SHE SZE NGA v. YEUNG YING KIT

CACV 106/2018

[2020] HKCA 530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 106 OF 2018

(ON APPEAL FROM HCPI NO 993 OF 2015)

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REASONS FOR JUDGMENT

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Hon Chu JA giving the Reasons for Judgment of the Court of Appeal:

1.  This is the defendant’s appeal against the judgment given by Master Simon Lo (“the Master”) on 20 March 2018 awarding to the plaintiff $607,473 as damages for personal injuries she suffered as a result of a traffic accident, together with interest and costs.  

2.  At the conclusion of the hearing, we dismissed the appeal and awarded costs of the appeal to the plaintiff to be taxed if not agreed.  Our reasons appear below.

The accident

3.  These proceedings arose out of a traffic accident that happened on 10 October 2012.  The plaintiff was the front seat passenger of her own private car driven by her then boyfriend (whom she married in January 2013 in Canada) when the lorry driven by the defendant’s lorry hit her car from behind. 

The plaintiff’s injuries and treatments

4.  At the time of the accident, the plaintiff was aged 34.  She received education up to Form 5 and was a piano teacher by occupation. 

5.  After the accident, the plaintiff lost consciousness for a brief moment.  She was admitted to the Prince of Wales Hospital where she was hospitalized until 12 October 2012.  Clinical diagnosis was neck sprain injury.  She was treated by analgesics, soft neck collar and physiotherapy before her discharge. 

6.  It is common ground that the plaintiff sustained neck and left trapezius injuries as a result of the accident.  On 13 October 2012, one day after her discharge from the hospital, the plaintiff consulted a private general practitioner Dr. Pang Kin Wai (“Dr Pang”).  She continued to do so until 19 April 2013.  She also received private physiotherapy for 5 months.

7.  Between 21 December 2012 and 20 June 2013, the plaintiff received occupational therapy in Alice Ho Miu Ling Nethersole Hospital (“AHNH”).  She also consulted an acupuncturist about twice a week for two to three years to tackle her neck pain.  She ceased the treatment after the death of the acupuncturist.

8.  Magnetic Resonance Imaging (MRI) of the cervical spine done on 16 November 2013 showed minor disc bulges at C4/5, C5/6, C6/7 levels with no cord or nerve root compression.

9.  As a result of the accident, the plaintiff suffered from flashbacks and nightmares resulting in insomnia, persistent low mood and anxiety as well as avoidance behaviour, especially avoiding travelling by car.  In May 2013, she was referred to the psychiatric outpatient unit of AHNH.  She was diagnosed to have post-traumatic stress disorder (PTSD).  Her last consultation was at the end of 2015.  The plaintiff also consulted a clinical psychologist of AHNH between August 2013 and February 2014.    

10.  Between 10 October 2012 and 9 June 2014, the plaintiff was granted 516 days of sick leave intermittently.

HCPI 993 of 2015

11.  On 18 September 2015, the plaintiff commenced the action below claiming damages for personal injuries occasioned by the accident.

12.  The defendant does not dispute liability.  On 9 March 2016, interlocutory judgment on liability was entered by consent for the plaintiff with damages to be assessed. 

The medical expert evidence

13.  The assessment of damages took place before the Master.  In addition to the oral evidence of the plaintiff, the joint orthopaedic and psychiatric expert reports prepared by the parties’ respective experts were also adduced in evidence.  The doctors and experts were not called. 

14.  The joint orthopaedic expert report dated 17 April 2015

14.1  The plaintiff’s expert, Dr Peter Tio (“Dr Tio”), and the defendant’s expert, Dr Kwok Hau Yan (“Dr Kwok”), were in agreement that the plaintiff had residual neck pain, left trapezius muscles and tenderness over left acromioclavicular joint but with good range of movement, and MRI showed pre-existing neck degeneration with no nerve compression identified.

14.2  In respect of the prognosis, Dr Tio considered the plaintiff had a fair prognosis with on and off pain over the neck and left upper limb regions though the severity should be gradually reduced.  Dr Kwok’s opinion was that the prognosis was good and the residual symptoms should not significantly limit her physical function after proper treatment and rehabilitation.

14.3  Both experts considered the plaintiff could return to her previous job as a piano teacher.  Dr Tio was of the further view that the plaintiff should not keep her neck or left upper limb in a stationary position for prolonged period when giving piano lessons, and should take intermittent breaks of 15 minutes after each 2 hours’ work.  Dr Kwok also acknowledged there could be residual pain and left upper limb discomfort, but he did not think it was to such a degree as to prevent the plaintiff from returning to her previous job or to affect her daily living.

14.4  Both experts agreed there would be loss of earning capacity, with Dr Tio assessed the plaintiff to suffer 3% whole person impairment and loss of earning capacity while Dr. Kwok assessed the same at 0.5 to 1%.  

14.5  The experts differed in their opinion on the duration of the sick leave.  While Dr Tio regarded the sick leave granted (516 days) was reasonable and appropriate considering the severity of the injury and the physical condition of the plaintiff, Dr. Kwok opined that six to nine months would be appropriate for the plaintiff’s orthopaedic condition and sick leave beyond that would require other justification.

15.  The joint psychiatric report dated 14 June 2016

15.1  The plaintiff’s expert, Dr Chow Lok Yee (“Dr Chow”), and the defendant’s expert, Dr Chung See Yuen (“Dr Chung”), conducted a joint examination on the plaintiff.

15.2  They both diagnosed the plaintiff to have suffered from PTSD and adjustment disorder with depressive mood as a result of the Accident.  The degree of impairment was agreed to be mild.

15.3  Both experts considered that for the plaintiff’s psychiatric condition, sick leave for three months from the date of the first session of psychiatric treatment would be appropriate. 

15.4  The experts also agreed that the psychiatric problems would not prevent the plaintiff from resuming her pre-accident job as a piano teacher.  Dr Chow, however, opined that the plaintiff suffered impaired efficiency while Dr Chung did not consider the psychiatric problems would impair the work capacity.

15.5  The experts also differed on the need for further psychiatric treatment.  Dr Chung did not share Dr Chow’s opinion that the plaintiff should continue to receive psychiatric treatment for six more months in order to consolidate her improvement.

The Master’s assessment

16.  The Master did not find the plaintiff’s evidence credible.[1] He found the plaintiff to have exaggerated her injuries.  He considered the problems complained of by the plaintiff, especially her bilateral hand numbness and left forearm pain, were not supported by the government medical records and reports as well as those of Dr Pang.  He was also critical of the plaintiff’s failure to inform the medical experts of a neck injury that was occasioned by an earlier accident in September 2012, as a result of which she was hospitalized for two days.  The Master accepted the two joint medical expert reports, and indicated he preferred Dr Kwok’s opinions where they differed from those of Dr Tio.

17.  The Master held that the plaintiff had a mild whiplash injury with sprain over her neck and left shoulder.[2] He also found the plaintiff to have suffered from PTSD and mild adjustment disorder with depressive mood.  The Master further found that the plaintiff’s psychiatric symptoms had improved significantly and no longer affected her daily life and work.[3] All the medical experts agreed, and the Master found, that the plaintiff could resume her pre-accident work as a piano teacher.[4]

18.  On PSLA, the Master awarded HK$300,000, after considering the plaintiff’s injuries and eight of the authorities cited by the parties that were decided between 2002 and 2012 in which the award for PSLA ranged from HK$200,000 to HK$350,000.[5]

19.  On pre-trial loss of earnings, the Master considered he was not bound by the sick leave certificates issued by the treating doctors.  He found 12 months to be a reasonable sick leave period having regard to the plaintiff’s orthopaedic and psychiatric conditions.[6]  He discounted the sick leave period by half a month to take into account the plaintiff’s wedding and honeymoon trip in Canada, during which she would not be earning any income.[7]  The Master accepted HK$20,503 as the plaintiff’s pre-accident monthly income, and found the plaintiff to have earned an income of HK$29,600.[8]  He accordingly awarded pre-trial loss of earnings at HK$206,184.50 (i.e. HK$20,503 x 11.5 months – HK$29,600).[9]

20.  No award for post-trial loss of earnings was made as the plaintiff was able to resume her pre-accident job as a piano teacher. 

21.  The Master considered that although the plaintiff could resume working as a piano teacher, her earning capacity would be slightly affected having regard to the opinions of the orthopaedic and psychiatric experts, which suggested the plaintiff would have mild degree of whole person impairment.  The Master awarded a sum of HK$40,000 as loss of earning capacity.[10]

22.  The total amount of damages awarded by the Master, including special damages of HK$61,288.50,[11] was HK$607,473.[12]

The grounds of appeal

23.  The defendant advanced five grounds of appeal as follows (respectively “Ground (1)” to “Ground (5)”):

(1)  Having found that the plaintiff had exaggerated her injuries in respect of her bilateral hand numbness and her left forearm pain and that her injuries were very mild, and having preferred the expert evidence of Dr Kwok who opined that reasonable sick leave should be in the range of six to nine months, the Master erred in concluding that the reasonable period of sick leave be 12 months when there was no evidence in support.

(2)  If the Master added the three months of sick leave as opined by the parties’ psychiatric experts on top of the nine months of sick leave opined by Dr. Kwok, the Master demonstrably misapprehended the evidence of the psychiatric experts who expressly stated that the three months of sick leave commenced on the date of the first session of psychiatric treatment, which was 9 May 2013 and expired in 8 August 2013, which was ten months after the accident.

(3)  By reason of the error stated above, the Master erred in computing the pre-trial loss of earnings for a period of 11.5 months.  He should have adopted 9.5 months of sick leave and the award should be: (HK$20,503 x 9.5) – (HK$4,800 + HK$4,000 + HK$4,000 + HK$3,200 + HK$4,400) = HK$174,379.

(4)  Having preferred the opinion of Dr Kwok, who considered the plaintiff’s residual pain and left upper limb discomfort was not of a degree as to affect the occupation of the plaintiff, the Master erred in awarding HK$40,000 for loss of earning capacity. 

(5)  Having found that the plaintiff had exaggerated her orthopaedic injuries which were mild and by accepting the PTSD and adjustment disorder with depressive mood was also mild for which the symptoms had improved greatly that no longer affect her daily life, the award of HK$300,000 for PSLA was too high and erroneous. The appropriate amount should be no more than HK$100,000.  The cases relied on by the Master either involved structural injuries, such as fracture, or alternatively, additional injuries.

24.  The plaintiff had filed a respondent’s notice to contend that the Master’s assessment should be affirmed on the following additional grounds:

(1)  The Master was not bound to adopt the exact period of sick leave granted by the treating doctors and/or opined by the medical experts.

(2)  While the plaintiff did not pursue an award for post-trial loss of earnings at the trial, it was both appropriate and incumbent upon the Master to consider the medical evidence and opinions and the plaintiff’s conditions, and to make an award of loss of earning capacity.

(3)  The Master’s PSLA award was appropriate having regard to the circumstances of the plaintiff’s case.  The amount of not exceeding $100,000 advanced by the defendant at trial and in this appeal was too low and not based on the particular circumstances of the plaintiff and/or the relevant authorities.   

Our reasons for judgment

25.  Sick leave period and pre-trial loss of earning

25.1  The first three grounds of appeal relate to the Master’s finding that 12 months was an appropriate period of sick leave.  Mr. Sakhrani, who appeared for the defendant, submitted that in assessing the appropriate period of sick leave, the Master had to be guided by the medical evidence.  Having preferred the opinion of Dr Kwok to that of Dr Tio and concluded that the orthopaedic and psychiatric injuries and conditions were mild, and given there was no reference in the medical evidence to a sick leave period of up to 12 months, it was not open to the Master to add extra months of sick leave when there was no evidential basis for doing so.  

25.2  However, as submitted by Ms Cheung, who appeared for the plaintiff, the court is not bound by the opinions expressed by the experts in determining the appropriate period of sick leave.  Expert opinion serves to assist the court in understanding a professional area in order to provide the court with a complete knowledge on the fact it is judging, and the court, after considering all the evidence in the case, is entitled to make its own findings and conclusions.  In the present case, notwithstanding that Dr Kwok considered six to nine months to be an appropriate period of sick leave and the Master had indicated he preferred Dr Kwok’s opinions to those of Dr Tio, it did not follow that the Master must adopt Dr Kwok’s opinion on the sick leave period.    

25.3  Importantly, apart from Dr Kwok’s opinion, the evidence was that the plaintiff had, as a matter of fact, been granted a total of 516 days (approximately 17 months) of sick leave intermittently.  It is thus open to the Master to come to the view that 12 months was an appropriate period for sick leave, after considering all the evidence in the case, including the opinions of the orthopaedic and psychiatric experts and the plaintiff’s injuries and conditions.  It is also not correct to contend that there was no evidential basis for the Master’s finding on the duration of the sick leave.  Further, ground (2) which suggests that it was due to misapprehension of the psychiatric experts’ opinion on the sick leave that the Master added three months to the six to nine months’ sick leave period opined by Dr Kwok and came up with a 12 months’ sick leave period is speculative.          

25.4  Mr. Sakhrani also complained in his oral submission that the Master failed to give reasons for his finding of 12 months’ sick leave.  This was not in the grounds of appeal.  In any event, while the Master’s reasoning was brief, we are of the view that he had given sufficient indication of what he had considered in arriving at the finding.  

25.5  For the above reasons, grounds (1) to (3) failed.

26.  Loss of earning capacity  

26.1  The 4^th ground of appeal relates to the award of loss of earning capacity.  Mr Sakhrani initially took the point that the plaintiff’s counsel had indicated in her written closing submission that the plaintiff was not seeking any future loss of earnings or loss of earning capacity.  Ms Cheung, who also appeared for the plaintiff before the Master, explained that what she stated in the written closing submission was a mistake, which she had corrected and informed the Master at the hearing on 23 February 2018.[13] At the appeal hearing, Mr Sakhrani did not press this point further.

26.2  The defendant’s arguments under this ground were threefold.  First, it was said that the Master had accepted Dr Kwok’s opinion that the plaintiff could resume work as a piano teacher, and there was no finding fact that she suffered any residual loss of efficiency and/or effectiveness in her work.  There was also no award for partial loss of earnings after the expiry of reasonable sick leave.  Second, it was argued that the plaintiff had failed to show there was a real risk she would suffer disadvantage in the labour market.  Third, it was submitted that the Master confused loss of earning capacity with the notion of whole person impairment.  There was no evidence that the mild degree of whole person impairment mentioned by the orthopaedic experts would affect the plaintiff’s earning capacity. 

26.3  On the first argument, both orthopaedic experts agreed the plaintiff had residual pain and tenderness.  The Master also found the plaintiff to have mild residual pain over her neck and left shoulder.[14] Dr Tio additionally pointed out that the plaintiff should not keep her neck and shoulder in a stationary position for a prolonged period and that she should take short break after every two hours.  As for Dr Kwok, although he considered the plaintiff could resume her pre-accident work as a piano teacher, he accepted there could be residual pain and left upper limb discomfort.  In our view, there is no real disagreement between the two experts on the plaintiff’s orthopaedic condition. 

26.4  In light of the expert evidence and the Master’s finding on the plaintiff’s orthopaedic condition, and having regard to the plaintiff’s work as a piano teacher, it must be open to the Master to form the view that the plaintiff’s earning capacity is slightly affected as a result of her orthopaedic condition.[15]  The fact that no award for loss of earning was made beyond the sick leave period is immaterial. It does not follow that there cannot be an award for loss of earning capacity, which in essence is to compensate for the plaintiff’s loss of competitive advantage in the open labour market: Cheung Lee Man v Chan Wai Wing, CACV 179/2006, 11 January 2007, at [16]. 

26.5  On the second argument, we do not agree that the plaintiff failed to establish a real risk that she would be disadvantaged in the labour market.  It is the Plaintiff’s evidence that, after the accident, her left upper arm was less agile, as a result of which she could no longer master difficult music pieces and teach students whose standard is above grade 5.  She further stated that some of her students had turned to other teachers as they found her standard was inadequate.[16] 

26.6  As to the third argument, it stems from [46] of the judgment where the Master said:

“Mr Sakhrani for the defendant submitted that there is no basis for the claim under this head. However, I consider that although the plaintiff is able to resume working as a piano teacher, there are medical opinions from the orthopaedic and psychiatric experts to suggest that the plaintiff would have some mild degree of whole person impairment. In my view, it will slightly affect her earning capacity. I think that the appropriate award for loss of earning capacity in this case should be $40,000.”

26.7  We accept that the Master’s reference to “whole person impairment” was inappropriate.  We also agree that it would have been preferable if the Master had elaborated on why he considered the plaintiff was at a disadvantage in the labour market.  We are, however, of the view that on the evidence before the Master, an award for loss of earning capacity was justified.  As a piano teacher, pain and tenderness in the neck and shoulder would clearly affect her effectiveness.

26.8  We had, for the above reasons, rejected ground (4) and upheld the award for loss of earning capacity.

27.  The quantum for PSLA

27.1  The 5^th ground relates to the amount of the PSLA award.  The defendant’s argument was that the award of $300,000 was outside the reasonable range and could not be reconciled with the Master’s findings that (i) the plaintiff had exaggerated her physical injuries; (ii) she had received appropriate treatments and suffered no complications; (iii) she was able to celebrate her wedding and travel to Canada for honeymoon within two months of the accident; (iv) she had misled the treating doctors into giving her a lengthy period of sick leave; (v) the parties’s medical experts opined that the plaintiff’s injuries were mild, her condition has significantly improved and the injuries no longer impacted her daily life and work; (vi) she was not awarded any partial loss of earnings after the expiry of sick leave and (vii) she had abandoned her claim on loss of earning capacity.  It was also argued that the Master should have followed Wong Yan Lam v Lam Wing Kei unreported, HCPI 483/2009 in which $200,000 was awarded under PSLA for multiple contusion injuries sustained in two accidents, wherein the treating mental health experts had diagnosed PTSD and adjustment disorder. 

27.2  We note that the Master, when assessing the damages for PSLA, had considered a list of eight cases as set out in [30] of the Assessment and the awards of PSLA in the authorities were made in the region from HK$200,000 to HK$350,000.  We have reviewed the eight cases and are of the view that the injuries suffered by the plaintiffs therein were comparable to our present case.  Save for Wong Yan Lam (supra), the award for PSLA in the other seven cases are in the range of HK$280,000 to HK$350,000.  Further, the authorities are to serve as a reference of a range of award for the court and sometimes their values are limited as no two cases are identical, see: Wong Yan Lam (supra) at [16].  The court needs to consider all the circumstances of the whole case and all the evidence before it when making the assessment.

28.  In the circumstances, we are of the view that the award of HK$300,000 is within the reasonable range given the plaintiff’s injuries and state of recovery. 

29.  Mr Sakhrani’s contention that Master’s assessment did not reconcile with his fact findings were misconceived.  The Master clearly assessed PSLA based on the fact that the plaintiff only suffered a mild whiplash injury with sprain over her neck and shoulder with mild residual pain over the said area. Further, his findings on the credibility of the plaintiff and orthopaedic and psychiatric conditions of the plaintiff had fully reflected on his reduction of 516 days’ sick leave granted by the treating doctor to 11.5 months and his rejection of partial pre-trial loss of earnings after the expiry of sick leave.  They also provided a reason why the Master preferred Dr Kwok to Dr Tio as the later relied and accepted too much on the plaintiff’s subjective symptoms.

30.  In light of the above, we are not satisfied that Mr Sakhrani raised any valid argument to challenge the Master’s assessment.  We are of the view that the sum of HK$300,000 is within the reasonable range of the award of PSLA given the plaintiff’s injuries and state of recovery in this case.  Ground 5 is failed.

Conclusion

31.  For the above reasons, we had dismissed the defendant’s appeal with costs to the plaintiff, including the costs of the summons taken out by the defendant on 20 April 2018, to be taxed if not agreed.