WONG SUK HA v. LI TSUN WING

1995, No.P.I. 770

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(H.C.A. No. A2949/1990)

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J U D G M E N T

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1. This claim for damages for personal injuries arises out of an incident that occurred on 7 July 1987. That morning, the Plaintiff who was a traffic warden, was assaulted by the Defendant who at the time was the driver of a lorry. She was struck on the head and fell backwards, injuring her back on a hard object. She felt pain in her back and she also noticed some numbness in her left leg apart from the head injury. She was admitted to Queen Elizabeth Hospital.

2. In September 1987, the Defendant was convicted of assault. On 4 June 1991, the Statement of Claim was served. The Defendant never served a defence and an interlocutory judgment was entered against him in July 1991. In April 1995, the Plaintiff applied to amend the Statement of Claim and the Defendant was given a further opportunity to file a defence, failing which the interlocutory judgment was to stand. No defence was filed. Accordingly, the only question that is before me today is the quantum of damages.

3. At previous hearings, the Defendant who appeared in person was advised to seek legal representation. He did apply for legal aid but his application was refused and he acts in person.

The Plaintiff's injuries

4. After the Plaintiff was taken to Queen Elizabeth Hospital, she was seen by the Neurosurgical Unit. An x-ray taken at the time showed spondylolisthesis of the 5th lumbar vertebra on the first sacral segment with 5mm forward slipping of the L-5 vertebral body on top of S-1. There was also a fracture or linear defect in the pars inter-articular of the 5th lumbar vertebra. However, the Plaintiff was told by the doctor that no abnormality was found either in her skull or her lower back. She was discharged the following day and given 2 weeks' sick leave.

5. In November 1987, several months after the incident, the Plaintiff was still experiencing back pain with occasional spasms. In January 1988, the Plaintiff was transferred to work at the Airport. The pain got progressively worse and in March 1988 she was referred to the Accident Emergency Department of Queen Elizabeth Hospital for low back pain and left sciatica. She was unable to get out of bed and felt severe numbness and weakness of the left leg, as if the left leg was paralysed. She was eventually referred to a specialist.

6. In May 1988, she was seen by the Orthopaedic Unit of Queen Elizabeth Hospital and underwent many sessions of physiotherapy upon the doctor's recommendation. She was also given a surgical corset. The symptoms persisted and she could only walk with pain. In August 1988, her x-ray was traced and "a radiolucent line was noted in the pars inter-articularis of L5, suggestive of spondylolysis.....". By this time, the Plaintiff could not turn in bed and felt considerable pain after standing for 5 or 10 minutes. She was also unable to lie on her left buttock. In October, she was transferred to Kowloon Hospital and a month later, she was re-transferred to Queen Elizabeth Hospital. In late November 1988, she was discharged and embarked on another bout of physiotherapy sessions. By December, it was noted that conservative treatment of her persistent low back pain had failed. She was re-admitted for a day in late December for a facet joint injection of her lumbar spine. Thereafter there was regular follow-up in the Out Patients Clinic.

7. It is the Plaintiff's evidence that about this time, surgery was mentioned. As she came to know of two cases where surgery had not been successful, she decided to try Chinese remedies first. She had a series of bone-setter treatments and acupuncture in March and April 1989. There was no noticeable improvement. Her symptoms persisted which affected her daily living and an operation was advised. In May 1989, she was admitted to Queen Elizabeth Hospital for an operation for the decompression of the left L-5 nerve root and fusion of the L5-S1 posterially. She underwent an operation and was discharged from hospital at the end of July 1989. She had to wear a lumbro-sacral jacket and a pressure garment, as well as having to return to the Out-Patients Department to have physiotherapy three times a week. For about two months after her discharge, the Plaintiff had to employ a part-time servant to assist her.

8. Clinical notes show that although there was good initial relief of most of the symptoms and her backache, a month after surgery, she had increased pain. Two months later, the Plaintiff was still complaining of pain in her left heel. The Plaintiff had to wear the lumbro-sacral jacket as well as pressure garments extending onto both thighs. She continued to have physiotherapy three times a week. In October 1989, she experienced severe pain and was admitted to hospital. Her follow-up treatments required a great deal of travelling and things began to go wrong. On one occasion, she had a bumpy ride and could not get up again. In fact, the Plaintiff had to stay in hospital for 9 months, from October 1989 until June 1990. When she was discharged, she needed supports for walking. She continued to have physiotherapy and hydrotherapy but was unable to go back to work until the end of January 1991 when she was assigned to do clerical duties. Even so, she could did not sit longer than for an hour or two.

9. Medical reports were obtained in the early part of 1991 relating to the Plaintiff's condition :

(a) In February, Dr Mao reported that the Plaintiff could only stand for a half hour or so before she had to move about and she could only walk for about the same length of time. He estimated her loss of earning capacity to be at 15% and impairment of the whole person at 12%. He opined that she should continue to wear her lumbral-sacral jacket and should not carry weights or flex her body forward whilst doing so.

(b) In March, Dr David Lee reported that the Plaintiff complained of numbness and discomfort of the left leg, a mild low back pain which became worse at night and stiffness. He stated that the assault was definitely a trigger factor for her low back pain and left sciatica. However, residual spondylolisthesis would gradually improve to a certain extent with the passage of time. He assessed permanent disability at 10% and loss of earning capacity also at 10%. He also expressed the view that her lumbar condition might affect her promotion in the future since she was only able to do light indoor duties.

10. In September 1991, the Plaintiff was re-admitted into hospital and her sick leave was extended to 29 November 1991. 1992 was relatively trouble-free in that she only had 7 days of sick leave. In 1993, the Plaintiff was on sick leave for several months and by the end of 1993, she was told that there was nothing further that could be done for her and medical treatment stopped.

11. On 28 April 1994, the Plaintiff was retired on medical grounds by a Medical Board, having been on sick leave for about 983 days as a result of the incident, of which approximately 141/2 months in the aggregate were spent in hospital : she was on sick leave for the second half of 1988, the greater part of 1989, virtually the whole of 1990 and for part of 1991. She received a commuted pension gratuity of $390,096 and a reduced 50% annual pension of $27,864 after 12 years and 8 months' service.

12. Since retiring from government service, the Plaintiff has been and still is a CTI distributor earning small sums for introductions to telephone services. In the second half of 1994, she attended language courses in the United States to improve her qualifications. As at December 1994, the Plaintiff still experienced numbness and long sitting causes her backache with marked spasms of the sacral spinalis muscle. She has limited movement and can do clerical work provided there is no heavy lifting or bending. In January 1995, she attended a shipping document course but was unable to complete it because of back pain. In February 1995, she worked in a kindergarten but was unable to continue because of back pain resulting from having to squat. From October to December in 1995, she worked as a temporary computer clerk at the Robert Black College of Education.

The extent of damage

13. It is a generally accepted principle of law that once a kind of damage, e.g. physical injury to a person could have been foreseen in a general way, the defendant is liable for the full extent of the harm, even though the extent was unforeseeable. "... If the wrong is established the wrong doer must take the victim as he finds him." See Bourhill v. Young [1943] AC 92, per Lord Wright at pages 109-110. And as stated by McKinnon L.J. in Owens v. Liverpool Corporation [1939] 1 KB 394, 400-401 :

"But one who is guilty of negligence to another must put up with idiosyncrasies of his victim that increase the likelihood or extent of damage to him : it is no answer to a claim for a fractured skull that its owner had an unusually fragile one."

See generally Charlesworth on Negligence, 8th Edn. at paras.4-27 to 4-34.

14. In the present case, the Plaintiff had an underlying asymptomatic condition. The assault which caused her to fall triggered an otherwise dormant condition. Did the wrong diagnosis of the x-ray taken when the incident occurred break the chain of causation? The law on this point is clear : if the wrong diagnosis did not break the chain of causation, that is to say, if the injuries or disabilities would have ensued irrespective of the wrong diagnosis, then the Defendant remains liable. In Robinson v. Post Office [1974] 1 WLR 1176, the plaintiff sustained a minor wound caused by the defendant's negligence but as a result of his receiving an anti-tetanus injection from his doctor, he suffered the rare complication of encephalitis with serious consequences. The Court of Appeal dismissed the defendant's appeal and held that the doctor's negligence in not administering a test dose was not a novus actus interveniens because it had no causative effect : the encephalitis would not have been prevented. The defendants were accordingly liable for all the plaintiff's disabilities.

15. In the present case, had the correct diagnosis been made of the x-ray in July 1987, would the injuries sustained by the Plaintiff have been prevented?

16. The medical evidence adduced establishes that those injuries would not have been prevented. As noted above, Dr Lee had opined in March 1991 that the assault was definitely a trigger factor for her low back pain and left sciatica. In April 1991, Mr Harral Thompson, an English orthopaedic specialist rendered advice based on Dr Lee's report of the Plaintiff's condition. Although he criticised the failure to offer the Plaintiff treatment for her back pain or advise any subsequent follow-up, in his opinion :

"The condition Madam Wong had in her lower lumbar spine at the time of the assault on her on 7 July 1987 was constitutional in origin, the injury to her back having served to precipitate such symptoms as she then suffered and still suffers. On the balance of probabilities, had she not suffered injury to her back on 7 July 1987, it is likely that she would have remained symptom free for some considerable time, certainly years."

No contrary medical evidence has been adduced. Accordingly, I find that the Defendant is liable for all the disabilities that have ensued following the incident.

Special damages

17. Evidence was adduced by the Plaintiff to establish the following amounts :

	$
(a) bone-setter, 24 treatments	3,190.00
(b) acupuncture	690.00
(c) travelling expenses	30,897.00
(d) swimming pool fees	1,750.00
(e) part-time amah	1,755.00
(f) tonic food	4,000.00
(g) re-training courses	22,614.50
(h) pre-trial loss of earning	214,260.32

18. As to (h) above, at the time of the accident, the Plaintiff was earning $4,565 per month as a traffic warden. If she was in the same job today, she would be earning $14,055 per month. When she left in April 1994, her salary was $12,760 per month. The pre-trial loss of earnings claimed relates to a period of only 23 months because until April 1994, the Plaintiff was receiving full pay. Taking the median between what the Plaintiff was earning at the date she retired and what she would be earning now had she remained in the force, the monthly rate is $13,407.50 and over the 23 month period, she would have earned $308,372.50.

19. During the period in question, she received a pension of $2,322 per month. In addition, the Plaintiff had various temporary jobs during this period and her earnings were derived from the following sources :

(i) CTI	$16,982.80
(ii) Allowance for attending a shipping documentation course	$1,649.00
(iii) Kindergarten teacher	$3,196.00
(iv) Computer clerk	$18,878.38

Taking into account her monthly pension, her total income during this period totalled $94,112.18. Her pre-trial loss of earnings is thus $214,260.32.

20. The eight items of special damages accordingly total $279,156.82.

Interest on special damages

21. Mr Barretto submitted that interest is payable on that amount at half the judgment rate of 11.75% from the date of the incident or 104 months. Whilst the rate sought is the conventional rate, I cannot accept that interest ought to be payable over a period of 104 months. The bulk of the loss is attributable to the loss of earnings and re-training which loss only began to accrue as from May 1994. Of course, the rationale behind adopting a rate that is half the judgment rate is a rough and ready approximation of the appropriate interest given that the components of special damages normally accrue from a number of varying dates.

22. The present case is exceptional in that the bulk of the special damages (in fact, over 80%) only began to accrue from May 1994. Whilst I do not advocate a precise interest calculation for each item, the facts have broadly to justify both the rate and the period to achieve an overall result that is fair. The very special facts of the present case would justify a rate of interest that is one-third rather than one-half of the judgment rate of 11.75% for the period of 104 months. This sum appears to me to be appropriate : it is not less than the aggregate of the full judgment rate of 11.75% for the 23 month period, for pre-trial loss of earnings and re-training costs, and for the 104 month period, for the balance. In the circumstances, I will order that interest be payable on special damages at one-third the judgment rate of 11.75% for a 104 month period. The interest payable is accordingly $94,758.23.

Post-trial loss of earnings

23. The Plaintiff currently receives $2,322 per month by way of pension and approximately $2,500 from CTI, totalling $4,822 per month. Had she remained in her employment as traffic warden, she would currently be earning $14,055 per month. Thus, her monthly loss is $9,233. I accept that the Plaintiff is suffering a monthly loss of earnings of $9,233, which loss is continuing.

Multiplier

24. The Plaintiff is aged 36. Mr Barretto submitted that the appropriate multiplier is 15.6, following the decision in Chan Pui Ki v. Leung On [1995] HKLY Case 64. Since that landmark decision, actuarial tables have been compiled by Watson Wyatt for Hong Kong. This is the Hong Kong version of the Ogden Tables which are used in England. Assuming a working life up to the age of 55 and applying an interest rate of 1.2% which was the rate adopted in the Chan Pui Ki case, the multiplier for a female aged 36 is 16.8. A discount has to be applied to that multiplier to reflect the vicissitudes of life. Counsel for the Plaintiff invited the Court to adopt the adjustments from the Ogden Tables, a simplified version of which is produced in Watson Wyatt's Actuarial Tables ("the Wyatt Tables") at page 5. For a female within the age group of 35 to 39, the appropriate discount is 7%. Applying a discount of 7% to the multiplier of 16.8, the resultant multiplier is 15.6.

25. Counsel for the Plaintiff was at pains to point out that in the present case no economist or actuary has been called largely because of the circumstances of the case : the costs involved would be significant whilst full recovery against this Defendant is likely to be problematic. As no expert evidence has been adduced, he felt unable to advocate a complete following of Chan Pui Ki. Nonetheless, he submitted that the expert evidence as recorded in Chan Pui Ki represents sound common sense and forms the basis for the Court to award a multiplier on a most generous basis.

26. Counsel for the Plaintiff also submitted that if the conventional approach were adopted, the multiplier would fall within a similar range, that is to say, between 14 to 16. He referred to Ng Chun Yung v. Wong Chiu Fai [1994] HKLY 491 (multiplier of 14, where the plaintiff was a male aged 34 at the date of the trial and had sustained multiple injuries) and Lo Wai Keung v. King's Light Industrial Limited [1992] HKLJ 230 (multiplier of 16, where the plaintiff was aged 31 at the date of assessment). As those cases are not exactly comparable, for one thing the Plaintiff is a little older than the plaintiffs in those cases, adopting the conventional approach, the multiplier in the present case would fall into the 13 to 14 range.

27. The question therefore is whether in the absence of expert evidence, reliance can be placed on the Wyatt Tables. The Wyatt Tables reflect the general approach adopted in the Chan Pui Ki case. Where, as here, no evidence has been adduced by the Defendant to show that the discount rate adopted in Chan Pui Ki is wrong, the Wyatt Tables remain a valid point of reference. For this reason, I accept that the appropriate multiplier in this case is 15.6. Accordingly, the post-trial loss of earnings amounts to $1,728,417.60.

Loss of pension/gratuity

28. The Plaintiff has already received $390,096 by way of commuted pension. Calculated at current earnings, which provides for accelerated receipt, but assuming retirement at 55, the loss would be $704,582. The difference which reflects a reduced pension or gratuity is $314,486. I hold that this amount is recoverable.

Pain, suffering and loss of amenities

29. Counsel for the Plaintiff submitted that the injuries suffered by the Plaintiff fall within the top end of the serious injury category or the lower end of the substantial injury category as set out in Chun Yat Nam v. A.G. [1995] 1 HKC 218 and sought an award of $400,000 under this head. It should be mentioned that for this aspect of his claim, he did not place reliance on Chan Pui Ki where it was suggested that the amount of damages to be awarded for the serious injury category should be revised to range from $400,000 to $540,000.

30. The figure for the top end of the serious injury category in Chun Yat Nam or the lower end of the next category is $335,000. In Chan Pui Ki, there is a helpful table (at page 76 of the judgment), which updates the figures for inflation up till October 1995. It is now another 6 months since judgment in the Chan Pui Ki case was delivered. Updated to the end of the first quarter of 1996, the top end of the serious injury category would, in my view, be in the region of $380,000.

31. It is submitted that the Plaintiff continues to suffer pain and her ordinary activities of living are much restricted so that her enjoyment of life has been permanently marred. She has spent some 14½ months in hospital with sick leave amounting to 983 days which has resulted in her losing her chosen career as well as leaving her somewhat disabled. Viewing the circumstances as a whole, this is indeed a case that straddles the two categories discussed. In the circumstances, it would be appropriate to award $380,000 for pain, suffering and loss of amenities.

32. Interest on pain, suffering and loss of amenities will be at 2% per annum from the date of the issuance of the writ, i.e. 8 May 1990 to judgment and thereafter at judgment rate until payment.

33. I also make an order nisi for costs of the action to the Plaintiff, such costs to be taxed in accordance with the Legal Aid Regulations.

(Doreen Le Pichon)

Judge of the High Court