LEUNG KWOK KEUNG, JOHNAKIN v. LEUNG IU WA

HCPI 920/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 920/2001

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A S S E S S M E N T  O F  D A M A G E S

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1.  On 15^th May 1999 the plaintiff was a rear seat passenger in a motor vehicle driven by the defendant.  That vehicle was involved in a collision.  The plaintiff was not wearing a seat belt at the time.  It is not disputed that he sustained extensive head injuries.  Judgment has been entered against the defendant in respect of liability:  he is held to be liable to compensate the plaintiff of 80% of proven damages.

2.  A review of the various medical reports available shows that the injuries sustained and the treatment rendered to the plaintiff are fairly summarised in his revised statement of damages which I substantially reproduce:

“As a result of the accident, the Plaintiff suffered severe head injury. Immediately after the accident, he was admitted to and intubated at United Christian Hospital with a Glasgow coma score of 6/15.  He had 7 cm long lacerations of scalp over the forehead, which was sutured.  A CT scan showed that he had fractures of skull with intracranial haematoma.  He was then transferred to Prince of Wales Hospital. There, emergency decompressive craniectomy was performed by the neurosurgical team.  The depressed fracture was excised.  The contused right frontal lobe was removed and an intracranial pressure monitoring catheter was inserted.

After the operations, the Plaintiff was found to have cerebral spinal fluid rhinorrhoea due to multiple fractures of the anterior cranial fossa and the paranasal sinuses.  Fracture was also found in the medial orbital wall.  The Plaintiff subsequently developed diabetes insipidus. He remained ventilated and a tracheostomy was performed.  He came off the ventilator on 19th May 1999.  On 20th May 1999, the intracranial pressure monitoring catheter was removed and the following day tracheostomy was done.  Antibiotic was continued and the Plaintiff had his fracture base of skull repaired on 1st June 1999.  Because of persistent cerebral spinal fluid rhinorrhoea, he was further reviewed by ENT team on 2nd June 1999.  CT scan of the sinuses showed multiple fractures over anterior cranial fossa which accounted for his cerebral spinal fluid leakage, which was repaired on 8th June 1999.  In August 1999, a further cranioplasty was done for his cavarial defect.

The Plaintiff was in the Intensive Care Unit for 9 days.  He remained in Prince of Wales Hospital until 19th June 1999 when he was transferred to Cheshire Home, Shatin, for convalescence remaining there until 9th July 1999.  He was readmitted to Prince of Wales Hospital for 1day on 24th August 1999, for 4 days from 27th August 1999 to 31st August 1999.  He was given sick leave for a total of 165 days from 16th May 1999 to 2nd October 1999. 

3.  The physical consequences of  the plaintiff’s injuries are summarized thus:

The Plaintiff's head injury was complicated by fractures of skull, depressed over the calvarium but multiple at the base compounded into the nose causing cerebral spinal fluid rhinorrhoea and into the ears.

The Plaintiff had severe right frontal lobe contusion of the brain leading to extensive oedema, subarachnoid haemorrhage and midline shift of the brain and damage to the hypothalamus resulting in diabetes insipidus.

The Plaintiff has post-traumatic epileptic seizures, which may recur from time to time, so that he will have to take anticonvulsant for life.

As a result of frontal-basal damage to the olfactory nerves, the Plaintiff has bilateral loss of smell (anosmia) and has a persistent bizarre smell… which will be permanent.

The Plaintiff has 2 permanent surgical scars at the front of the head with visible bony defects under the skin.

As a result of frontal lobe damage the Plaintiff experienced urinary and faecal incontinence.

The Plaintiff has severe loss of brain cells (encephalomalacia) at right frontal lobe and mild hoarseness of voice. 

4.  The major, but not the only, issue in this matter is the plaintiff’s ability either to resume his post-accident occupation or his residual earning capacity.  Upon that issue the neurologists appointed by the respective parties disagree:  the psychiatrist appointed jointly by the parties opined that the plaintiff is only able to work at jobs with low demands and then under close supervision.  There is further a report from a psychologist from which each party draws support for his contention as well as other medical notes and records.  There is also evidence from a former superior of the plaintiff.  I propose to deal with this issue first, as the others will fall into place around it.

The plaintiff’s employment

5.  The facts relating to the plaintiff’s employment prior to and as at the date of the accident appear from the documentation as well as the evidence of one Michael Balistreri, a former superior of the plaintiff.  I find proved the facts which follow.

6.  The plaintiff passed the Hong Kong Certificate of Education Examination:  he went on to obtain a diploma in radio and telecommunication technology by way of full-time study.  After further study he obtained a higher certificate in electronic engineering.  He also started to study for an MBA but abandoned this venture after two years.  He had extensive work experience in the electronics field as an engineer and field engineer.

7.  In  December 1995 the plaintiff took up employment with The General Electric Company of Hong Kong Ltd as Service Manager, Hong Kong and China:  he was seconded to a subsidiary company, Picker International, Inc., in which the particular field in which the plaintiff was employed primarily related to the after sales service and support of diagnostic imaging systems.  It is not disputed that this post involved regular travel within the region.  He managed a staff of some 60 people.

8.  In around April 1999 a separate entity, Picker International Hong Kong Ltd., was incorporated:  it was a wholly-owned subsidiary of The General Electric Company UK.  The plaintiff’s employment was transferred to that company.  In about April 2000 The General Electric Company changed its name to Marconi and, over a period of about a year, re-named subsidiary companies: those under the Picker name became “Marconi Medical Services”.

9.  The plaintiff’s employment by Marconi Medical Systems HK Ltd came to and end in September 2000.  For the sake of completeness I note that Mr Balistreri’s employment with Marconi ended in February 2001 and that the entire business division of Marconi Medical Systems was acquired by the Philips group in December 2001.

10.  I am satisfied that, as at the date of the accident, the plaintiff’s remuneration, apart from medical benefits, was $54,000.00 per month plus a guaranteed annual bonus of  $54,000.00 plus a further annual bonus which was performance related.  The monthly salary and guaranteed bonus was increased to $57,240.00 with effect from August 1999. 

11.  The performance-related bonus was the subject of dispute between the parties and of substantial cross-examination.  However, the plaintiff now accepts that in the light of the evidence the calculation of his claim for this item is erroneous and contends that an average of the last two payments accruing pre-accident should form the basis of the calculation:  conversely, the defendant now says that a fair and reasonable approach to the plaintiff’s loss under this item is to average the last three years payments.

The plaintiff’s return to work and subsequent retrenchment

12.  Despite the severity of his injuries and the fact that the defendant’s neurosurgeon accepts a period of six months sick leave as reasonable, the plaintiff returned to office in late July 1999, less than three months after the accident.  He did so, according to his testimony, because he was concerned about losing his employment.

13.  He did not return to his original post, however, but to a post of Customer Support Manager.  According to the evidence of Mr Balistreri, which I accept, that post

“…existed in the company; it did not exist here in Hong Kong…[it] was effectively an assistant to the service manager for the area…We did not have that position in…the China operations…

…when [the plaintiff] was coming back to work…we thought that this would be a way that would allow him to come back to work to begin to get re-oriented to day-to-day work…”

14.  Not only did the plaintiff’s employer create this post for him but it continued to remunerate him on the same terms as previously including increments, albeit that the quantum of the performance-related bonus reduced.

15.  At the time he returned to office the plaintiff needed the daily, ongoing care of his wife.  Her evidence, which was not the subject of dispute, was that she took unpaid leave from her employment from the date of the accident until 31^st October 1999 to care for him.  On three occasions in July, August and October 1999 he was required to undertake business trips:  because of his condition, he found it necessary to have her accompany him.

16.  The plaintiff remained in this newly-created post until 25^th September 2000 when he was retrenched, having been told of this by letter dated three days earlier.  There is no dispute that he was retrenched:  at issue is whether it was a consequence of the injuries he sustained, as the plaintiff says, or, as the defendant contends, either voluntary or simply an inevitability due to restructuring of his employer’s affairs.

17.  In support of his contention that the plaintiff acquiesced in his redundancy the defendant refers to the letter of 22^nd September 1999 addressed to the plaintiff, signed on behalf of Marconi Medical Systems HK Ltd by its General Manager, Greater China region, [page 205] which opens with the words

“Further to our discussions, please be confirmed that your position as Service Manager (sic) with our company…will be made redundant effective…”  [Emphasis added]

18.  The plaintiff disputes that there were any discussions between him and the signatory to the letter, or anyone else:  his evidence is to the effect that the first indication he had of actual dismissal was when he received the letter itself.  I accept his evidence.  That document has a formulaic ring to it which is demonstrated by the fact that it purports to dismiss him from a post which he had not occupied for 16 months, making no reference to a post which had been specifically created for him.  Moreover, even if he had been told by his employer that he retrenchment was about to occur, his acceptance of  that decision can hardly be categorized as a voluntary surrender of his employment.

19.  The plaintiff’s evidence is further supported by that of Mr Balistreri.  He appeared nonplussed when the suggestion was put to him that the plaintiff had been “consulted” before being retrenched and said

“…it would surprise me because the practice in this company – and most companies I’ve been associated with – is that the individual who is being retrenched does not learn of this fact until the time it happens.

It is not something that they’re consulted on.”

That evidence accords with commonsense.  I accept it.

20.  It is to be noted from the letter of 22^nd September 2000 that it was the position occupied by the plaintiff that was to be scrapped.  Mr Balistreri made reference to this in his evidence when he said

“The position that was effectively eliminated was the one that we had created for [the plaintiff]to bring him back and help him work back into the role.”

21.  The defendant also sought to place reliance on subsequent correspondence with, inter alia, Philips Medical Systems (PMMS HK) Ltd and particularly on a letter [page 212] dated 12^th November 2002 to the defendant’s solicitors which states that the plaintiff “…was retrenched as a result of our organization restructuring, and not any other reasons”.  In truth, that statement takes the matter no further.  The plaintiff does not suggest that he was not the subject of retrenchment.  Nor does he suggest that that retrenchment was not part of an overall reorganization of Marconi Medical Services HK Ltd. 

22.  His case is that he, as opposed to anyone else, was retrenched at that time because he was unable to perform his duties effectively as a direct consequence of the injuries he sustained in the accident:  that had it not been for the fact of those injuries and their effect on him, he would not have been retrenched.

23.  In addition in cross-examination he was categorical in the following terms:

“Johnakin, had the accident never occurred, would've still been the service manager for Greater China and we wouldn't be having this discussion.”

The medical opinions

24.  Because of the view I take of the cause of the plaintiff’s retrenchment and his ability to work, it will be helpful, before considering the effect of Mr Balistreri’s evidence, to consider the opinions of the various medical practitioners insofar as they deal with the plaintiff’s disabilities.

25.  In an internal memorandum dated 22^nd May 2000 [page 151], a year after the accident, Dr. Clarence Leung of the Division of Neurosurgery at Prince of Wales Hospital reported on an examination apparently conducted on 26^th April 2000:  his simple assertion was “…he was able to continue working as a service manager.”  The plaintiff in his evidence testified that he had thought that to be the position, too, at that time.  That report, of course, is dated well in advance of the date upon which the plaintiff’s employment was terminated.

26.  In March 2001 the plaintiff was referred to a clinical psychologist at Prince of Wales Hospital for a neuropsychological assessment.  The report is dated 10^th March 2001 [page 143-1].  Apart from a general assessment of the plaintiff, six specific tests were executed: 

26.1 Wechsler Adult Intelligence Scale.  After detailing the results of the test the opinion is expressed:

Mr Leung's low Full Scale IQ suggested integrative problems. In addition, there was a statistical significant difference between the Verbal Scale IQ and Performance Scale IQ, providing preliminary evidences to suggest organic bases of his cognitive problems.

In regard to his scores on verbal subtests, he demonstrated satisfactory performance in numerical reasoning, attention and concentration, and general knowledge with compared with the normative data. He showed average ability in verbal concept formation. However, with regard to his premorbid functioning, the present results suggested deterioration in his verbal ability.

His scores on non-verbal subtests suggested significant deterioration in his non-verbal performance. He was particularly weak in non-verbal reasoning as well as visuo-perceptual organization. From the information provided by clinical observation, it further supported that his non-verbal performance was poor…

Based on Mr Leung's particularly high premorbid functioning, it is suggested that significant deterioration in his overall IQ, indicating marked impairment involving perceptual-motor integration.

26.2 Wechsler Memory Scale. He was found to have a “very superior” memory.

26.3 Rey-Osterieth Complex Figure Test.  He demonstrated “explicit strategic planning” and was found to have “very superior” constructional ability, short-term and long-term visual memory.

26.4 Wisconsin Card Sorting Test.  The opinion is expressed:

Results indicated that there was no gross impairment in his executive functions, indicating that his ability in strategic planning, organized searching, the ability to use feedback to shift cognitive sets, and goal-oriented behaviour were preserved.

26.5 Word Fluency Test.   The report concluded that

…his performance was poor. It suggests that there may be impairment in his frontal functioning.

26.6 Trailmaking tests.  The results indicated that

…there was no significant impairment in his cognitive flexibility as well as visuospatial and motor function

27.  The final conclusion of the report is

Taken together all the information from the neuropsychological assessment and behavioural observation, there is no gross impairment in Mr Leung's executive functions and cognitive flexibility. Regarding the memory functions, Mr Leung demonstrates excellent abilities in verbal and visual memory, including both the recent and remote memory.

However, given his education and occupational attainment, his low IQ suggested marked overall impairment in his intellectual functioning, especially perceptual-motor integration.

28.  It is plain from this report, and the tests, that whilst individual facets of the plaintiff’s functioning are still of average or above average standard, there has been a significant deterioration in his intellectual functioning subsequent to the accident.  That is consistent with Mr. Balistreri’s observations.  Surprisingly, this report does not appear to have been made available to either of the neurologists who treated or examined the plaintiff. 

29.  Dr Peter WU, neurologist, had been treating the plaintiff and prepared two reports on him dated, respectively, 25^th August 2001 [page 117] and 23^rd May 2002 [page 119] at the request of his solicitors.

30.  In the first report Dr WU expressed no direct opinion on the plaintiff’s ability to return to work commenting, generally, as follows:

As a life saving procedure a right frontal lobectomy had to be performed for decompression of the brain at the craniectomy. The right frontal lobe is vital for the control of emotion and temperament in a right handed person such as Mr Leung. The loss of right frontal lobe will therefore mean a permanent deficit in his emotional control which is of extreme importance to a business executive in high position. The post-traumatic epileptic seizures which had occurred on 2 occasions in January and May 2001 while on full dosage of anticonvulsant are likely to recur from time to time. … and it is very likely that he will have to take the anticonvulsant for life. The anosmia and the persistent smell of burnt paper will be permanent … Loss of smell will mean loss of taste and is certainly a major handicap and in some circumstances it can pose a danger to life. The 2 surgical scars at the frontal region will be permanent …

31.  In the second report, after detailing a number of complaints, to which I shall return, he commented in these terms:

It has been over 3 years now since Mr Leung was injured in the car accident on 15th May 1999. All his neurological deficits will be permanent. Prior to the accident Mr Leung worked as the Service Manager of Medical Imaging Department of General Electric Co in Hong Kong directing all the maintenance of medical imaging equipments in Hong Kong. The loss sense of smell, the constant threat of epileptic seizures, his inability to control his emotions, his unkempt appearance and his absentmindedness will deter him from being employed in his previous position of great responsibility. Additionally he has been out of the track of the high technology world for 3 years because of his injury. I am quite certain that his high tech career has virtually finished on the fateful date of 15th May 1999.

Can Mr Leung live a normal life for the rest of his life? I think he will have to readjust his life because of life long threat of epileptic seizure, the constant bizarre altered sense of smell, his inability to detect even a burnt cooker or a gas leak in his home and his constant emotional outbursts. He will require life long administration of anticonvulsants under constant and regular medical supervision. The cost will be about HK 1,000 per month. If he is to go on a trip overseas he will definitely require the escort of his wife or another person who will be familiar to his physical condition and his daily needs.

32.  Between these two reports Dr YU Chung-ping, neurologist, examined the plaintiff at the request of the defendant’s solicitors on 17^th January 2002.  There is no indication whether his report was furnished to Dr WU when he prepared his second report.  Dr YU’s diagnosis was substantially the same as those made by others before him.  He expressed the following opinions:

·          It is now nearly 2 years after the injury. All the deficits will be permanent. I do not envisage any improvement.

·          There is no effective treatment for loss of smell.

·          The urinary incontinence will remain because of MR evidence of brain cell loss affecting the control centre. No medications or surgery can cure this kind of urinary incontinence.

·          With persistent EEG abnormalities, I recommend life-long anti-convulsants, which he is already taking.

·          The cosmetic appearance can be further improved by plastic surgery of the bony defects, but there is a definite chance of future infection and further scarring. I personally do not recommend further operations unless the patient cannot live with his present cosmetic appearance.

I recommend an overall sick leave period to be 6 months. Further sick leave (up to 4 weeks) may be granted for the several attacks of epilepsy which he had more than 6 months after the Injury.

Since Mr. Leung shows very little impairment of neuro-cognitive functions using bedside tests such as the mini-mental test, he should be able to return to a job with fair intellectual demand. However, I shall rely more on detailed psychometric analysis (available from a specialised clinical psychologist) if there is a dispute of his higher mental abilities. He should be given a probational period of 3 months if he contemplates return to his previous occupation.

33.  Nothing in this report indicates whether Dr YU was aware of the pre-accident occupation of the plaintiff.  What, in my judgment, emerges from the final paragraph of this extract is, firstly, that Dr YU is of the view that plaintiff would be able to return to “a job with fair intellectual demand” which, of course, is not necessarily his former employment, and, secondly, his opinion is in any event qualified being based only upon “bedside tests” rather than a detailed psychometric analysis.

34.  The plaintiff was then examined on 19th June 2002 by Dr CHUNG See-yuen, psychiatrist, at the joint request of the parties.  He recorded [page125] the plaintiff’s then complaints as being: loss of the sense of smell;  suffered from three epileptic attacks since 2001 but none in 2002.  He was on anti-epileptic medication; initial urinary and bowel incontinence but he had not had such problems in 2002; recent memory was affected;  lack of patience and difficulty in controlling his temper; scars over his scalp causing embarrassment when people look at him; dizziness once or twice a year but no persistent headaches; saddened by the injury and worried that he cannot secure a job; his wife complained that he has spent a lot of money in shopping despite having no income.  Conversely, the plaintiff expressed the belief that his intellectual function was not affected.

35.  Dr CHUNG spoke to the plaintiff’s wife.  She confirmed that, since the accident, the plaintiff had become impulsive;  he had difficulty in controlling his temper:  he had difficulty in managing his finances, including attempting what she perceived as unwise business ventures;  his recent memory was impaired; and he was depressed by the injuries.

36.  She added that the plaintiff also neglected his appearance;  lacked motivation;  only helped with housework if asked to do so;  had become stubborn.  In her view he had “changed a lot” since the accident.

37.  During his interview with the plaintiff Dr CHUNG found his mood to be “generally on the happy side”, claiming that such problems as he had were minor; he was attentive with relevant and coherent speech; he expressed his ideas and feelings well;  his concentration was not affected;  his intelligence, tested, was within average range;  his memory function was found to be satisfactory.

38.  Dr CHUNG opined that the plaintiff was suffering from a personality change due to head trauma:  a persistent personality disturbance that represented a change from the individual’s previous characteristic personality pattern.  He accepted that the problems the plaintiff was experiencing were genuine and consistent with the head injury he sustained:  these included a lack of foresight with impaired judgement; difficulty in making appropriate decision;  impatience;  impaired impulse control and short-temper;  display of behaviour not appropriate to social convention;  lack of care for his external appearance;  tired easily;  lacked initiative and motivation;  restricted emotional response;  mild impairment of intellectual and memory function; stubbornness;  inability to manage his finances.

39.  In addition Dr CHUNG was of the opinion that the plaintiff had poor insight into his personality problems:  the plaintiff did not consider that he displayed the problems and did notaccept that the problems had affected him.  It is pertinent to note that an example of this occurred during cross-examination:  when it was suggested to him that he has the ability to take up a middle management position he responded “I understand” and then “Thank you” when it was suggested to him that he had the ability to do such work.

40.  Dr CHUNG characterized the plaintiff’s impairment as “of moderate degree…compatible with some, but not all, useful functioning.”  He went on to express the opinion that the plaintiff

“…is mentally not fit to work at the pre-accident jobs as a manager, engineer or technician.  He cannot do trading business.  He is only able to work at jobs with low demand and he has to work under close supervision.  I believe he is mentally fit to work as a car-park attendant, shop-assistant or watchman.  He will have difficulty in seeking a job and sustaining it due to the mental problems.”

41.  He was on two occasions asked by the defendant’s solicitors to reconsider his opinions, especially in regard to the plaintiff’s working capacity, consequent upon additional material being made available to them.  In each instance [pages 139 and 143] he considered the material provided but maintained his former opinions.

42.  In addition to these medical reports there were also what were referred to as notes made during consultations between the plaintiff and a Dr. Tommy CHAN, a member of the psychiatric department at the Prince of Wales Hospital.  The plaintiff’s evidence was that he had been referred to that department in connection with sleeping problems and to receive counselling to assist him with his money management problems.  He expressed the view in evidence that this had never really been necessary, a response which even now is consistent with Dr CHUNG’s earlier opinion that the plaintiff lacks insight into his condition.

43.  I do not intend to traverse those notes as they seem to me to advance neither party’s case.  The plaintiff was largely unable to comment on them.  They are the notes of a third party who was not called to testify. 

44.  In summary, on the one hand there are the reports of the plaintiff’s neurologist and the jointly-appointed psychiatrist which express the view that the plaintiff will be unable to resume his original employment or any similar employment:  on the other is the very early report, pre-retrenchment, to the effect that he would be able to resume his original employment and the report of the neurologist appointed by the defendant who expresses a qualified view that the plaintiff would be able to undertake employment which involves fair intellectual demand.

45.  There is also the expressed belief of the plaintiff that his faculties are unimpaired and he is capable of resuming the type of employment he had pre-accident if only the opportunity arose.  However, I accept Dr. CHUNG’s view that the plaintiff has only limited insight into his shortcomings.

Mr Balistreri’s evidence

46.  I have touched on the evidence of Mr Balistreri in the context of how it came to pass that the plaintiff’s services were terminated.  His evidence went further.  He was clearly understanding of the plaintiff’s circumstances after the accident and sympathetic towards him:  he, and presumably others with whom he worked, seems to have gone to considerable lengths to ensure that the plaintiff had more than enough opportunity to re-establish himself within his employment.  Having said that, I do not for one moment suggest that his evidence was biased in favour of the plaintiff:  he impressed me as a completely frank, open and honest witness.

47.  His evidence provides valuable material.  He had enjoyed long term contact with the plaintiff before the accident:  a post was created for the plaintiff post-accident:  he had the task of preparing an assessment report on the plaintiff after he had occupied that post [page 201]: he was involved in the decision to terminate the plaintiff’s employment.  He was a person who was well placed to observe and comment on the plaintiff’s abilities at a practical level.

48.  The following extracts from his evidence encapsulate the plaintiff’s position as Mr Balistreri perceived it:

[Evidence in chief]

“… when Mr Leung was coming back to work, he was not in a physical state, or in a mental state from our observations, that he could step into the role that he had formerly occupied. We wanted to bring him back and get him back involved with the work of the operation and we thought that this would be a way that would allow him to come back to work to begin to get re-orientated to day-to-day work life and get back involved with customers and things again.

“…from the perspective of what we were trying to accomplish, our expectations were not very high at the beginning.  Our expectations were that, with time, his, skills and his ability to perform his duties would improve. And to some degree that happened but, ultimately… his work was not satisfactory. He was not performing in the role of customer support manager in the manner that we would expect him to have performed.

“…we had put him in a lower level type of a position in an effort to help him come back to his service manager job at some point, and he was not performing in that position.

“…he was doing rather well before the accident and I would have expected he would've been continuing to do rather well as time went along.

“[The plaintiff] was a man on the mend…he was not the individual that he was before the accident. Yes, he came into the office but in the interactions that I … and … others had with him, he was not the same guy.  He was there physically but he wasn't in the game mentally. “

[Cross-examination]

“Q. You mentioned in your witness statement, Mr Balistreri, that if the plaintiff had not left the employment, he might be given more time to improve and to prove himself, is that right?

A. That's true… I was in no hurry to push Mr Leung out the door.

“Had Mr Leung come back and come back with the vigour and the motivation and the determination to do his job, we would never have put him in the role that we put him in and we would've put him back in the position of service manager for the country.

“…we had Johnakin in a position that he wasn't doing very well at, which was a much lower-level position than the service manager's role,

“Q. Right. Am I correct to say that at the time when he was retrenched in September 2000, his condition was in fact improving, although… slowly?

A. Correct. When he -- when he first came back, quite honestly, he should not have been in the office, you know.

“…his ability to function as a service manager was non- existent. He was not functioning in the role that we had assigned to him, which was much lower stress…less opportunity for interaction with customers and at least in a face-to-face confrontational situation sort of basis, and he was not doing that job either…”

Summary

49.  I am satisfied that the plaintiff has proved that his employment was terminated as a result his inability to discharge his reduced duties consequent upon the injuries sustained by him in the accident:  that had it not been for those injuries he would have continued to be employed in the position he occupied at the time of the accident.

50.  I am further satisfied that the plaintiff has proved, looking at the medical evidence overall as well as the evidence of Mr Balistreri, that he is unable to return to an occupation the equivalent to the position he occupied at the time of the accident.

51.  It is sheer speculation for the defendant to suggest that because the Philips group acquired the businesses of Marconi Medical Systems in December 2001, fully 15 months after the plaintiff’s services had been terminated, he “would have been retrenched in any event”.

Future earning ability

52.  However, I am not persuaded that the plaintiff is unable to work at all or even only to work as a car-park attendant, shop assistant, watchman or the like. 

53.  Firstly, there is the evidence of Mr Balistreri which was clear:  the plaintiff’s work was improving throughout the period up to when he was retrenched.  This appears not only from his oral evidence but also the assessment which was performed in August 2000 in which he says “…we are looking forward to his continuing recovery…” and in which the plaintiff comments that his short term goal is “recovery to normal” and longer term, regional management to which Mr Balistreri responded that these “…aspirations are consistent with my view of his potential.”

54.  Secondly, the plaintiff has been working of late, albeit apparently without remuneration, in a business owned by his father.  That is an amusement game centre.  The plaintiff’s evidence on this aspect led me to believe that the role he plays in that business is quasi-managerial involving as it does, apparently, some accounting aspects, dealing with finances, liaison with banks, apparent decision-making independent of his father, periodical maintenance of machinery and other general duties.  I accept that there may be a difference between working in a family business and open-market employment but the plaintiff’s evidence, when viewed in the light of Mr Balistreri’s evidence, satisfied me that he is capable of this level of employment.

55.  Thirdly, I formed the opinion, based on my perceptions of the plaintiff in the witness box whilst he testified and my own experience of daily life, taking into account the opinions of the medical practitioners, that he is able to continue with employment at a level higher than that suggested by Dr CHUNG but not to his earlier standard.  This is an instance where seeing and hearing the plaintiff plays a real role in arriving at my overall conclusion that the plaintiff has a prospect of gainful employment:  it is, of course, difficult to articulate the many, often subtle, reasons for this overall conclusion.  I was satisfied that, as an example, if he took up employment in the field of security he would not simply be a security guard routinely patrolling an area but, with his intelligence, experience, residual skills and ability to articulate, he would be suited to a supervisory capacity.

56.  In this sense Dr YU’s observation that the plaintiff would be capable of taking up employment involving fair intellectual demand appeals to me as an accurate assessment, especially in the light of the plaintiff’s present work and Mr Balistreri’s observations.  To this extent the defendant succeeds in satisfying me that the plaintiff is capable of taking up employment in a “middle management” capacity.

57.  The necessity is then to translate that into monetary terms in a way which is rational and consistent with the evidence.   The only real evidence before me is the Quarterly Report of Wage and Payroll Statistics [page 307-1] for March 2003.  Males in supervisory roles including store/godown supervisors but excluding those in food, hospitality and finance sectors earn varying salaries, dependent upon the industry involved, with an approximate average of $13,000.00 per month. That figure seems to me to be realistic in the circumstances.  I regard the plaintiff’s estimate in his evidence of being able to obtain a position equivalent to that held by him pre-accident as misplaced for the reasons I have given and his estimation of a salary of $30,000.00 to $40,000.00 as similarly unrealistic.

The present complaints

58.  I have earlier set out in detail the injuries sustained by and treatment rendered to the plaintiff.

59.  As to his present condition, the plaintiff’s evidence is that he no longer experiences incontinence despite the expressed opinions that this would be a permanent condition.  The various medical practitioners accept that his epileptic fits will require him to take anti-convulsants for life: he has not suffered any seizures recently.

60.  It is evident from the medical reports that the anosmia as well as bizarre smell, the scarring and the changes to the plaintiff’s mental faculties and personality are permanent. 

The multipliers

61.  The plaintiff was 41 at the date of accident and is 47 now.  He testified that he would have retired at age 65 which I see no reason to doubt.  He was in a responsible, managerial position and was a man whose skills were obviously in demand.  There is no suggestion that he indulged in any especially hazardous pursuits.  He is a smoker.  He has been treated for non insulin dependent diabetes mellitus since 1995.  The claimed work multiplier of 10 is proper whilst a whole life multiplier of 16 is appropriate.

Pre-trial loss of earnings.

62.  As appears earlier I am satisfied that the plaintiff was earning $57,240.00 per month plus an guaranteed annual bonus of that amount aggregating $744,120.00 per annum.

63.   The plaintiff received a further performance-related bonus which varied annually.  For the three years, effectively, up to the date of termination of employment the bonus was $80,535.00, $36,309.00 and $12,000.00:  I see no reason to calculate the loss of this portion of income by any method other than taking an average of those figures.  That is $42,948.00 giving an annual aggregate income of $787,068.00.

64.  Despite the change of nature of his employment the plaintiff was remunerated throughout at his increased pre-accident rate until he was retrenched at which time he was paid in full for three months:  thus his loss commenced from 25^th December 2000 to date of judgment, 31^st  August 2004.  The gross loss is then (3 years + 249/365) x $787,068.00 = $2,898,135.00.

65.  From this falls to be deducted, firstly, the amount in respect of his residual earning capacity, secondly, a liability for income tax and, thirdly, a severance payment paid at the time of retrenchment: 

65.1  there is nothing before me to suggest that he would earn any bonus or amount other than the salary, which I have estimated at $13,000.00 per month.  That equates to $156,000.00 per annum or $574,422.00 for the period, resulting in a pre-tax loss reduced to $2,323,713.00; 

65.2  I accept the contentions of the defendant that, for the reasons stated, the tax liability may properly be calculated at a flat rate of 15% without taking allowances into account.  The pre-trial loss of earnings loss is thus reduced to $1,975,156.00;

65.3  the net severance payment was $105,996.00 which results in a net pre-trial loss of earnings of $1,869,160.00.

66.  At the time of his retrenchment, the plaintiff received payment in respect of accumulated annual leave.  Paid annual leave has no cash value – the plaintiff was entitled to take time off yet still to receive his full income for that period even though he is not working; he is not paid in addition to his salary.  That the plaintiff was paid out by his employer for accrued but unused leave does not change that.

Post-trial loss of earnings

67.  Gross loss of earnings at $787,068.00 per annum fall to be reduced by $156,000.00 to $631,068.00 from which tax at 15% is deducted reducing the figure to $536,408.00 per annum.  Applying the multiplier of 10 the loss amounts to $5,364,080.00.

Loss of provident fund/MPF benefits

68.  It is clear that the plaintiff became a member of a provident fund operated by his employer:  this appears from his letter of appointment [page 191] as well as the calculation of moneys due to him attached to the letter terminating his services [page 206].  Details of that fund have not been placed before me.  However, from the calculation at page 206, it appears that both employer and employee were contributing equally. 

69.  The plaintiff claims both a pre- and post-trial loss at a rate of 5% of his monthly salary, excluding any bonus.  The calculation at page 206 suggests that the contribution, throughout his period of employment, was at not less than such a rate: that percentage would be in line with that prescribed under the Mandatory Provident Fund Schemes Ordinance, Cap.485.

70.  The plaintiff’s pre-trial loss of income, exclusive of any bonus, was $57,240.00 x 12 = $686,880.00 per annum from which falls to be deducted the estimated residual income of $156,000.00 =  $530,880.00: because the plaintiff’s income would be less than the maximum income specified under the Mandatory Provident Fund Schemes Ordinance he would continue to receive the partial benefit from his (notional) employer and thus suffer a loss only of the remaining portion.  Gross salary loss to date of judgment is thus $530,880.00 x (3 years + 249/365) = $1,954,480.00 of which 5% is $97,748.00.

71.  In respect of the future loss of benefit under this head the amount is $530,880.00 x  (multiplier) 10 = $5,308,800.00 x 5% = $265,440.00.

Loss of earning capacity

72.  The plaintiff claims an amount equal to 24 months income as an award for loss of earning capacity.  I acknowledge that given the nature of the plaintiff’s injuries there is risk, particularly at his age, of loss of  future employment. 

73.  A variety of approaches is adopted in assessing this risk.  In the context of this matter there would seem to me merit in assessing the risk as a percentage of future earning capacity rather than on a “month per annum basis”.  I assess the risk to be 10% which should be met by an award of $13,000.00 x 12 x 10 = $1,560,000.00 x 10% = $156,000.00.

Fees for investment advice

74.  The  plaintiff claims an amount equal to 10% of the award for future loss of earnings and provident fund benefits to pay for advice on management of his funds.  That such an award may be made appears from CHAN Pui Ki v LEUNG On and Another [1996] 2 HKLR 401 @ 422H-423B.

75.  I am not satisfied that the plaintiff has made out this claim.  The opinion of Dr. CHUNG that the plaintiff is unable to manage his finances is essentially based on the subjective observations of the plaintiff’s wife:  those observations appear to me to be based upon criticisms of bad business deals attempted by the plaintiff as well as conduct which she perceives as profligate.

76.  The plaintiff’s evidence regarding his role in his father’s business is that he is left to some extent to attend, unsupervised, to monetary affairs.   That undermines his wife’s opinions.

77.  In my judgment this evidence on this aspect does not establish, on a balance of probabilities, that the plaintiff is unable to make simple, straightforward decisions necessary to invest any award he received.  Moreover, there is no evidence at all that he would be required to pay for advice of this nature – as opposed to those providing it being paid by the institutions with which the investments are made.  Nor is there evidence of the rate which might be charged for such advice.  I make no award under this head.

Future medical expenses and transportation

78.  There is no dispute that the plaintiff will require lifelong provision of medication in respect of anticonvulsants.  The cost of that medication in the private sector is approximately $1,000.00 per month but is free, save for prescription charges of some $50.00, in the public sector.  The plaintiff is currently obtaining the medication in the public sector and has testified that he intends to continue to do so.  The award is $50.00 x 12 x 16 = $9,600.00.

79.  Dr CHUNG recommends a course of psychiatric counselling for the plaintiff and his wife.  He recommends 24 such sessions.  The plaintiff has expressed reservations over the usefulness of such a treatment – a sign in itself, according to Dr CHUNG, of the necessity for the treatment.  Notwithstanding that, I regard this as an award that should properly be made.  The plaintiff has previously received such counselling in the public sector:  The evidence of Dr CHUNG is that in the private sector such counselling would cost and average of $2,000.00 per session as opposed to $50.00 per session in the public sector.  Obtaining a prescription for pills is vastly different from the provision of specialist psychiatric advice:  I regard the plaintiff’s claim for private provision of this service as justified.  The award is $2,000.00 x 24 = $48,000.00.

80.  An amount of $200.00 per month for travelling expenses is appropriate:  $200.00 x 12 x 16 = $38,400.00 plus a further 24 trips for the purposes of the psychiatric counselling: $200.00 x 24 = $4,800.00, in total $43,200.00.

Special damages

81.  The defendant accepts the claim for loss of property in the sum of $5,330.00.

82.  The defendant accepts the claim for past medical expenses in the sum of $50,780.00.

83.  The plaintiff claims $13,060.00 in respect of travelling expenses for his wife to visit him whilst he was in hospital.  His evidence is that she visited him daily to assist in his care and recovery.  It is not disputed that he was in hospital and the Cheshire Home from 15^th May to 9^th July 1999, a period of 54 days, and a further 5 days in August 1999.  There are no receipts produced to indicate the actual expenditure but an average of $200.00 per trip would seem to me to be reasonable, there being no reason to depart the figure used earlier in respect of future travelling expenses.  The award is $200.00 x 59 = $11,800.00.

84.  The defendant offers $10,000.00 in respect of a claim of $15,000.00 for tonic food:  no details of the claim have been provided.  The defendant’s offer is reasonable.  The  award is $10,000.00.

85.  The plaintiff claims $153,151.15 is respect of his wife’s loss of salary for the period of 6 months when she took unpaid leave to look after him.  The defendant does not dispute that she took that time off but disputed that he is liable to reimburse the full salary, contending that the true measure of the plaintiff’s damages is the reasonable cost to the plaintiff of the provision of appropriate care.   With respect, that seems to me to be the correct approach:  the fact that the plaintiff and his wife decided, understandably of course, that she, rather than an outsider, would provide that care does not render the defendant liable to pay more than the true market value of having the care provided.  The difficulty is that there is no evidence before me as to what that cost would be.  The defendant offers a sum of $7,500.00 per month for 6 months, roughly twice the monthly salary of a domestic helper, which seems to me to be reasonable.  The award is $45,000.00.  The defendant further agrees the claim for the cost of the plaintiff’s wife accompanying him on various trips in the sum of $7,625.00.  The aggregate amount is thus $52,625.00.

Pain, suffering and loss of amenities

86.  The plaintiff claimed an amount of $1,000,000.00 in respect of pain, suffering and loss of amenities of life, contending that his injuries fall into the “gross disability” category, relying on CHAN Pui Ki supra..

87.  Although in my judgment the plaintiff’s injuries are more in line with those described as “substantial injury” it is pertinent to recall the words of Litton, J, as he then was, in CHAN Pui Ki:

“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.”

88.  I accept that the plaintiff continues to suffer from potential epileptic fits which will require lifetime medication; anosmia with bizarre smells, which will be permanent; encephalomalacia;  mild impairment of his intellectual and memory function;  and some personality change as previously detailed.  He has, in addition, a degree of scarring.

89.  I was referred by the defendant to LAM Mo Bun v Hong Kong Aerosol Co Ltd and Others [2001] 1 HKLRD 540 and HUI Yiu Wing [2000] 1 HKLR B10 as indicators of awards in comparable instances.  I have also had regard to LAM Kai v NG Kwok Leung and Others [2002] 1 HKLRD 754 and, perhaps of greatest assistance, Lau Chung Nam v AU Wai Man [2004] 1 HKLRD 57 and the authorities there collected.

90.  In my judgment the appropriate award is one of $800,000.00.

91.  In summary I assess the damages suffered by the plaintiff as follows:

Pre-trial loss of earnings                                $1,869,160.00

Post-trial loss of earnings                                5,364,080.00

Pre-trial loss of provident fund benefit                 97,740.00

Post-trial loss of provident fund benefit              265,440.00

Loss of earning capacity                                    156,000.00

Future medical and travelling expenses               100,800.00

Special damages                                               125,735.00

PSLA                                                               800,000.00

                                                                   $8,778,955.00

92.  These amounts are each subject to a deduction of 20% in accordance with the earlier judgment in respect of liability, resulting in judgment of $7,023,164.00 in favour of the plaintiff made up as follows:

Pre-trial loss of earnings                                $1,495,328.00

Post-trial loss of earnings                                4,291,264.00

Pre-trial loss of provident fund benefit                 78,192.00

Post-trial loss of provident fund benefit              212,352.00

Loss of earning capacity                                    124,800.00

Future medical and travelling expenses                 80,640.00

Special damages                                               100,588.00

PSLA                                                               640,000.00

plus interest on special damages at 4% per annum from 15^th May 1999 to date of judgement;  on pre-trial loss of earnings and loss of provident fund benefit from 25^th December 2000 to date of judgement;  and on PSLA at 2% per annum from date of writ to date of judgment.

93.  Costs of the plaintiff, as taxed or agreed, to be paid by the defendant.  The costs order shall be an order nisi with liberty to restore within 14 days.