YAN KWOK YUE v. DONG SHU KEI BEAU

HCPI 923/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 923 OF 2000

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J U D G M E N T

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1. In this action the Plaintiff, now aged 35, claims damages for personal injuries arising from an assault upon him by the Defendant on 30 August 1998 while he was working as a carpark security guard at AIA Tower, North Point, Hong Kong. The assault involved him being thrown by the Defendant against a wall, striking his head against the wall and resulting in injury to his head, neck and back.

2. Liability is no longer in dispute. On 12 September 2001 by consent interlocutory judgment was entered against the Defendant with damages to be assessed.

3. At the assessment of damages the Defendant was not represented.

4. The medical evidence regarding the Plaintiff's condition and treatment after the incident has not been disputed. Following the assault he was taken to Tang Shiu Kin Hospital. He appeared alert but tired and weak. There was a finding of local tenderness on the occipital region of the head and the thoracic and lumbar region. An X-ray was taken but showed no skull or spine injury. He was admitted to Ruttonjee Hospital the same day complaining of pain over the back of his head and in the lower back. An examination showed he had a 2 cm haematoma on the back of his head. After 2 days he was discharged from hospital and was given 7 days sick leave until 7 September 1998. He then returned to work but continued to attend Ruttonjee Hospital for follow up treatment.

5. On the day of his last follow up, 14 October 1998, the Plaintiff was still complaining of pain around the occipital region and poor concentration. He was referred to Western Psychiatric Centre for "anxiety".

6. The Plaintiff was first examined by Dr Cheung Fok Chi of that Centre in August 1999. At that stage he was unemployed. The history provided by Ruttonjee Hospital when the Plaintiff was first referred was that he had a six-month history of anxiety, depressed mood, irritability, recurrent nightmares and vivid daytime recollection of the assault of 30 August 1998. He was noted to have been nervous and depressed since then. He also complained of poor concentration, dizziness and insomnia and had been unable to work. He was diagnosed to be suffering from post-concussional syndrome.

7. On 5 April 2000 (some 19 months after the assault) the Plaintiff was still complaining to Dr Cheung of depressed mood, poor sleep, lack of concentration and loss of interest in his former hobbies. His recollections and nightmares were still present. Their frequency and intensity had decreased with time. Dr Cheung was of the view that the Plaintiff had made very limited progress with his illness despite treatment. He also said that it was his view that the assault on 30 August 1998 was a precipitating factor for the Plaintiff's illness and that his illness would have been unlikely to occur at this particular time in his life without the incident.

8. In a report of 22 March 2001 Dr Cheung reported that he had examined the Plaintiff on four occasions since April 2000. Overall the Plaintiff had shown very little improvement in his psychiatric condition. His mood had been depressed and irritable despite compliance with his prescribed anti-depressant medication. The Plaintiff had stated on all four occasions that he was under persistent stress because of the prolonged legal battle concerning his compensation. He also reported poor sleep, frequent headache, lack of concentration and loss of interest in activities. As a result, he had remained unemployed and was mostly confined to his home. His recollection and nightmares had, however, been reduced significantly. Dr Cheung stated that since April 2000 the Plaintiff had made little progress in his illness and he thought that the persistent stress as a result of his prolonged legal entanglement concerning compensation was a significant factor in impeding his recovery.

9. As I have said this evidence was not disputed and the medical reports from Tang Shiu Kin and Ruttonjee Hospital and Dr Cheung Fok Chi were put before the court by agreement.

10. In view of Dr Cheung's comments about the assault precipitating the Plaintiff's illness, there could be no issue as to causation in this trial.

11. The Plaintiff himself gave evidence as to his current complaints. His spoke of continuing pain at the back of his head and in his neck and upper back. Insofar as the psychiatric aspect of his condition is concerned, he spoke of nightmares, depression, a feeling of "compression" (tightness) and unhappiness. His injuries had caused him to lose interest in his hobbies of football and jogging. He suffered from loss of concentration. He did not feel he could go back to work at present because of his physical and mental condition. He was particularly concerned that his colleagues knew that he was a mental patient. He believed that they would discriminate against him.

12. The Plaintiff's evidence was supported by that of Dr Karam Singer who had seen the Plaintiff on 1 June 2000 and 6 December 2001. He gave evidence of his diagnosis of the Plaintiff's condition and his prognosis. This evidence was not agreed by the Defendant but no medical evidence was called by the Defendant to contradict that of Dr Singer.

13. Dr Singer recounted the Plaintiff's current physical complaints which included:

(1) persistent headache

(2) dizziness

(3) neck pain with neck stiffness

(4) upper back pain

14. He also described the Plaintiff's current psychiatric complaints as :

(1) nightmares of the incident

(2) recurrent waking recollection of the incident causing panic and palpitation

(3) distress when hearing of similar assaults

(4) avoidance of objects and situations that reminded him of the incident

(5) lose of interest in activities

(6) a feeling of detachment from others

(7) a poor sleep pattern

(8) irritability which affected his relationship with his mother with whom he lives

(9) depressive mood

(10) suicidal ideas

(11) agitation, restlessness, cold, sweats and palpitation

(12) feelings of worthlessness.

15. He diagnosed the Plaintiff as suffering from 3 conditions:

(1) Post Traumatic Stress Disorder (this diagnosis was admitted by the Defendant in his Answer to the Plaintiff's Revised Statement of Damages). Dr Singer described it as moderate to severe in degree.

(2) Post Concussional Syndrome (the same diagnosis as that made at Western Psychiatric Centre referred to in Dr Cheung's report). Dr Singer described it as moderate in degree.

(3) Depressive Disorder. Dr Singer described it as moderate in degree and not a major depressive disorder.

16. In commenting on Dr Cheung Fok Chi's statement that the prolonged litigation was a significant factor in impeding the Plaintiff's recovery, Dr Singer acknowledged that the stress of litigation was of some significance but disputed that it was of major significance. His evidence was that while the end of litigation might result in improvement in his depressive disorder and might slightly affect the post traumatic stress syndrome (no more than a 10% improvement), it would not affect the post concussional syndrome, the principal symptoms of which were headache and dizziness.

17. On being questioned on the view expressed by Dr C K Wong in a report commissioned by the Defendant, Dr Singer insisted that the Plaintiff was suffering from symptoms which could not solely be accounted for by post traumatic stress syndrome and which he would classify as post concussional syndrome and depressive disorder. He said that his treatment would have to continue indefinitely.

18. In the absence of any contradictory evidence, I accepted Dr Singer's diagnosis of the Plaintiff's condition, the effect it would have on his employment prospects and his recommendations for treatment. While I accepted that there was very little prospect on the Plaintiff obtaining any employment in the open market for the first two years of his treatment, I considered that Dr Singer may have underestimated the effect of the end of litigation on the Plaintiff.

19. The evidence showed that prior to the accident, he had displayed significant motivation in obtaining the necessary qualifications to become a safety supervisor on a construction site. In evidence he had given the impression of an intelligent young man who, though now no doubt affected by the assault, still retained a sense of humour and did not outwardly at least display signs of anxiety. I felt that Dr Singer had perhaps not fully explored the significance of the fact that the Plaintiff now spends his days reading in a local library. This activity does indicate that the Plaintiff has retained some motivation and a sense of enquiry. While the residual effects of post traumatic stress disorder and the effects of the post concussional stress disorder have probably affected his ability to take on a job as responsible as that of an safety officer, I consider that the quality of his life might be significantly improved once the litigation is over.

Pain, Suffering, Loss of Amenity

20. I have been referred by Mr Chiu to a number of cases in which the court has made awards based on psychiatric injuries, e.g. Hong Kong Macao Hydrofoil Co. Ltd v Ng Chun Wai and Others, unrep., (Ho Sau Ying and Lee Ngan Ching), AJ Folio No. 209 of 1984; Wai Yin Wa v Laminate Enterprises Ltd, HCPI 514/1997; Tsoi Kwong Ming v Green Valley Landfill Ltd, HCPI 407/97; Yu Heung Yuk v Ho Man & Others, HCPI 57/98.

21. I have borne in mind that although the end of litigation may to some extent relieve the symptoms of post traumatic stress disorder and depressive disorder, the Plaintiff has undergone and will undergo lengthy psychiatric treatment and is likely to have to undergo follow up treatment for the rest of his life. He has been prevented by the incident from embarking on a career as a safety supervisor to which he had devoted considerable energies. The incident has adversely affected his relationship with his mother and resulted in him losing his long-time girlfriend. Despite treatment he is likely to suffer residual disabilities from the incident.

22. I would place his injuries in the upper range of the "serious injury" category referred to in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 and award him $500,000.00 under this head.

Loss of Earnings

23. At the time of the accident the Plaintiff was earning $6,500.00 per month as a carpark security guard. I accept that this job was just a temporary one and that the Plaintiff was determined to be a safety supervisor at a construction site. While that was not a job that required formal qualifications, the Plaintiff had nonetheless attained a number of qualifications which would assist him obtaining such employment. These included undergoing a 50-day full-time site administration training course and a 28-hour part-time construction site supervisor course and obtaining a Standard First Aid certificate. He had previously worked as a construction site clerk for a year.

24. I accept the Plaintiff's evidence that it was not only persecution by his colleagues, but also his disabilities resulting from the assault that caused his employment as a carpark security guard to come to an end at the end of November 1998. If the assault had not occurred, I am satisfied that by then he would in any event, given his determination, probably have found employment as an safety supervisor.

25. I have heard widely ranging evidence as to the current salary of safety supervisors.

26. The Plaintiff himself told me that such employment would command salaries ranging from $12,000.00 to $15,000.00 per month. I assume that this information must have come from the friends of whom he spoke in that field. Even his counsel, Mr Chiu, however, did not insist on such salary being used by the court but referred to the figures of $9,000.00 to $10,000.00 given by Mr Daniel Yeung Yiu Ming in his Witness Statement of 31 October 2001. Mr Yeung was called by the Defendant. He is the Principal Consultant of an industrial safety consulting company and a friend of the Defendant's father. In his evidence in court he maintained while the figures of $9,000.00 to $10,000.00 per month were correct on 31 October 2001 (i.e. 6 weeks ago), such salaries had now fallen to $6,000.00 to $7,500.00 per month. He produced a contract (Exh. D1(a)) dated 15 November 2001 involving his company where the employee was to receive $6,000.00 per month. During the course of his evidence, he obtained a letter from the Construction Industry Training Authority (Exh. D2) which stated that the average salary of 9 of the students who had attended their course as assistant safety officers during 2001 had been employed as safety supervisors at an average of $8,900.00 per month.

27. I formed the impression that Mr Yeung, possibly from a feeling of loyalty to the Defendant's family, was now trying to minimize the current salary of safety supervisors. Despite being in an industrial safety company, he could only produce one contract showing a salary of as low as $6,000.00 per month. On the other hand, I cannot ignore his comment that the figure of $8,900.00 per month was for students who had completed the assistant safety officer course which the Plaintiff had not completed. It seemed to me on the assumption that those figures were the same ones applicable in 1998, while the Plaintiff might not have been able to command such a salary immediately, that would be a salary to which after a few years experience he could not only aspire but hope to exceed.

Pre-trial Loss of Earnings

28. I had no direct evidence as to the salary of safety supervisors in 1998. Mr Chiu has invited me to conclude that they have declined since then in line with the consumer price index. There is no evidence to suggest that they have. I do have evidence that the availability of work in the construction industry varies from time to time. I assume that that is likely to affect the salaries offered. Bearing in mind that economic conditions were not good in 1998 and have not taken any significant upturn since then, I consider it reasonable to act on the assumption that salaries have not changed significantly since then.

29. When working as a construction site clerk until July 1998, the Plaintiff was earning $8,000.00 per month. It is reasonable to assume that his salary as a safety supervisor would have been greater than that but not as great as the average salary for someone who had undergone an Assistant safety officer course. For the purpose of pre-trial loss of earnings, I accordingly take the figure of $8,500.00 per month. I accept that the Plaintiff had been unable to work during this period as a result of the assault.

30. As compensation for loss of earnings during this pre-trial period, I award him $310,250.00 (i.e. $8,500.00 x 36.5 months).

Post Trial Loss of Earnings

31. For the two-year period following trial, when he will undergo treatment, I accept that the Plaintiff realistically will be unable to find open employment. I have proceeded on the assumption that he would have had sufficient experience to command the average salary now being granted to persons who have undergone the assistant safety officer course ($8,900.00 a month). I award him $213,600.00 (i.e. $8,900.00 per month x 24).

32. Thereafter the Plaintiff has accepted in his pleading that he would be capable of undertaking simple office work earning $7,000.00 per month. By then I find that the Plaintiff would have been able to command the average salary for experienced safety officers which I take at $9,500.00 per month (the mean figure based on Mr Yeung's figures in his statement of 31 October 2001).

33. Bearing in mind that the Plaintiff's current age (35) and the nature of the employment, I consider a multiplier of 13 is appropriate in respect of loss of earnings if applied from today. Two years of those 13 are accounted for by the award I have made to cover his loss of earnings during treatment. For the remainder of his working life I adopt a multiplier of 11 and I award a figure of $330,000.00 (i.e. $9,500.00 x 12 x 11) - ($7,000.00 x 12 x 11) = $330,000.00.

Loss of Mandatory Profident Fund

34. This is claimed as 5% of the total loss of future earnings.

$543,600.00 (i.e. $330,000.00 + $213,600.00) x 5% = $27,180.00

35. I award him $27,180.00 under this head.

Future Medical Expenses

36. I accept Dr Singer's evidence as to the treatment the Plaintiff should receive in the future and that it is appropriate that it be conducted in a private setting.

37. Based on Dr Singer's figures, which are not contradicted, I calculate those expenses as follows:

$65,000.00 x 2 years = $130,000.00

$36,000.00 x 3 years = $108,000.00

$3,000.00 x 4 times per annum for life (using a multiplier of 14)

= $168,000.00

Total future expenses: $406,000.00

I award the Plaintiff $406,000.00 under this head.

Loss of Earnings Capacity

38. I find that there is a risk that at some stage during the Plaintiff's working life, he will lose his job and will suffer some financial loss as a result of his disadvantage in the labour market. Bearing in mind that the work of which he is capable will be simple office work, I do not regard this risk as particularly substantial. I find that the Plaintiff can be adequately compensated for this risk by 6 months salary at $7,000.00 per month.

39. I award him $42,000.00 under this head.

Special Damages

40. I find the Plaintiff's claim for $780.00 representing his bus fares to and from medical appointments to be justified and reasonable as is the modest sum of $2,000.00 he claims for tonic foods (ginseng and birds nest) to aid his recovery.

41. I award him these two sums.

Summary of Damages Awarded

43. The Plaintiff is to be given credit for a sum of $107,640.00 awarded to him under the Employees Compensation Ordinance.

44. There will accordingly be judgement for the Plaintiff in the sum of $1,723,570.00 plus interest on general damages, pain suffering and loss of amenity at 2% from the date of service of the writ to the date of judgment and interest at half judgment rate on special damages and damages for pre-trial loss of earnings from the date of accident until the date of the judgment.

45. Unless either party applies to be heard on the question of costs within 14 days, I order the Plaintiff's costs to be taxed if not agreed and paid by the Defendant.