurely subjective.  In this case, I do not think Miss Lo’s pain is only subjective asthere is medical evidence that Miss Lo had been suffering from residual pain for several years after the first operation.  I am unable to say that the physical and mental conditions have not led to Miss Lo shunning from having sex with her ex-husband.  I find that it is quite probable that Miss Lo genuinely had pain when having sex with her husband, which has led to her avoidance of sex.

111. The reason underlying Miss Lo’s reservation in starting a family after the accident – I believe – must have likely also stemmed from her anxiety caused by the injury. Similar to the sex issue Miss Lo had with her ex-husband, I do not think the problem can be said as either medical or physical incapability.  Again, I cannot say that Miss Lo’s reservations, in light of the circumstances, are unreasonable, and that they are not unconnected with the injury.

112. The above problems confronting Miss Lo would have more likely than not caused strain on an any marital relationship, and would have been moreso on the newly wed couple.  Sadly, the marriage was relatively short-lived as it was ended in June 2007.

113. Marital problems take many different shapes and forms.  I think the fact that the accident took place very shortly before Miss Lo’s marriage together with her personal circumstances (such as her husband was an Australian resident) would have likely had a role to play in causing the difficulties in Miss Lo’s marriage, and finally contributing to its breakdown.

114. The marriage problem undoubtedly was the major unhappy event in the past few years.  Other unhappy incidents as those mentioned by Dr. Wong were of mixed nature – some related and some unrelated to the accident.  I am inclined to agree with Dr. Wong that her mother’s cancer relapse was unrelated to the accident.  However, events such as her pessimistic outlook of her career, and the difficulty with the brother’s girlfriend, in my view, seem to have somehow also stemmed from the injury, and they had all jointly impacted adversely on Miss Lo’s mental condition.  Thus, they cannot be separately apportioned. It would be wholly artificial to categorize them as, say, “mental-problem causing” or “non-mental -problem causing” effects.  Had there been no accident – I find on the evidence that – Miss Lowould be less likely being saddled with the problems arising from the accident.

115. After having considered all the evidence very carefully, I am more inclined to find that Miss Lo’s psychiatric symptoms were caused by or contributed to by the accident.

116. With the above findings (which are largely undisputed), I do not find that it is necessary for me to determine whether there is a full scale PTSD as there is overwhelming evidence that Miss Lo has suffered both psychiatric and psychological conditions, which required treatment.

117. I find that Miss Lo’s psychiatric/mental conditions are largely caused by the accident, and that other personal circumstances such as her mother’s cancer relapse, her relationship with her brother’s girl friend were not of course conducive to her recovery, but these are not sufficient to justify an apportionment of causation as Dr. Wong has opined.

118. Dr. Wong’s apportionment approach by isolating the individual events is, in my view, largely artificial.  From the above discussion, I am unable to find any basis, whether medical or otherwise to justify this broad-brush apportionment of causation of Miss Lo’s psychiatric condition.

119.  I therefore findthat the 2 years’ psychiatric treatments she had received from Dr. Lai up till August 2008 and the consultation at the MHA are all borne out by the psychiatric opinions of Drs. Lai, Chung and Wong.  Miss Lo should be allowed the reasonable costs in respect of these treatments.

(vi)  Cosmetic treatment

120. The first surgery done in the Hospital has left Miss Lo an unsightly scar at the posterior pelvis area.  She was distressed about the scar. After the second removal surgery by Dr. Fang, Miss Lo said she was disappointed that the original scar was thickened and had become wider.  The buttock area had also become slightly dented.  She was unhappy about the scar, and Dr. Fang referred her to consult a plastic surgeon in September 2006.

121. Miss Lo went to consult Dr. Lam Lai Kan on 14 September 2006, a plastic surgeon, who opined that the scar could be removed by surgery.

122. Miss Lo up to the date of the trial still has not undergone the plastic surgery.  She said at the hearing that she was thinking about doing it.  When I asked Miss Lo whether she would be undergoing the plastic surgery, she told me that she needed to be prepared for the surgery psychologically because of her anxiety of hospitalization.  She said she would require some one close to her such as her younger sister to accompany her during the operation.  She further said that she also needed money for the operation.

123. The Defendant resists Miss Lo’s claim for the cost of the future operation as a separate award.  In disputing the necessity for the operation, Mr. Chan referred to the views of the orthopaedic experts stated in the Joint Report (at paragraph 62), in which the experts opined that plastic surgery would not be necessary for the reason thatMiss Lo’s surgical scar could have been concealed by clothing.

124. A plaintiff, when claiming for the cost of a future operation as a separate award, will be required to adduce sufficient medical evidence to satisfy the criteria laid down by Master Patrick Chan (as he then was) in Lam Kwong Ting v Ho Yau Yuen [1990] 2 HKC381 at 385A-C.

125. The criteria laid down in Lam Kwong Tin are:

(i)    the burden is on a plaintiff to satisfy the court that the future operation to be carried out is done on medical advice, and that it is necessary or reasonably required for the purpose of recovery or improvement of the injuries sustained or the relief of persistent pain and suffering;

(ii)   the operation is anticipated or likely to take place in the near or reasonably foreseeable future;

(iii)  the expenses to be incurred must be reasonable.

126. From the photos taken in January 2007 of Miss Lo’s scar, I am able to see a clearly visible scar at Miss Lo’s surgical wound.  According to Dr. Lam’s letter dated 23 December 2008 (which documents the findings of the examination in 2006), Miss Lo was found to have “ a buttock scar of 14.5 cm, which showed signs of widening, thickening and obvious stitch marks.  There was presence of soft tissue depression in the scar region as well.”

127. On the evidence, does Miss Lo satisfy the first criterion laid down in Lam Kwong Tin?  In this case, I need to consider whether the plastic surgery will improve the appearance of the scar, and achieve the intended result, that is, whether the operation would likely eliminate the scar or substantially improve the appearance of the surgical wound?

128. In the letter dated 28 November 2008, Dr. Lam states that after the plastic surgery, the scar “will be less widened, less thickened and the existing obvious stick marks will be removed as much as possible.  The depressed area will appear less depressed.  Total elimination of the scar is impossible.”

129. The two letters above show that when Dr. Lam examined the scar in September 2006, he had already found signs of thickening and widening.  However, since the examination in 2006, Miss Lo has not yet gone ahead with the surgery.  Given the time lapse of about 2 ½ years since Dr. Lam’s examination in 2006, the scar would have likely become – according to the findings of Dr. Lam – thickened and widened.

130. In the circumstances, should Miss Lo go ahead with the operation in the near future, would it be able to achieve the result as Dr. Lam had opined?  In September 2006 when the scar was examined, Dr. Lam already opined that the operation would only improve the appearance, but it would not be able to eliminate it entirely.  Miss Lo has adduced no evidence to confirm if the condition of the scar has deteriorated after a lapse of more than two years, and further that whether the outcome of the operation would likely be adversely affected if the scar has deteriorated.  According to the opinion of Dr. Lam, I think it is likely that Miss Lo’s scar has been deteriorating, and that the result of the future operation will not be as satisfactory as a result of an operation carried out, say shortly after the examination in 2006, would have been.

131. In the circumstances, I find that Miss Lo has failed to adduce sufficient evidence to satisfy the first criterion laid down in Lam Kwong Tin.

132. I further find that Miss Lo has also not fulfilled the second criterion.  On her evidence, I am far from convinced that the cosmetic operation will be likely.

133. Miss Lo was truly unhappy and disappointed with the worsened appearance after the second surgery to remove the metal plates, and I find that it is reasonable for her to seek the advice of the plastic surgeon.  However, I am unable to see any genuine desire on the part of Miss Lo to receive the operation.  After two and half years since the second operation, and the advice having been sought from the plastic surgeon, Miss Lo still appeared to be non-committal and hesitant as to whether she would be receiving a plastic surgery.

134. According to Dr. Lam, the plastic surgery will require hospitalization of about 10 days, which is substantially longer than her second operation by Dr. Fang.  This suggests that it is not a simple, straightforward operation.  I believe the real reason that Miss Lo has not gone ahead with the operation – in spite of her dissatisfaction with the scar – was probably due to her anxiety of the actual operation rather than to the alleged financial reason. 

135. The other reason that Miss Lo needed to be psychologically prepared for the operation, in my opinion, sounds hollow. A period of two and half years is reasonably sufficient for Miss Lo to prepare for the operation had she been serious about it.  At the trial, Miss Lo, however, has not told me any concrete evidence as to what preparation she needed to make.  I am therefore not satisfied that Miss Lo has any real motivation to go for the operation in the future.

136. I am therefore disinclined to allow Miss Lo to claim the future cost of the cosmetic operation as a separate item of damages, although I will take into account the cosmetic effect of the scar when assessing her claim for PSLA.

(vii)  Miss Lo’s level of pre-accident earnings

137. At the time of the accident, Miss Lo was employed as a sales and financial executive, and was allegedly paid $16,250 per month inclusive of year-end bonus.

138. The income allegedly from Winnie Shop was strenuously disputed by Mr. Chan, who argued that the letter (dated 11 January 2006 at p.499) by Winnie Shop - being substantially a family business, hence, not a neutral party – could not be relied on to corroborate Miss Lo’s income.  Mr. Chan therefore contended that Miss Lo’s pre-accident earnings should best be calculated by using her average earnings of the 2 years before the accident – which, according to Mr. Chan’s calculation, was in the sum of $8,300 per month.

139. Upon finishing her undergraduate studies in Queensland, Miss Lo, aged 24 at the time, started full time employment in Hong Kong in February 1997.  For a period of about 6 years before the accident in January 2003, Miss Lo had engaged in not less than 6 jobs, with each one only lasted for a several months though the longest one seems to have lasted for about 22 months when she worked as an assistant accountant in a company called Holligold from May 1998 to February 2000.

140. I must say that Miss Lo’s employment history before the accident appears to be rather unstable – which pattern is probably not uncommon for educated and mobile young women such as Miss Lo.  The frequent changes of job – according to my understanding of her evidence – were largely due to a desire on Miss Lo’s part in trying out different types of work before deciding on her career path.

141. The said inclination can be seen from Miss Lo’s employment pattern.  Her first few jobs after completing the University was in the accounting field, an area closer to her studies.  After attempting 3 accounting-related jobs in the first three years of her graduation, Miss Lo then dabbled on investment field, and worked as an investment consultant for 3 months from April 2000 to July 2000.

142. Miss Lo then took off to Fiji after quitting the investment consultant job, and came back to Hong Kong via Australia in January 2001, during which trip she started dating her University friend who later became her husband.

143. Miss Lo’s employment after she returned from Fiji in January 2001 is confusing, and largely unsatisfactory.  Not least most of the earnings are unsubstantiated, Miss Lo was also unable to clearly say when and for how long she worked in each of the jobs after she started dating her ex-husband.

144. First, Miss Lo mentioned of partnering with her Fijian ex-classmates in exporting garments from Hong Kong to Fiji, for which job she said she was paid about $10,000 to $13,000 per month. 

145. Apart from the Fiji undertaking, Miss Lo also said that before she went to Fiji, she was also offered a part-time job by Big One in tidying up its accounts, and was paid about $10,000 to $15,000 per month.

146. Miss Lo said that around this time, she was in fact doing 2 to 3 jobs at the same time.  Apart from the Fiji undertaking, and the part-time work with Big One, she was also working for SS as a sales executive selling travel packages, and was allegedly paid $7,000 per month, plus commission.

147. As to when and for how long Miss Lo worked for SS, her evidence is equally confusing.  In her witness statement, she said she worked for SS between August 2002 and December 2002, a period of 4 months.  Her counsel, Miss Lau, informed the court that there was an error in the witness statement, and that Miss Lo was in fact working for SS from August 2001 instead of August 2002.

148. However, in her oral testimony, Miss Lo again said that she worked for SS for 4 months from August 2001 to December 2001.  She quitted SS before Christmas, and was sure that she had not worked for SS in 2002.

149. Miss Lo’s said work pattern, in my view, is inconsistent with a person with commitment to one’s career, but bears all the hallmark of a carefree young woman.  There is no suggestion whatsoever that the frequent change of jobs is for any reason other than by choice. 

150. I think in this case, Miss Lo’s marriage has played a vital part in Miss Lo’s choice of jobs before her marriage because Miss Lo would be required to leave Hong Kong, and to settle in Australia after the marriage.   Hence, the pattern of Miss Lo jobs can be analyzed with reference to the period before and after the marriage plan.  Before Miss Lo started making preparation to get married in Australia (which would have been likely before 2002), the pattern of Miss Lo’s employment can be described as one of exploration, which is characterized by jobs in different fields.

151. However, by the time when Miss Lo started making preparation for the marriage in Australia – which I believe would have been around the beginning to the middle of 2002 as she lodged the visa application in June 2002 to enter Australia for getting married – her priority would have likely shifted to focusing on making preparation for starting a new life in Australia. Her job requirement would have taken a totally different dimension.  By that stage, a job that enabled Miss Lo to quit in short notice – or better still, at any time - would have suited her most in the circumstances.

152. According to Miss Lo’s oral evidence, after she was informed on 8 November 2002 that her visa application was approved, she was already making preparation to get married – though she had not quite set upon whether she would settle in Australia permanently or not.  Hence, by 2002, I believe that it is unlikely that Miss Lo would still her have heart in the job that she was doing (which would be the job with SS).  I postulate that it might have been for this reason that Miss Lo quitted SS, which probably did not provide the kind of flexibility Miss Lo needed at the time.

153. Given the impending marriage, I believe that as from the time when Miss Lo’s visa application was granted, her priority was not in getting a stable job in Hong Kong.  Working in a family business would have best suited Miss Lo’s circumstances, as it would give her the greatest flexibility.

154. Hence, given the family nature of the business, and the circumstances I find Miss Lo had come to work for Winnie Shop, I do not consider that the alleged income from Winnie Shop is able to properly, and fairly reflect Miss Lo’s pre-accident income.

155. In any event, I would be inclined to reject the alleged income from Winnie Shop because there is no corroborative evidence from any independent source.  Apart from the three letters by Winnie Shop, Miss Lo has been unable to produce more direct evidence such as tax returns or statements of MPF contributions to corroborate the earnings.

156. Hence, I reject Miss Lo’s claim that her pre-accident’s was in the sum of $16,250.

157. The alleged income from Big One and the Fiji importing venture, in my view, can neither be used as a basis for assessing Miss Lo’s pre-accident earnings, as the evidence in respect of the income from these jobs was far from satisfactory.  For the same reason I have given above in respect of the alleged earnings from Winnie Shop, I am unable to find any documentary evidence such as MPF contributions or employers’ tax returns to substantiate Miss Lo’s alleged earnings from these jobs.

158. Furthermore, I am also unable to accept Miss Lo’s assertions that she received earnings from the Fiji venture as well as from Big One at the same time when she worked for SS because there was just no evidence to corroborate the assertions.

159. Of all the pre-accident employments, I find the earnings that have more reliable evidence are the income from Holligold as an assistant account from 1 May 1998 to 28 February 2000, Tanrich Futures as an investment consultant as well as SS as a sales executive.

160. So far as the income from Holligold is concerned, Miss Lo produced two different kinds of documents in support – a letter issued by Holligold dated 6 December 2008 (p.505.185), and two tax returns (p.356 & p.358) covering this period of employment with Holligold. According to the letter, Miss Lo’s total earnings for the total period of the 22 months were stated to be in the total sum of $359,927.50.  Hence, her average monthly income should be $16,360.  The tax returns, however, show that Miss Lo’s total earnings were in the sum of $374,927.  The average monthly income is calculated to be at 17,042.

161. The above figures respectively shown in the employer’s letter and the tax returns are slightly discrepant.  In my view the figures contained in the tax returns should be preferred to those in the employer’s letter as the tax returns were required by the Inland Revenue, but the letter was merely issued pursuant to the request by Miss Lo’s solicitors.  Hence, I find that Miss Lo’s income with Holligold should be in the sum of $17,042 per month.

162. The income from Tanrich is well supported by a tax return.  However, for the reasons stated in paragraph 173 below, I am not inclined to include the income from Tanrich for the purpose of determining Miss Lo’s pre-accident income.

163. The evidence concerning the employment with SS is not as straight forward in terms of both the period of employment and the amount Miss Lo earned.  As for the period of employment, I think Miss Lo has made a mistake because of the reason below. 

164. According to a letter from AXA, the MPF managing company, to Miss Lo’s solicitors in December 2008, it is stated that Miss Lo was employed by SS from 8 September 2001 to 31 August 2002.  This letter was obtained by Miss Lo’s solicitor for the purpose of the litigation, and further that there is no suggestion that its content is incorrect, I therefore find that Miss Lo worked for this company during this period.

165. Miss Lo’s evidence regarding her earnings from SS is, if not more, equally confusing.  Miss Lo claimed in her witness statement that she was paid $7,000 per month, plus commission.  Whilst the commissions are reasonably supported by the two tax returns (filed by SS respectively on 15 May 2003 for the accounting period of 1 April 2002 to 31 March 2003; and 30 April 2003 for the period of 1 April 2003 to 31 March 2004) – which show earnings being described as “commission’” in the sums of $11,228 and $2,786 respectively (with the total amount of $14,014) – I am however unable to find in the tax returns any items of income in the form of salary.

166. Under cross-examination, Miss Lo said that she was not paid any salary in the beginning, but only earned commissions.  She also vaguely alluded to some salaries she had received but not recorded in the company’s tax return.  Miss Lo also explained that the reason why the tax returns show payments after she left SS because commissions would only be paid after the traveling packages she sold were fully paid up.  Therefore, when clients paid for the packages she had sold, she would still be paid commission when she was no longer working for SS.

167. The accounting periods of the tax returns tend to corroborate with what Miss Lo said about how she was paid commissions after she had left the employment with SS.  I find however that Miss Lo cannot rely on the tax returns to support her assertions regarding salaries she alleged received from SS.

168. Apart from the tax returns, the MPF statements from AXA (p.505.186) tend to also shed some light on Miss Lo’s earnings during her period of employment with SS, and corroborate with Miss Lo’s evidence regarding commissions.  In the months of September, October, November, December 2001 and August 2002 (with the corresponding settlement dates for the first four payments in March 2002, and the last one being December 2002), the total MPF contributions – according to the statement from AXA- are shown to be in the sum of $1,176.82.  Hence, the total income would have been $23,536.40 ($1,176.82 ¸ 5 x100).  As the statement covers MPF for 5 months, I think the amount should be divided by 5, and it is therefore $4,707.30.  Apart from the letter, there is another MPF statement (at p.505.188) showing Miss Lo’s income from SS for the months of September, October, November 2002; and January and August 2003, which was in the total sum of $12,096.  As it covers earnings for a period of 5 months, the monthly income is therefore $2,419.20 ($12,096 ¸ 5).  The median is $3,563 [($4,707.30 + $2,419.20) ¸2].

169. The MPF contributions and the tax returns referred to above have, to a certain extent, thrown some light on Miss Lo’s earnings, I do not however find the evidence entirely satisfactory.  For example, I am unable to find any evidence accounting for the reason why the statements only recorded 10 months’ earnings instead of the entire period of employment with SS for about 11½ months (from 8 September 2001 to 31 August 2002 as stated in the letter from AXA).

170. As a result of the unsatisfactory evidence, I do not think I can accept Miss Lo’s assertions that she was paid any salary from SS.  I conclude on the evidence that it is more likely than not that she was only paid commission, which are the only source of her income when during the period of employment with SS.

171. The confusing state of the evidence concerning SS does not end here.  The earnings as shown from the MPF contributions do not tally with the earnings shown in the tax returns.  However, as the accounting periods evidenced by the tax returns do not show the income for the period of 2001, I am in doubt as to whether the tax returns in fact show the entire period of the employment with SS. On the other hand, the MPF documents- though are also not totally consistent with the period of employment – by comparison, however, seem to have covered the earnings for the substantial part of the employment. In the circumstances, I tend to prefer the earnings as shown in the MPF documents, and find that Miss Lo’s monthly income from SS, which I find to be in the form of commission only, is in the sum of about $3,563.

172. As I have in the above already declined to rely on Miss Lo’s income allegedly from Big One and the Fiji venture for determining her pre-accident’s earnings, Mr. Chan’s approach by using Miss Lo’s earnings of the two years before the accident will unlikely accurately reflect Miss Lo’s pre-accident earnings, and I decline to adopt his approach.  On balance, I am more inclined to think that earnings that can be corroborated by employer’s tax returns or MPF documents should be able to more accurately reflect Miss Lo’s pre-accident income than those not supported with such kind of evidence.  Hence, as such kind of evidence can only be found from Miss Lo’s employments with Holligold, Tanrich and SS, income from these three employments should be preferred.

173. The income from both Holligold and SS (as discussed above) is reasonably supported by documents.  These two jobs, when compared to most of the jobs Miss Lo had done, also lasted the longest. Besides, they are primarily in the kinds of jobs (accounting and marketing executive) Miss Lo had mostly done before the accident.  I therefore think that the income from Holligold and SS should be more suitable to be adopted for assessing Miss Lo’s pre-accident earnings.  On the other hand, the income from Tanrich - in spite of the documentary income proof - when compared to Holligold and SS, is not as suitable because it, similar to a few of Miss Lo’s other jobs – only lasted for a very short time of about 3 months.  Further, the job nature with Tanrich (investment, that is) is also not in the usual field of Miss Lo’s pre-accident employment.

174. Hence, the medial earnings from Holligold and SS will yield an amount of $10,303 [($17,042 + $3,563) ¸ 2)].  For the purpose of calculating the pre-accident earnings, I will round it off to $10,000.

175. I am conscious of the fact that the sum of $10,000 I arrived at does not appear to be based on Miss Lo’s income immediately before the accident.  However, given the unsatisfactory evidence regarding Miss Lo’s pre-accident earnings, I can only do my best in arriving at a figure I believe to be fair and reasonable.  After having reflected upon the evidence on matters such as Miss Lo’s education background, the earnings from the various jobs she had done, I think – had Miss Lo been more committed to her career, and placed more priority in finding a more permanent job before the accident – the amount of $15,000 per month would not have been unachievable.  However, her personal situation at the time of the accident (according to my findings above) shows that she had chosen to work in a family business to suit her personal circumstance instead of focusing on developing her career in Hong Kong. Hence, the sum of $10,000 – which represents 2/3 of $15,000 – should more or less reflect Miss Lo’s level of earnings before the accident.  Hence, it is my considered view that the amount of $10,000 I have calculated is actually reinforced by Miss Lo’s personal circumstances before the accident.

VI.  HEADS OF AWARDS

(A)  PSLA

176. Miss Lau submits that Miss Lo’s injuries should be placed at the lower end of the serious injury category, and asks for a global award of $600,000 under this head.  Miss Lau relies on these authorities: Thelma G. Chavez v Fong Ka Yiu, Frank (unrep.) HCPI 570 & 666 of 1999, Tsui Nga Yee v Chan Ying Yin (unrep.) HCPI 1100 of 2005, and Suen Kum Fung Kandy v Tsang Cham Kuen & Anor. [2009] 1 HKC 195 (CA).

177. In submitting for a global award of $600,000, Miss Lau has urged me to take into account not only the physical and psychiatric injuries caused to Miss Lo by the accident, but I should also consider how it has also contributed to the breakdown of her marriage.

178. In resisting the amount Miss Lau submitted, Mr. Chan contended that I should, when assessing the appropriate award for damages under this head, regard this case as a normal case of broken pelvic, which is usually fixed by open reduction and insertion with screws.  In his closing submission, Mr. Chan further contended that I should not be swayed by Miss Lo’s improper attitude of “blam(ing) it all on the accident” into granting an enhanced award.  Based on the four decisions on broken hip – Ku Chiu Chung Woody v Tang Tin Sung (unrep.) HCPI 288 of 2001, Wang Yuk Kin v Hui Chun Wah (unrep.) HCPI 592 of 2003, Siu Wai Yee v Lau Sin Hang (unrep.) HCPI 700 of 2004 and Harvey Kenneth v Welltex International Development Ltd. (unrep.) HCPI 818 of 1998 – Mr. Chan submitted that the appropriate award of $420,000 stated in the Answer to the Revised Statement of Damages would have been over-generous, and that a sum of $400,000 would be more appropriate.

179. In considering what should be the appropriate amount to be awarded to Miss Lo under this head, I agree with Miss Lau’s submission that Miss Lo’s hitherto life has been turned upside down as a result of the accident.  Miss Lo’s life was particularly affected by the fact that the accident happened shortly before she was about to get married to a man living in Australia.  I believe that had she not met the accident, and not been required to deal with her physical, and  psychiatric injuries caused by the accident, Miss Lo would have found it much easier to adjust to her new role as a wife, and the new life as a married woman in Australia.

180. I have found in the above that the accident had adversely affected Miss Lo’s attitude to sex with her newly-wed husband, and caused complication in the marital relationship as a result of the sex problem and Miss Lo’s hesitation to have children after the accident.  I am satisfied that the accident, was at least a factor that has, directly or indirectly, led to or hastened the breakdown of marriage.  According to the Court of Appeal decision in Suen Kum Fung Kandy (ibid.), I should  pay regard to this factor when assessing the quantum.

181. After having considered the authorities submitted by both counsel, I am inclined to think with Mr. Chan that Miss Lo’s orthopaedic injuries are indeed no more than a normal hip fracture.  Unfortunately however, in additional to the orthaepedic injuries, the accident has also brought about psychiatric injuries, which required treatment for about 3 years.  Above all, the orthopaedic and psychiatric injuries, to a certain extent, have adversely impacted (as I have found above) on Miss Lo’s marital relationship and have contributed to the breakdown of her marriage.

182. In addition to the residual disabilities inflicted upon Miss Lo by the accident, I should also have regard to the cosmetic damage caused by the long and visible scar at the posterior hip area.  In spite of the joint view of the orthopaedic experts that the scar could be completely concealed by clothing, I think it is only half true.  I can clearly see from the photographs Miss Lo produced that the scar was exposed when Miss Lo was wearing swimsuit, or when she was in a pair of low-waist jeans (and I believe this style of clothing is not uncommon).  I thus find that she has indeed suffered cosmetically, though the extent is not as serious as the plaintiffs (who both suffered multiple scars) in the cases of Thelma Ghavez or Siu Wai Yee .

183. Having regard to all the matters above, and considered the authorities counsel submitted, I agree with Miss Lau that a global award is appropriate.  I accept that $600,000 is a fair amount, and I shall so award.

(B)  PRE-TRIAL LOSS OF EARNINGS

(i)  Total Loss

184. A total of 216 days of sick leave is agreed.  Of the 216 days, 183 days for the period from 11 January 2003 to 12 July 2003 were granted in respect of orthopaedic and psychiatric injuries.  Of the remaining 33 days, 8 days of sick leave were granted intermittently from 18 July 2003 till 18 December 2008, and 25 days were in respect of the second operation in June 2006, with the last day ending on 16 July 2006.

185. Miss Lo resumed working part-time for Winnie Shop from mid-December 2004, and thus claims a total loss of earnings for the entire period from the date of accident till December 2004.

186. The Defendant disputes Miss Lo’s claim for total loss of earnings after the expiry of sick leave in about July 2003.  Mr. Chan further submitted that the main reason that Miss Lo had not worked after her sick leave had expired not because of her lack of working capacity; but it was due to her frequent travels to Australia.

187. As for Mr. Chan’s contention on the interruption of employment by Miss Lo’s travels, I will discuss in the judgment below.  So far as the contention regarding Miss Lo’s working capacity is concerned, I think Mr. Chan is not entirely wrong.  Apart from the opinions of the orthopaedic and the psychiatric experts that the residual disabilities would not have affected Miss Lo’s working capacity, there is further evidence that Miss Lo, after the consultation with Dr. Fang in October 2003, did not need to seek any further orthopaedic treatment in Hong Kong until February 2005 (when she consulted Dr. Fang again).  Further, she only started receiving psychiatric treatment from Dr. Lai until September 2006.

188. On the evidence, therefore, I find that Miss Lo should have been able to return to the job market much earlier than December 2004 despite the residual disabilities (which I have found she had suffered) and the continuing medical treatments up till August 2008 (which treatments I have also found to be reasonable).  Having said that however, I find on the evidence that Miss Lo’s residual pain had likely been more severe in the beginning.  Hence, I think it would be appropriate to allow a reasonable period of say 5 to 6 months to Miss Lo to nurse the pain, and regain physical strength to enable her to obtain employment after the continuous sick leave period expired in July 2003.  Miss Lo should therefore be awarded total loss of earnings up till the end of December 2003, and I will use the date of 31December for ease of calculation.

189. Hence, Miss Lo’s full loss from 11 January 2003 to 31 December 2003 should be:

   $10,000 x 11 months and 20 days = $116,666.70.

(ii)  Loss of earnings from January to November 2004

190. From the discussions in (i) above, I think Miss Lo should have been able to return to Winnie Shop working part-time by January 2004 and could have already earned $5,750 per month instead of waiting until December 2004.  

191. In this regard, Mr. Chan’s contention that Miss Lo was prevented by her overseas travels in seeking employment is not entirely without merit.  According to Miss Lo’s travel records, after the expiry of sick leave in July 2003, Miss Lo made further three trips there, and was away from Hong Kong for a total of 141 days between December 2003 and August 2004 with the last trip ending on 27 August 2004. 

192. These trips were clearly for personal reasons, and the Defendant should not be made to pay for any loss of earnings resulting from Miss Lo’s absence from Hong Kong.  I find that had she resumed working part-time at Winnie Shop in January 2004, she would have earned – according to the evidence – a monthly sum of $5,750.

193. Hence, the partial loss of earnings from January 2004 till November 2004 should be:

   ($10,000- $5,750) x 11 months = $46,750.

(iii)  Partial Loss of earnings from December 2004 till trial

194. From December 2004 until the conclusion of the hearing on 24 March 2009, her totally earnings are agreed at $311,856.

195. During this period, Miss Lo underwent the second operation for the removal operation in June 2006, and was granted 25 days of sick leave in June and July 2006.  As the sick leave overlaps the period under discussion, there should not be a separate award for the sick leave.

196. Thus, her partial loss of earnings from December 2004 until March 2009 would be:

   ($10,000 x 52 months) - $311,856 = $208,144.

(iv)  Total amount of pre-trial loss of earnings

197. The total amount of the pre-trial loss of earnings is therefore:

 $371,560.70 ($116,666.70 + $46,750 + $208,144).

(C)  LOSS OF PRE-TRIAL MPF

198. The pre-trial loss of MPF is therefore in the sum of $18,578 ($371,560.70 x 5%).

(D)  PRE-TRIAL MEDICAL EXPENSES

199. The amount of $4,309 for the treatments in the Hospital and in Australia is agreed.

200. As to the disputed treatments, I find that – based on my ruling above – Miss Lo should be able to recover private treatments from Dr. Fang, and Dr. Lai (including the consultation from MHA) as well as from the physiotherapist.  After having considered the treatments, I am of the view that the expenses were all reasonably incurred, including the amount in respect of the second operation for the removal of the metal plates.

201. The total expenses are: 

(a)	Post-1st surgery consultation with Dr. Fang	$4,190
(b)	The removal operation	$64,960
(c)	Post-2nd surgery consultations with Dr. Fang	$4,450
(d)	Consultation with Dr. Lam (plastic surgeon)	$600
(e)	Consultation with MHA	$800
(f)	Consultations with Dr. Benjamin Lai from	$39,120
	25 September 2006 to 14 August 2008 for 27 times
(g)	Consultation with Dr. Fang and physiotherapist	$9,030

202. The total amount from items (a) to (g) is $123,150, which together with the agreed amount of  $4,309, will give Miss Lo an award of $127,459 under this head of damages.

(E)  FUTURE MEDICAL EXPENSES

203. Miss Lo claims future costs for the removal of the scar, and for psychiatric treatment.

204. So far as the costs of the cosmetic surgery are concerned, and in light of my conclusion in paragraph 136 above, I decline to award separate damages to Miss Lo.

205. The future costs of the psychiatric treatment have been merged with the pre-trial expenses, which I have fully allowed.  Hence, no further award is to be granted.

(F)  FUTURE LOSS OF EARNINGS

206. It is claimed that Miss Lo would be suffering from loss of earnings for a post-trial period of five years with a multiplicand to be calculated with reference to an amount based on the difference between the present monthly earnings of $7,900 and the income of a fully qualified accountant of $21,370.

207. Miss Lo has not qualified as a certified public accountant.  She had only joined as an associate member of the CPA Australia in March 2001, and taken one examination in the same year.  Her membership has been renewed twice previously, but its present status is called “de-active”. 

208. Miss Lo said she could re-enroll again at any time to become a member.

209. Mr. Chan contended that Miss Lo’s claim on the basis of an assumption that she would have, but for the accident, qualified as an account is baseless.

200. Miss Lo was not required to do anything further to enroll as an associate member as she was already a holder of an undergraduate degree conferred by a recognized university in Australia.  According to the date of her enrolment, it would have appeared that Miss Lo only enrolled as an associate member 2 months after she had met her husband in Australia in January 2001.

201. Miss Lo finished his studies in 1997, and should have been able to enroll as soon as she obtained her undergraduate degree from Australia.  However, she had waited for more than 4 years, and only did so after she met her former husband seems to me that she only started to consider this professional advancement, with possibly an intention of pursuing her professional career not in Hong Kong but in Australia.

212. In addition, I was told that since the enrolment in 2001, the qualifying requirements have also been changed.  However at the time when Miss Lo enrolled in March 2001, Miss Lo would have been required to pass a total of 5 examinations, and possess 3 to 5 years working experience in the relevant field in order to be qualified as a CPA.

213. However the steps Miss Lo have taken towards satisfying the qualifying requirements were far from impressive.  So far, she has only taken one examination in the same year when she joined as an associate member.  Apart from that, Miss Lo has not taken any more examinations, let alone holding down a relevant job in the accounting field.  Further, between the date of the accident and the date of enrollment, there were more than two years for Miss Lo to take more examinations had she been serious about obtaining the qualification.  Miss Lo has not mentioned any matters that had prevented her from or working towards obtaining the professional qualification.

214. On the evidence, I am not satisfied that Miss Lo has adduced sufficient evidence demonstrating that before the accident Miss Lo had been actively pursuing such professional goal, and that Miss Lo but for the accident would have likely been qualified as an accountant, and obtained the job as an accountant.

215. Hence, I find that Miss Lo is unable to prove any future loss, and that her claim is too remote.  This head of claim is rejected.

216. For completeness, I would make one further observation.  In this item of claim, Miss Lo has advanced her claim for loss of future earnings on the basis of a loss of salary of a qualified accountant, but not on other basis.  Though Miss Lo (on the face of the earnings as agreed on the date of trial) might have been suffering from some partial loss of earnings, I will not make any findings or award in this respect because I do not consider it appropriate to embark on a matter not having been advanced or canvassed by the parties.

(G)  HANDICAP ON LABOUR MARKET

217. Miss Lo claims $100,000 under this head on the basis that her residual impairment would limit her to seek part-time employment only.

218. This award is only granted to a plaintiff who can prove that there is a “substantial” or “real” risk of losing his employment caused by the residual disabilities.  In the present case, I am unable to find that Miss Lo has succeeded in demonstrating there is such a risk.  I am disinclined to allow this claim.

(H)  SPECIAL DAMAGES

219. The sums of $10,000 for nourishing food, $520 for the crutches, and $10,170 for local and overseas traveling expenses are all agreed.  Hence, a total amount of $20,690 is allowed for special damages.

VII.  SUMMARY OF DAMAGES

220. The total amount of damages I award is therefore as follows:

(A)	PSLA	$600,000
(B)	Pre-trial loss of earnings	$371,560.70
(C)	Pre-Trial loss of MPF	$18,578
(D)	Pre-Trial medical expenses	$127,459
(E)	Future medical expenses	Nil
(F)	Future loss of earnings	Nil
(G)	Loss of earning Capacity	Nil
(H)	Special Damages	$20,690
	Total	$1,138,287.70

VII.  CONCLUSION AND ORDER

221. I enter judgment in the sum of  $1,138,287.70 together with interest at 2% on general damages from the date of the writ to the date of judgment, and a half of the judgment rate on pre-trial loss of earnings, pre-trial medical expenses and special damages from the date of accident to the date of judgment.

222. I further grant a cost order nisi in favour of Miss Lo, which costs are to be taxed if not agreed, with the exception that the costs of and occasioned by the following items of work are disallowed.

(i)    the witness statements of Rinaldo Licis, and Lo Chi Hung;

(ii)   comments by the medical experts on the surveillance evidence.

223.    I disallow the costs of the above witness statements because their contents are, in my view, largely irrelevant to the issues in dispute.  As for the comments on the surveillance by the experts, I also decline to allow recovery of these costs because I do not think it appropriate to have medical experts instructed for making comments on the surveillance evidence, which – in my view - should be within the purview of the court, and experts should not usurp a court’s function.

 

 

[1] HCPI 374 of 1998, Master Jones, 9 December 1998.

[2] HCPI 768 of 2003, Master de Souza, 15 September 2005.

[3] HCPI 742 of 2000, Deputy High Court Judge Fung (as he then was), 25 June 2002.