LAI TIM FAI JACKY v. LEE YUK PING

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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Judgment

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1. This is an assessment of damages pursuant to interlocutory judgment entered on 6th July 1994. The proceedings arise from an accident on 25th May 1991, when the plaintiff was employed as an apprentice mechanic and general labourer at a garage business operated by the defendant. The plaintiff sustained severe head injuries from the explosion of refrigerant from the air-conditioning system of a vehicle on which he was working. The defendant was absent at the hearing and failed to enter appearance to defend. Various medical reports and other documents are produced in the bundle of documents under hearsay notice.

2. Following the accident the plaintiff was admitted to the Tuen Mun Hospital where he was examined by the Consultant Surgeon, Dr. Lau Kwok Wai. Dr. Lau's admission report (page 79 of the bundle) shows multiple skull fracture and subdural haematoma. In view of the nature of the injuries the plaintiff was transferred the same day to the neurosurgical unit of the Prince of Wales Hospital for further treatment.

3. On admission to the Prince of Wales Hospital the plaintiff's injuries were found to include skull fractures and severe open brain injuries. He was in a coma for about a week. His treatment was intensive and protracted and included three operations, ventilatory support in the intensive care unit, and anticonvulsant drugs for epilepsy arising from the brain injury. He was treated by Dr. Christopher Poon, Senior Medical Officer in the Department of Surgery, whose report of 1st November 1991 details the full extent of the injuries and their consequences:

4. The plaintiff remained in the Prince of Wales Hospital until 14th June 1991, when he was transferred for rehabilitation to the Cheshire Home in Shatin until 26th June. Thereafter he received specialist treatment from the neurosurgical unit of the Li Ka Shing Specialist Clinic, initially once a month and later once every 3 months, until 10th July 1996. He also received psychiatric treatment at the same clinic on three occasions up to September 1993, attended an eye clinic once every 4 months between July 1991 and October 1992, and received treatment at an ENT clinic. He was advised to discontinue treatment at both the neurosurgical unit and the eye clinic because of a lack of improvement in either case. In 1994 the plaintiff underwent a further operation on his skull to close a gap in the bone with an artificial flap.

5. The plaintiff suffers residual damage to his eyesight, and on 24th February 1993 he was examined by Dr. Paul Cheung, an eye surgeon, whose report of 16th March 1993 appears at page 82 of the bundle. Dr. Cheung found a 5% loss of visual acuity in each eye, but, more seriously, found a marked constriction of the visual fields, more severe in the right eye, due to damage to the visual pathway. Dr. Cheung described the visual pathway as the neural connection from the eyeballs to the visual cortex in the brain, and explained that damage causing constriction of the visual field would be common after such a serious head injury. In simple terms we are considering the loss of peripheral vision. Dr. Cheung concluded by assessing losses of 72% and 70% of visual field for the right and left eyes respectively, and estimated wholeman disability and lossof earning capacity at 72.1%.

6. Dr. Cheung re-assessed the plaintiff at a further examination on 2nd December 1995, the subject of his second report dated 9th January 1996 (page 87). He found the condition of the plaintiff's eyes little changed since his earlier examination and again assessed loss of earning capacity at 72%. Dr. Cheung's final examination of the plaintiff was on 24th January 1997 and resulted in his report of 29th January 1997 (page 213 of the supplemental bundle). He again found that the eyes had remained stable over the intervening year and repeated his assessment of loss of earning capacity at 72%.

7. In order to assess his neurological status the plaintiff underwent two examinations by Dr. Edmund Woo, a consultant neurologist. The first of these was on 18th August 1995 and resulted in Dr. Woo's report of 1st September 1995 (page 89 of the bundle). Dr. Woo found a good recovery, but with residual deficits as to global cognitive impairment, psychomotor retardation, and loss of visual field. On testing he found impairment of orientation, concentration, calculation, memory, general knowledge, and abstract thinking. Dr. Woo also found a continuing risk of post-traumatic epilepsy, with consequent limitation of the plaintiff's working capacity. He commented that suitable work would be confined to jobs where an epileptic seizure would pose minimal danger and where a full visual field was not essential. This ruled out the plaintiff's returning to work as a mechanic and limited him to such occupations as receptionist or messenger. Dr. Woo found that the cognitive and visual deficits elicited on examination would be permanent and assessed a 60% loss of earning capacity.

8. Dr. Woo's second examination of the plaintiff took place on 22nd October 1996 and his report is dated 26th October 1996 (page 202). The doctor noted some improvement in cognitive abilities since his earlier examination, but came to substantialy the same overall conclusion. He noted impairment of calculation, concentration, short-term memory, and abstract thinking, and observed that speech and responses remained slow. He also found continuing psychomotor retardation and visual field restriction, with further improvement in neurological functions unlikely. Dr. Woo also noted the continuing possibility of epileptic seizure despite the lengthy period of remission. He revised the loss of earning capacity to 55%.

9. The final report for consideration is the detailed evaluation by two occupational therapists, Alice Tsang and Chetwyn Chan, which commences at page 118 of the bundle and is 34 pages in length. The examination took place over three occasions in December 1995 and January 1996, and the report is dated 19th January 1996. Various tests were applied to the plaintiff and I note findings of cognitive impairment, poor concentration, poor problem solving, poor judgment, lack of accuracy in visual discrimination, impaired visual field, poor physical and mental stamina, need for supervision, and the possibility of epileptic fit. The plaintiff was found to have a severely limited choice of work, with a loss of earning capacity of 60-70%. All these conclusions are broadly consistent with the reports of the various doctors.

10. Miss Pinto submitted that the plaintiff's injuries and residual disabilities placed him at the top end of the "substantial injury" category of the Lee Ting Lam guidelines and argued for an award for pain, suffering and loss of amenities in the region of $900,000. The guidelines for this category cover -

"-------injuries which require treatment in hospital for many months and leave the victim with a much reduced mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life".

11. The guidelines do of course emphasise mobility in assessing the gravity of the I njuries under consideration. Judging his condition on that criterion alone, the plaintiff's relatively unimpeded mobility and his integrity of limbs may well place him in the lower category of "serious injury" in the guidelines. Similarly, the criterion of "a condition requiring regular treatment for the rest of the victim's life" does not strictly apply to the plaintiff in this case. The plaintiff has severely impaired vision, multiple neurological deficits, and a possibility of epileptic seizure. For none of these is he receiving ongoing treatment (unless they get worse) simply because the conditions are stable and no further improvement is likely.

12. The guidelines are not of course a straitjacket, a factor which has been repeatedly acknowledged by appellate courts. I note in particular the words of Mr. Justice Litton in the Chan Pui Ki appeal (Civil Appeal No. 263 of 1995 at page 8) when he said -

"There are cases, such as the present one, where the injuries are composite: physical, mental and psychological. It is the total effect of the injuries which must be assessed rather than the artificial "category" into which they fit most comfortably".

13. The plaintiff sustained horrific injuries, spent over a month in hospital, had four operations, and endured various forms of specialist treatment for over 5 years until mid-1996. He suffers considerable neurological deficits as described by Dr. Edmund Woo, he has severely impaired vision, and he is at risk of epileptic seizure. In evidence he said he was unable to drive, and could not co-ordinate his movements sufficiently even to play video games. He is unable to pursue activities such as football, snooker, swimming, and other games which he used to enjoy before the accident. He has poor memory, slow response and stutters. His loss of the satisfaction in his trade as a mechanic, and his consequent confinement to occupations of the most menial nature, is of itself a severe diminution of the amenities of life which he would otherwise have enjoyed. Dr. Cheung has assessed the plaintiff's wholeman disability and loss of earning capacity at 72%. Others have assessed loss of earning capacity slightly lower, but have not reached findings on wholeman disability. All estimates are however significantly over 50%. Considering all these factors, I agree that the plaintiff's suffering and residual disabilities place him at the top end of the "substantial injury" category.

14. The range of awards within the "substantial injury" category was confirmed by the Court of Appeal in Chan Pui Ki at $540,000 - $660,000. Miss Pinto seeks an increase of 15% on these figures, representing inflation at 10% per annum since the first instance judgment on 30th October 1995. However, as I read the judgment of Litton VP on appeal he is applying the revised figures from the date of the appeal judgment of 19th July 1996. The learned judge finds the figures to be on the high side and wrong in principle as at the date of the first instance judgment, but adopts them as "not grossly excessive for awards as at the date of this judgment". Moreover inflation, as reflected in the annual cost of living increases for the relevant period, has been running at slightly less than 8% per annum. In the circumstances I shall apply a factor of 6% to the top end of the category in making an award for pain, suffering and lossof amenities which is rounded to $700,000.

15. The plaintiff was given sick leave of two years after the accident, however he said he recommenced working in November 1992 because he had to support himself. He became an apprenticed roast-meat worker in a restaurant, earning $5,300 a month. However this job lasted only four months until March 1993, when - as he put it in evidence - he was replaced. The plaintiff was then unemployed until November 1993, when he obtained a part-time job again as a roast-meat worker. He was a substitute worker on duty for Saturdays and Sundays only, and earning $300 per day for 8 days per month. He worked in this position until July 1994, but excluding February and March of that year, making 7 months in total.

16. The plaintiff was then unemployed until October 1994, when he obtained a job as a van attendant earning $250 a day for 15-20 days a month, which is included in the schedule of damages at the median of 17.5 days. This job lasted a total of four months until January 1995, when the plaintiff said he was again replaced. He then found work as a waiter in a restaurant in Shatin at $6,500 per month, but said that he could not cope with the work and resigned after 2 days. His earnings for this period are included in the schedule of damages at $500. I decline to draw any adverse inference from the plaintiff's resignation from this job. He has repeatedly sought employment during the post-accident period despite the disadvantages from his injuries, and I accept that his resignation was prompted by factors arising from the accident.

17. The plaintiff was then unemployed until the summer of 1995, when he found casual work as a vehicle attendant from a friend's introduction. He was paid $300 per day for an average 14 days per month and worked for about 3 1/2 months from July until October 1995, when he said there was no more work for him to do. There followed a further period of unemployment until March 1996, when the plaintiff obtained another casual job as a van attendant from a similar introduction. He worked for an average 9 days a month at $300 per day from March until July 1996, when the business collapsed and he was again unemployed. He obtained a similar job the following month, August 1996, at $250 per month for an average 15 days a month. This job lasted some 2 months until October 1996, when the plaintiff said he was laid off.

18. The plaintiff has been unemployed from October 1996 until the trial. He spoke of trying to find work, but potential employers would tell him to wait and he would then hear no more. He has also registered for employment with the Labour Department, but again he has been told to wait and nothing has happened. I am satisfied from the plaintiff's residual disabilities, and from his history of finding employment since the accident, that he is not malingering and has made reasonable efforts to mitigate his losses.

19. The plaintiff's basic salary at the time of the accident is pleaded as $5,000 per month plus free meals, accomodation and a year end bonus. In his witness statement however the plaintiff states that his basic salary was $6,000 per month plus three free meals per day, accomodation, and a double pay bonus. In the schedule of damages his earnings at the time of the accident are put at $6,000 per month, but without clarification as to the additional benefits. These discrepancies were not resolved in oral evidence and I shall try to do so now.

20. The plaintiff is of course bound by his pleading that he earned $5,000 per month plus meals, accomodation and bonus. Consistent with his evidence, I shall take the pleaded bonus as double pay, which will add some $415 to his monthly wage over a year. The value of three free meals per day and accomodation I conservatively value at over $1,000 per month, and I therefore estimate the plaintiff's total package as worth $6,500 per month at the time of the accident.

21. The plaintiff was an apprentice mechanic and said in evidence that he would have qualified as a mechanic in about 2 years from the accident. The statement of claim avers that he would have completed his apprenticeship in 4 years from the accident. This discrepancy is not relevant in establishing the median earnings at trial date as the plaintiff would anyway have qualified as a mechanic by then. He claimed that he would have been earning $15,000 - 20,000 per month as a qualified mechanic, and his witness, Tao Kin Man, placed the figure at about $15,000 per month. Mr. Tao runs his own car-repairing business and I accept his figure of $15,000 per month as reliable.

22. The median pre-trial earnings would therefore be $(6,500+15,000)x1/2=$10,750 per month, multiplied by the intervening 69 months and 7 days from accident to trial, - a total of $744,258. From this must be deducted the plaintiff's actual earnings during that period, which are itemised in the revised schedule of damages and amount to $91,700. The total pre-trial loss of earnings is therefore $652,558, which is awarded.

23. To calculate the multiplicand for estimating the plaintiff's loss of future earnings Legal Aid Counsel uses the figures $15,000-$3,750=$11,250. The $15,000 represents the plaintiff's probable monthly earnings at trial but for the accident, and the $3,750 represents counsel's estimate of his present monthly earning capacity in mitigation of his losses. The latter figure is based on his earnings in his last job at $250 per day for a 15 day working month. This is a low figure but I find it amply justified by the plaintiff's working history since the accident. The multiplicand will therefore be $11,250.

24. In the schedule of damages the suggested multiplier is 18. The plaintiff is now aged 28 and a multiplier of 18 is too high. Miss Pinto acknowledged this in suggesting a multiplier of 15, which I accept. The award for loss of future earnings will therefore be $(11250x12x15)=$2,025,000.

25. In the revised schedule of damages the plaintiff has claimed for his medical expense and for his expenditure on travelling and tonic food as a result of the accident. The medical expenditure is supported by the various receipts in the bundle of documents, and the plaintiff has given evidence as to the other items. Pursuant to the itemised figures in the schedule, there will be a total award of $21,790 under this head.

26. I should mention in conclusion that I am surprised that a claim for loss of earning capacity has not been included in addition to that for loss of future earnings. The uncertainties of the plaintiff's future employment prospects, evidenced by his post-trial employment record, would have made such an award likely. An award for loss of earning capacity reflects the diminished value of a particular plaintiff in the labour market should he lose the job he already has. It represents his reduced competitiveness since the cause of action and his consequently increased difficulty in obtaining alternative employment. These considerations apply in the present case, but unfortunately I am unable make an award as the head of damage has not been pleaded.

The total award will therefore be -

There has been an employees compensation award in the District Court in the sum of $466,664. Credit will therefore be given to that extent, leaving a balance in respect of the present award of $2,932,684 plus interest, which will be calculated on the award before the reduction is made. The award for general damages attracts interest at 2% per annum from the date of the writ. Interest on the special damages will be at 5.5% from the date of the accident. The plaintiff is awarded costs with a certificate for counsel, and the plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.