CHAN KA LIM v. CHOW WAI KIN

HCPI 727/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 727 OF 2004

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J U D G M E N T

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Introduction

1.  The plaintiff is a young man aged 26, having been born on 18 May 1981.  On 11 August 2001, then aged 20, when driving a motor car along the Eastern Corridor, he was involved in a collision with another vehicle as a result of which he suffered an amputation, from the shoulder, of his right arm.  He was right handed.  He has obtained judgment against the driver of the other vehicle subject to a 50% deduction for his own contributory negligence.  I am now required to assess what damages should be awarded to him.

2.  Damages need to be assessed in respect of a number of important heads which I will identify and discuss as I turn to each of them.  Plainly, on any view, the award will be substantial.  The most important aspect of special damages will be the cost of a prosthetic arm.  Mr Lam, for the plaintiff, has called evidence in respect of a very effective high quality and expensive German manufactured prosthesis.  If he succeeds in persuading me that it is reasonable and therefore right to award the cost of such a prosthesis which, with future replacement parts, will amount to nearly $5.8 million, as opposed to a more basic and much cheaper model contended for by the Defendant, the almost certain consequence of the 50% reduction in his damages for contributory negligence is that the Plaintiff will not be able afford the cost of this prosthesis and will at best only afford to purchase a cheaper and less effective device.

3.  I have raised with both counsel whether this consideration of affordability should affect my approach, at least to this item of damages, where if I consider the more expensive prosthesis appropriate to the Plaintiff’s circumstances, but which will be beyond his means, whether I should still award the amount required for its purchase knowing that the device will almost certainly not be purchased.  It did strike me that there might be an argument that the court should not make awards of damages to make specific provision for expensive equipment of this sort knowing that the purchase will be beyond the Plaintiff’s means in this case because he will suffer a 50% reduction in his damages which will therefore make this purchase unaffordable.  Both counsel are agreed that I should not take this consideration into account in my assessment of the appropriateness of this item and merely award the amount based entirely of whether this particular prosthesis is in this Plaintiff’s circumstances reasonable and appropriate.  It is submitted that the question of affordability, having regard to the 50% reduction for contributory negligence, should not affect my approach.  In such circumstances I propose to assess the matter in the way that counsel have asked me to leaving over to perhaps another occasion whether the court should make awards of this sort in the near certain knowledge that the item will not be purchased because the Plaintiff will not be able to afford its cost having regard to the deduction for contributory negligence.

The Plaintiff’s Employment History Prior to the Accident

4.  It is helpful to start with this because it will undoubtedly impact on the award of damages for pre-trial loss of earnings and future loss of earnings, the latter in particular forming a very considerable component of the Plaintiff’s claim.

5.  The Plaintiff left school having completed Form 3 and went to work as an apprentice for Kwong Chun, a company operated by his father, which was in the business of servicing and re-conditioning for re-sale industrial printing machines.  This work required him to climb onto and also to go underneath the printing machines to enable him to get at the various moving parts which needed servicing and lubrication or as the case may be complete replacement.  The surrounding area of a machine could become greasy and slippery due to the use of cleaning fluid such as kerosene.  The Plaintiff emphasises the importance of being able-bodied in order to maintain his balance on a slippery floor and in order to carry out the physical demands of the job itself.  This is work for a two-handed man, which is a matter that I will need to return to when I consider his future employment prospects.

6.  His evidence is that he was able to make good progress in his father’s company acquiring all the necessary technical skills as well as learning how to manage the company, the other employees and in dealing with the clients.  There came a time when he had to do all of this because his father decided to go to live on the Mainland in order to develop the business there leaving him to run the company in Hong Kong.

7.  About two months prior to the accident, he was joined in the business by his elder brother with whom he has always had a very uneasy relationship.  His brother is short-tempered and domineering.  It was not long before they started having rows over business matters as a result of which the Plaintiff decided that he could not continue.  He told his father so and resigned.  At the time of his resignation, he was being paid $11,000 a month together with a $1,000 monthly food allowance as well as a year end double pay and a bonus of one month’s salary.

8.  He then went to work for a company called Powerful Plastic Engineering Company Limited (“Powerful”), a company owned by the father of his good friend Pang Cho Yee.  Powerful is in the business of processing plastic moulds.  He started as an apprentice graphic designer relating to the design and making of the plastic moulds.  He was engaged by Powerful for about a fortnight before the accident.  The job was based in the Mainland.  Unsurprisingly, the pay was modest at between $6,000 and $7,000 a month.  He was also provided with free accommodation on the Mainland and free meals three times a day.  Additionally, he was given a travel allowance to and from Hong Kong.  His case is that following the completion of his apprenticeship he would have moved up to a computer graphic designer and even onto the management staff where he might have expected to earn up $20,000, in addition to the other benefits which I have just referred to.

9.  It is this expected salary which really forms the basis for his claim for future loss of earnings, which I will need to give close consideration to having regard to a number of elements that bear on this aspect of the case, including the notoriously difficult task of predicting how the working life of a 20-year old would have developed but for this terrible injury.

The Effect of the Injury

10.  This needs to be considered under a number of heads.  The main aspects are in respect of the claim for pain and suffering and loss of amenity including cosmetic defect and the psychological and social effects of the loss of his once dominant arm.  The other very important effect relates to his earning capacity which will affect the claim for pre-trial as well as future loss of earnings.  Underlying all of these heads of damage will be the benefit of using a prosthetic arm if I make provision for one.  As will become apparent shortly, a high quality prosthesis will undoubtedly affect the claim for loss of amenity, cosmetic defect and the psychological and social effects of his injury.  The prosthesis will also, given its effectiveness, sound in the claim for future loss of earnings.

11.  It now becomes necessary to give separate consideration to the various aspects of the claim under the broad heading of the effects of the injury.

Medical Treatment

12.  The medical evidence has been agreed.  I propose to briefly summarise the management of his injury which will in turn go to the assessment of the claim for pain and suffering.

13.  At bundle C50, there is a joint report dated 25 May 2006 from Dr Cheng and Mr Tsoi, both of whom are specialists in orthopaedics and traumatology.  I am also much assisted by a report dated 10 October 2001 [C1] from Dr Joshua Ko, the senior surgeon at the Eastern Hospital which is where the Plaintiff was taken after the accident.  Dr Ko observes that as a result of the collision the car which the Plaintiff was driving turned over.  Dr Ko describes a traumatic amputation of the right arm.  The Plaintiff sustained no head or other associated injury.  The amputation level of the right arm was over the upper one- third of the arm.  Dr Ko has described in detail the state of the injury and more particularly the gross injuries to the amputated arm which had been crushed.  Given these injuries it was not possible to attempt a “replantation” of the right upper limb.  Dr Ko has said that:

“

the right forearm and elbow were crushed.  The elbow joint was contaminated and fractured.  The brachial artery, cephalic vein, basilic vein and nerve were avulsed and crushed which resulted in segmental loss.  Major portion of right arm from surgical neck of humerous to right elbow were crushed into pieces.  The triceps and biceps were crushed and non-viable.”

14.  Having performed the first operation on 11 August 2001, a second was performed on 14 August and on the following day the amputation wound was closed.  The wound healed well and the Plaintiff was discharged on 23 August.  He was seen again on 31 August.  The wound had healed but the Plaintiff complained of phantom pain.  He was referred for physiotherapy, occupational therapy and for psychotherapy.  Dr Ko concludes by saying that that he was seen again on 20 September 2001 when it was obvious that the amputation wound had healed.  He was sent off to the pain clinic as well as to the prosthetic arm department. Dr Ko states that the Plaintiff would need vocational and recreational advice.

15.  The papers also contain a psychological report from the hospital as well as an occupational therapist’s report but this material has been fully taken up in the parties medical expert reports and the psychological report from Professor Lee and one by Mrs Shelly Chow who has provided occupational therapy guidance, with the result that I do not propose to make any specific reference to these other hospital reports.

16.  It now becomes necessary to refer to the agreed expert medical and psychological evidence.  This is substantial and is there to be read.  It starts at C20 and including Mrs Chow’s occupational therapy report goes on to C84.  What I propose to do is to isolate the particular features of this body of expert evidence which need to be reflected in the award under the various heads of damage that are claimed.

17.  I begin with the joint report of the orthopaedic surgeons, Dr  Cheng and Dr Tsoi.  They saw the Plaintiff on 29 March 2006 about 4½ years after the accident.  At page 53 they record that the Plaintiff was put on a full rehabilitation course including physiotherapy and occupational therapy and the fitting of a harness type prosthetic arm which, given its weight and general limitations, was not a success.  This prosthesis needs to be contrasted with the very sophisticated version which is being claimed for.  The orthopedic surgeons observed that the Plaintiff gradually coped with the effects of his injury and resulting disability.  After a year of physiotherapy and occupational therapy, he no longer required follow-up.  He continued his rehabilitation at home.  Two years after the accident he returned to work in the family business, more of which in some detail presently.  As to his “present condition” the report says that the Plaintiff complains of pain over the stump of the amputation with occasional hyper-sensitivity and of “phantom limb” phenomenon which is of pain over the right hand and forearm as if it was still there.  As to the activities of daily living the Plaintiff is said to be able to take care of himself.  He can feed himself, dress, shower, go to the lavatory and take public transport.  He is now learning to become left-handed.  Professor Lee gives a fuller account of the injury’s impact on his social life but the surgeons also comment on this briefly.  They say he no longer does sport and prefers to go out with his old friends.  He feels “inferior” and he told the surgeons that his girlfriend left him.  As to the hospital provided prosthesis he hardly uses it.  It is too heavy and has limited functionality (my word).  If he puts it on it is for cosmetic reasons only.  Overall it is pretty useless.  As to clothing and footwear he prefers buttons to zips and wears slip-on shoes.  His general health was assessed as good.  As to the amputation there is tenderness over the stump with some hyper-sensitivity.  The shoulder is normal with full range of motion and good muscle power.

18.  By way of final comment, Dr Cheng and Dr Tsoi conclude that the plaintiff’s course of rehabilitation including physiotherapy, occupational therapy and psychological counselling was complete, adequate and satisfactory.  At paragraph 18 of their report they say that:

“

There is one very positive aspect.  In talking to Chan, we are pleased to note he is of a sound and stable mental state.  He accepts his misfortune and handicap.  He takes a very positive step to life.  He began work tow years after the accident, as a maintenance machine in a printing shop owned by is brother.  Although he is uneasy in front of strangers or new acquaintances, he is comfortable with his friends, and he takes his loss in a very matured fashion.”

This, of course, is most encouraging.  Nevertheless, this is further dealt with at paragraph 22 as follows:

“

The effect of this injury is that there is loss of the right upper limb.  Needless to say, Chan is severely handicapped.  His chance of job opportunity in the open market has to be compromised.  There is also the possibility of Chan encountering certain social barrier.  Chan is a young man with a positive attitude.  He is working well now.  He should learn more skills, preferably in computer, and non-manual skills.”

19.  The surgeons have also dealt with his difficulty concerning the cumbersome prosthesis provided by the hospital and are sympathetic with his view that given its weight and lack of useful features it would be pointless to persist with this device.  They do not deal with the use of the very expensive Otto Bock system which I will come to presently and which the Plaintiff would like to use.

20.  I also have a very detailed psychological report prepared by Professor Lee of Hong Kong University drawn up on the basis of assessments made in March and April 2006. [C20 to 49]  Professor Lee, with his customary thoroughness, has investigated every aspect of the Plaintiff’s psychological well-being consequent upon his injuries.  At paragraph 11 Professor Lee in recounting how the interview proceeded refers to the Plaintiff being initially calm but as he went on talking about the accident he trembled and finally broke down and cried:

“	His mood was sombre and depressive, lacking any signs of enthusiasm, zeal or fervour … He complained of having constant pain but that he had tried to carry on with his life by ignoring it as much as he could.  His cognitive functions were unimpaired.  He did not present with psychotic symptoms.”

Importantly, at paragraph 12, Professor Lee says that the Plaintiff impressed him as being consistent in his accounts of his difficulties and that he did not exaggerate his complaints.

21.  Of his pre-accident state Professor Lee records at paragraph 16 that the Plaintiff had obtained his driving licence at 18 and was happy with life.  He had no worries and earned a decent income.  He had many girlfriends and was popular amongst his friends.  Starting at paragraph 20 Professor Lee sets out the Plaintiff’s account of a very full and contented life.  He enjoyed his work as he did a very full social life which included a steady girlfriend.  Professor Lee then elicited from the Plaintiff a very graphic account of the accident and the trauma associated with it.  In hospital he thought of “ending his life”.  Having dealt with his treatment and rehabilitation Professor Lee then turns to “Current problems, difficulties and complaints”.  An aspect which the other reports had not really picked up on is a complaint of constant pain which at first the Plaintiff described as 9 to 10 on a scale of 0 to 10 — 10 being excruciating unbearable pain.  This has now lessened to 6 to 7.  The pain is constant.

22.  The Plaintiff has spoken to Professor Lee of his social isolation and sense of discrimination by virtue of being one-armed.  As a result he rarely goes out to places of public entertainment such as public houses and discotheques.

23.  In respect of work, the picture presented by the Plaintiff to Professor Lee is a much more optimistic one than that presented at the trial by him and on his behalf by Mr Lam.  Referring to his initial re-employment with his father on the Mainland [paragraph 48] he described his office work processing customers’ orders.  Later, he felt able to do more technical work, instructing technicians and doing quality assurance work.  Professor Lee says:

“	He felt okay with a gradual build-up of his work confidence.  Unfortunately, about one year later, the company had rather poor business.  He did not want to burden his father for having to pay him a salary.  He then returned to Hong Kong.”

24.  This rather contrasts with his own evidence that he felt rather useless “working” with his father because he could be of very little assistance and that there was an understanding that he would repay his father his salary out of any damages that might be paid to him and that he was honour bound to do so.  The passage that I have just cited provides a picture of the Plaintiff having grown in confidence and being able to contribute to the business by instructing technicians and doing quality assurance.  His departure was due to the fact that the business could no longer afford his salary.

25.  His increased usefulness at work is then further picked up at paragraph 49.  He told Professor Lee that he was given a salary of $8,000 and assigned to work with an assistant on repairing and renewing printing machines.  He told the Professor that:

“

He had learnt to work with his left hand.  When the task is too physically demanding he would rely on the assistant to help out.  However technically he remains in charge and feels competent in handling the required job.  Due to over use of his left hand, he often has pains, aches and numbness sensations in the left hand after work.”

26.  At paragraph 51, he told Professor Lee that:

“	Over the recent six months, he has tried to focus himself fully at work to compensate for the loss of his right hand.  His daily routine consists of working long hours, being exhausted, sleeping and working again.”

27.  The picture that emerges from what he told Professor Lee therefore is that the Plaintiff, to his great credit, is despite his limitations a useful and hardworking member of the business.  He has “… learnt to work with his left hand” and whilst one must not underestimate his disability it seems to me that this evidence provides the best insight into his capacity to work at his old job.  It would appear that he is capable of giving proper value for the relatively modest salary that he is being paid.  As will emerge when I consider the attributes of the Otto Bock prosthesis his capacity to perform effectively in this work will be considerably enhanced.  I am satisfied that he has given Professor Lee the truest and most accurate account of how he is currently performing at work.  This evidence will affect two aspects in particular.  Firstly, his claim for future loss of earnings and secondly, the submission that he feels honour bound to return his salary to his brother because it does not represent proper value for what he is able to do on the job.  In this regard what he told Professor Lee at paragraph 50 will also need to be considered:

“

He is concerned that no one else (apart from his brother) would employ him with only one hand.  He feels insecure and obliged to accommodate his brother’s bad temper and easy agitation.  He feels ‘uncomfortably dependent’ on someone else, and having to subdue his emotions and frustrations.  However, at the same time, he also feels his brother genuinely cares for his well-being.”

28.  Professor Lee has also dealt with the Plaintiff’s daily routine.  The Plaintiff told him that having risen at about 10 a.m. he would get to work and remain working till between 7 and 8 p.m., after which he would generally return home (being his brother’s home where he lives) spending the evening quietly alone watching TV or on the computer.  His social life was explored by Professor Lee.  He was told by the Plaintiff that he was less inclined to approach the opposite sex because of his disability and that he did not go out much with his friends.  He felt discriminated against.  A positive feature is that he now has a disabled driver’s licence and has no problems and enjoys driving.

29.  Professor Lee also administered a range of psychological tests.  He judges from those tests that the Plaintiff has moderately depressive symptoms.  Paragraph 77 of the report helpfully provides a full account of the result of the tests.  By way of concluding opinion Professor Lee says that four years after the accident the Plaintiff has achieved:

“	… a superficially stable adjustment in his everyday life through his own resilience, determination and will not to burden or be dependent on anyone.  He has resumed his previous work as a printing machine repair and renewal technician.”

Nevertheless, Professor Lee has concluded that:

“	he is not entirely well psychologically.  He is suffering from a dysthymic disorder.  He has a persistent sombre and depressive mood and low self-esteem.  His ‘life quality has diminished significantly’.”

As a result, Professor Lee has recommended a prolonged course of 25 psychological counselling consultations to help him re-build “a more robust self-image” and “to plan realistically for his future”.  Finally, Professor Lee concludes [para.85] that in terms of work the Plaintiff:

“

… seems fully competent technically and in terms of skills to continue with his previous work.  However, in terms of actual physical ability and prowess, I am afraid that he would always be compromised with only one functional hand.  I am also concerned that he seems to be over-using his left and only hand, which is showing signs of impending problems e.g. pain and numbness sensation.”

The Professor ends his report by saying that it is important that the Plaintiff should be provided with the financial resources to acquire a high quality prosthetic right arm to improve his cosmetic and functional status.  Professor Lee’s view is that the provision of such a device would make the Plaintiff feel less stigmatized by his disability and also that his emotional condition would improve.

30.  It strikes me that this very full agreed assessment by Professor Lee must ultimately provide me with very compelling material to assist my task in respect of a number of the heads of damage that are claimed by the Plaintiff and to resolve some of the contentious issues between the parties.  In respect of these matters I will, of necessity, have to refer to those parts of Professor Lee’s report which bear on these issues when I come to my assessment of the damages under these different heads.

31.  There is also another psychological report from Dr Anita Leung which starts at C135.  Her conclusions are broadly in agreement with Professor Lee.  From tests that she administered, she also concludes that the Plaintiff shows a Dysthymic Disorder being depressed and with low self esteem.  At paragraph 11.4 [page 149] she says that he:

“	could handle his previous work of cleaning, maintenance and repair of printing machines with the assistance of a worker”.

She too recommends, in her view 20, sessions of psychological counselling as well as recommending a high quality prosthesis.

32.  I should also refer to a very full report by Mrs Shelley Chow, who is a very experienced occupational therapist.  Her report is at C60.  She has assessed, amongst other matters, his needs in terms of aids and equipment, which might assist the Plaintiff in the light of his disabilities and, starting at page C74, she has set out what these are and their cost.  Unsurprisingly, save for the major issue of the prosthetic arm to which she has also referred, these items are agreed although their cost is not but I propose to award the Plaintiff what Mrs Chow has recommended.

The Prosthetic Arm

33.  The Plaintiff’s evidence is that he has really given up on the Hospital Authority model, which is heavy, and of limited assistance.  He hardly ever uses it.  Now that he has had explained to him the advantages of the Otto Bock system, which Mr Raymond Ng has given evidence about and provided a very full report which starts at C92, the Plaintiff would very much like to have one fitted for his use.  As I have already indicated the overall cost would be $5.8 million.  Mr Kwok questions the necessity of having to provide the Plaintiff with the most expensive model available on the market.  He has pointed to Mrs Chow’s report who appears somewhat guarded on this device.  At page 79, she says:

“	It may be all very well to provide Mr Chan with a powered prosthesis but this will be useless if he does not wear it and does not make functional use of it in his daily activities.”

Nevertheless, she does say that:

“

Mr Chan may find that a light weight cosmetic prosthesis would make socialising and going out less stressful for him, and give him a social life again, plus he may be more confident to visit family members such as his grandmother again.  A functional prosthesis, which is comfortable and useful, may also assist him to perform tasks bilaterally as he has become quite unilateral.  He may find that having good prostheses improves his self confidence and self esteem.”

At page 80, she provides costs which range from $80,000 to $200,000 for a myoelectric (powered) prosthesis.

34.  Mr Kwok is in a difficult position in submitting that Mrs Chow’s evidence is to be preferred to Mr Ng where the parties have jointly appointed him to deal with this aspect of the case.  Mrs Chow, although of course able to speak on such devices as part of her expertise as an occupational therapist, is not in a position to go into the merits of the Otto Bock in the way that Mr Ng is able to.  In fact at paragraph 4 of her report (page 80) she suggests that the Plaintiff should consult Otto Bock or the University of Hong Kong Rehabilitation Engineering Clinic.

35.  In respect of this aspect of the case I am satisfied that the Plaintiff would use an Otto Bock if I made provision for one.  I also find that it is entirely reasonable, given his disability, that he should be provided with one.  This is not a case where questions of necessity arise or any doubts can be entertained that the Plaintiff would use the prosthesis.  Whilst this is very much the “Rolls Royce” model and is priced as such it is entirely right that the Plaintiff ought to have the best on the market.  Having lost the whole of his dominant arm he should be provided with the best available electrically powered replacement together with the accessories that go with it.

36.  I am much impressed by Mr Ng’s report and his evidence that the Otto Bock will give back to the Plaintiff a great deal of the “functionality” that he has lost.  The electric hand [page 106] will enable the Plaintiff to perform delicate tasks such as typing and buttoning of shirts and doing up shoe laces.  The sensor hand [page 107] will assist him in taking hold of more fragile items such as liquid containers.  The silicone cosmetic hand [page 108], which comes with cosmetic gloves, is so sophisticated that blood vessels are reproduced to give the appearance of a natural hand.  Overall, the whole of the prosthetic package, if I may so describe it, will provide lifting strength in the arm itself, fine touch and grip of the hand and, cosmetic appearance will be very greatly enhanced.  This is bound to provide the plaintiff with, of course, far more amenity as well as greatly reduce the cosmetic defect of having suffered a full-length amputation.  I am also satisfied that it will go a long way to improve his general outlook on life in terms of adding to his social confidence and improve, together with psychological counselling, his depressed mood.  For these reasons therefore, I propose to provide for the cost of the Otto Bock in full. 

37.  This concludes what I wish to say about the effects of the injury in terms of its medical and psychological effects including its impact on his social life, although I will say a little more on this aspect when I refer to the Plaintiff’s evidence to which I now propose to turn.

The Plaintiff’s Evidence

38.  Because I have already mentioned what the Plaintiff has said about the accident and its effects to the various experts, I only propose to refer to certain aspects of the Plaintiff’s evidence as it relates to some of the issues which I must resolve. 

39.  In the course of giving evidence, the Plaintiff has been careful to emphasise the social effects of this injury.  He says the loss of his arm has made him introspective; he does not go out much because he is embarrassed and he has not been able to relate to young women as he had in the past.

40.  The starting point to this is that the loss of an arm is bound to cause embarrassment and loss of confidence as the Plaintiff has described.  At the time of the accident, the Plaintiff had the good fortune of having a loyal girlfriend who stood by him and helped his mother to care for him.  In the event, he felt that he could not or perhaps ought not continue their relationship because of his disability and so he let her go.  Since then he has had one or two other girlfriends and has grown in confidence.  He is a handsome young man and I am convinced that he will, in due course, regain his confidence and be able to develop steady and long-term relationships.  But for the accident he would have enjoyed, as he was at the time, female companionship and no doubt gone on to marry a girl of his choice.  I can well understand a submission that eligible young women, faced with a choice, will not favour otherwise attractive young man who have suffered an amputation of one of their arms.  Nevertheless, the evidence does suggest that given the Otto Bock prosthesis which will enhance his sense of self-worth in terms of increasing his ability to work more effectively together with encouragement obtained from psychological counselling, the Plaintiff’s overall quality of life will be much improved.  The cosmetic improvements of the prosthesis will enable him to present himself to the outside world in a much more appealing way and persuade him to socialise much more than he has done up till now which has been limited to a close and loyal group of old friends.  In this regard, I consider that it is more likely than not that he will be able to enjoy relationships with the opposite sex although, as must be recognised, this will always be more difficult for him.

41.  He was somebody who enjoyed sport.  Plainly, in this regard most of those opportunities will be permanently lost to him which is something that will sound in damages.

42.  Mr Kwok has picked up on the Plaintiff’s spending pattern as shown in his bank statements and credit card accounts.  I accept that this is a very curious aspect of the Plaintiff’s case.  The main feature, as Mr Kwok has been able to demonstrate from his analysis of the bank and credit card statements, is that substantial amounts have come into the account and substantial amounts gone out.  This all started following receipt by him of a $1 million plus insurance company pay out.  His explanation for the payments out are that he has lent money to his friends which they have repaid in partial re-payments and that he also paid out a substantial amount to his mother.  It is right to say that he has not called these people to corroborate what he has said on these matters.  Mr Kwok has attempted to suggest that these payments in and out are related to work and reflect a far greater income than the Plaintiff is prepared to admit to.  Mr Lam has responded by drawing attention to a long line of case law to the effect that in the absence of credible evidence, even where a witness’s explanations are not convincing, the court is not permitted to find that the case put to the witness is in fact the truth, contrary to the witness’s denials.  My conclusion is that many of the Plaintiff’s explanations for these transactions are not convincing and I am not prepared to accept them as the truth.  Nevertheless, the fact is that Mr Kwok’s suggestions in cross-examination cannot stand-alone.  The evidence is simply not there.  All that Mr Kwok has succeeded in doing is to persuade me that I should not accept the Plaintiff’s case at face value on these transactions.  That is as far as it can go.  He has not been able on this evidence to erect a positive case based on his cross-examination.  All I can say is that a great deal of money has gone in and out of the accounts, the explanation for which in many instances I am not prepared to accept.  This is the extent to which I am permitted and prepared to go.

Should the Plaintiff Give credit for His Post-accident Earnings to Date

43.  This has become an important discrete issue in the Plaintiff’s case which calls for resolution.  It is convenient to take it now as part of the Plaintiff’s evidence.

44.  Mr Lam has very carefully taken me through the authorities on this, some of which I will need to refer to in a moment.  The point is this.  The Plaintiff says that once he was able to return to some kind of work he did so.  Firstly, working with his father and after that, up to the present time, with his brother.  As to his employment with his father his case is that he was paid nothing save for pocket money, food and accommodation.  He has told me that he was paid no salary as such because he could not justify one.  He was unable to do any useful work.  Perhaps it is only a question of emphasis or degree but what he told Professor Lee [para. 48 C35-36] is that after a while he was able to instruct technicians and conduct quality assurance inspection of their work.  It seems to me that what he was telling Professor Lee is that after a certain period of time he was able to make himself useful on the job.  Nevertheless, what I am left with is that he says that he was paid no salary during this period of about a year.  Mr Kwok is not able to challenge this directly although it would have been perfectly simple, I would have thought, for the Plaintiff to call his father to support the case that he was paid no salary.  He received a nominal amount by way of pocket money and his board and lodging.  In this regard, I can either accept his account and he will therefore be fully compensated for his loss of earnings during this period of time or, if I do not accept what he says and doing my best, assess a notional salary and adjust his loss of earnings downwards accordingly.  It strikes me that what he has said is perfectly sensible.  He wanted to make himself useful and to get himself going after two years doing no work at all.  I accept his account that he received no salary from his father with the result that he continued to suffer a total loss of earnings.  This said I tend to think that latterly he was much more useful doing his job than he was prepared to tell me, as the account that he gave Professor Lee indicates, which in my judgment is the correct version of his performance up till then.

45.  From this he moved to work with his brother because his father’s business was doing badly and it could no longer support him even paying him a nominal amount as pocket money together with board and lodging.  He now earns $8,000 a month.  The case that he puts forward is that because of his current situation, where he works one-handed, he cannot be effective.  He does his best but is very much dependant on an assistant to get at the parts of the printing machines that need repairing.  He cannot do this work himself.  Whilst he must accept that his situation will greatly improve when he is fitted with the Otto Bock, this part of his case is based on his having to work one-handed.  What he says is that he is, in effect, a passenger.  The assistant does the real work.  The salary that he is being paid cannot be justified by the present value of his labour and that on this basis he is honour bound to repay the amount that his brother is paying him each month.

46.  At this stage, it is convenient to consider some of the authorities referred to by Mr Lam which assist as to when payments of this sort to an injured person are not to be deducted in calculating a claim for loss of earnings.  In Hussain v New Taplow Paper Mills Ltd [1988] AC 514 at 527D, 528B, Lord Bridge expressed the matter in this way:

“

… the rule [is] that prima facie the only recoverable loss is the net loss.  Financial gains accruing to the claimant which he would not have received but for the event which constitutes the claimant’s cause of action are prima facie to be taken into account in mitigation of losses which that event occasions to him … But to the prime facie rule there are two well-established exceptions.  First, where a claimant recovers under an insurance policy for which he has paid the premiums, the insurance moneys are not deductible from damages payable by the tortfeasor : see Bradburn v Great Western Ry Co (1874) LR 10 Exch 1, [1874-80] All ER Rep 195.  Secondly, when the claimant receives money from the benevolence of third parties prompted by sympathy for his misfortune, as in the case of a beneficiary from a disaster fund, the amount received is again to be disregarded : see Red-path v Belfast and County Down Ry [1947] NI 167 ,,,

There are, however, a variety of borderline situations where a claimant may receive money which, but for the wrong done to him by the defendant, he would not have received and where there may be no obvious answer to the question whether the rule against double recovery or some principle derived by analogy from one of the two classic exceptions to that rule should prevail … judges, I think it is fair to say, have been baffled by the problem of how to articulate a single guiding rule to distinguish receipts by a claimant which are to be taken into account in mitigation of damage from those which are not.  Lord Reid aptly summed the matter up in Parry v Cleaver [1969] 1 All ER 555 at 557, [1970] AC 1 at 13 when he said : ‘The common law has treated this matter as one depending on justice, reasonableness and public policy’.”

Lord Reid in Parry v Cleaver [1970] 1 AC 1 at 14 put it strongly as follows:

“

It would be revolting to the ordinary man’s sense of justice, and therefore contrary to public policy, that the sufferer should have his damages reduced so that he would gain nothing from the benevolence of his friends or relations or of the public at large, and that the only gainer would be the wrongdoer.”

This particular issue is also dealt with in Kemp, vol 1, 2007 at paras 27-031 to 032 in the following way:

“

It is not necessary that it should have been a term of the contract of employment, not even a condition of the making of the payment by the employer, that the sums paid would be reimbursed to the employer from any damages recovered.  It is enough if there is an ‘understanding’ between the employer and the employee, and it seems that it may even be enough if the employee would feel a moral obligation to repay his employer.”

This sort of point arose as long ago as 1948 before Denning J (as he then was) in Dennis v London Passenger Transport Board (1948) 1 All ER 779.  The report is a short one and it is helpful to set it out in full here.

“	The plaintiff, who was injured through the negligence of the defendant, received no wages during the period of his disability, but the Minister of Pensions and his employers paid to him, in pension and sick pay, amounts which together equalled his wages.
	HELD : the amount of wages lost by the plaintiff should be included in the special damages awarded him although he was under only a moral, and not a legal, duty to refund that sum.
	… The plaintiff was employed by the London County Council as an ambulance attendant.  On Jan. 1, 1944, a motor ambulance in which he was travelling was run into by a tramcar belonging to the defendants, and he was injured.  The accident was admittedly due to the negligence of the driver of the tramcar, and the only question which I have to determine is that of damages.
	From the date of the accident until the date on which he was fit for work the plaintiff received no wages, but he did receive approximately the like amount by way of pension from the Ministry of Pensions and sick pay from the London County council.  In a letter to the plaintiff the Ministry of Pensions, though not asserting that he is under a legal obligation to refund the moneys which they paid him, say he will be expected to refund the amount if he recovers compensation from a third party, and as to the sick pay the plaintiff says that the London County Council told him that, if he got compensation, he would be expected to repay it.  The net result appears to be that the plaintiff received his wages from the London County Council and the Ministry of Pensions.  They may have no legal claim to recover it from him, but, in those circumstances, is it to form part of the damages which the defendants have to pay?
	The plaintiff tells me, through his counsel, that he is ready to undertake, if he recovers damages, to repay those two bodies, the London County Council and the Ministry of Pensions, the sums they have paid him, which he is under a moral obligation to do.  The cardinal point to remember is that it is the defendants who are responsible for what has occurred.  In my opinion, a wrongdoer is not to be allowed to reduce damages by the fact that other persons have made up to the plaintiff his wages, like the London County Council and the Ministry of Pensions in this case.  The plaintiff has lost his wages.  In point of law, therefore, prima facie he should have them paid by the wrongdoer.  As they have been made up to him by other people who expect to be repaid I think it is proper that that sum should be included as damages, but subject to the direction that the amount paid to the plaintiff by the Ministry of Pensions and the London County Council shall be paid to those bodies out of the sums recovered.  If I remember rightly, the court took the same course in Allen v. Waters (1) with regard to payments to a hospital.”

Mr Lam has also drawn attention to the unreported decision of Collins J in Hensman v Goodsall 23 January 1997, which is cited in Kemp in which the judge referred to Dennis v London Transport Board and decided that case in accordance with the principles enunciated by Denning J.

47.  Mr Lam has very helpfully and, correctly in my view, extracted the following as the guiding principles to which I must apply to the circumstances of this monthly payment of $8,000 in deciding whether or not the amount should be deducted:

“	(a)	Whether the amount received should be deducted depends on the nature of the payment.
	(b)	In determining the nature of the payment, the Court looks at the substance, rather than the label, of the payment.  It will consider the actual arrangements made and the particular circumstances of the case.
	(c)	If the payment is salary properly-so-called which the plaintiff received as of right, deduction is required.
	(d)	But if the payment is ex gratia or a loan only, no deduction should be made.  It is sufficient if there is an ‘understanding’ or ‘expectation’ of repayment, or even that the plaintiff feels under a moral obligation to repay.”

48.  I have decided that on this occasion the $8,000 payment represents a salary on its merits, as it were, and despite the Plaintiff saying that he is expected to repay this out of his damages I propose to take this into account in assessing his pre-trial loss of earnings.  It needs to be remembered that the Plaintiff is now very experienced at this sort of work.  He started in this family business shortly after leaving school and ran it by himself for a time when his father left to operate his company on the Mainland.  He became familiar with all its facets, both technical and administrative.  Whilst I am all too conscious of the fact that physical work of this sort puts a one armed man at a severe disadvantage this is, to a considerable extent, offset by his experience and knowledge of the printing machinery that he is required to work on.  Administravely, dealing with customers on the telephone and face-to-face would present no difficulty.  When a physical task is too difficult he has the help of his assistant.

49.  The other matter that I bear in mind is what he told Professor Lee resulting in the Professor saying the following at para.85 of his report:

“	(He) seems fully competent technically and in terms of skills to continue with his previous work …”

Dr Anita Leung says, based on what the Plaintiff told her:

“	(he) could handle his previous work of cleaning, maintenance and repair of printing machines with the assistances of a worker.”

50.  I do not accept the note sent in by the Plaintiff’s brother to the effect that he is expecting repayment.  It would have been very simple to have had him called and to have his account tested by cross-examination.  It strikes me that this is a genuine salary pitched at $8,000 to have regard to the fact that the Plaintiff needs to have an assistant to help him which, of course, is an added cost for the company.  The Plaintiff had, in 2001, been earning $11,000 a month as a basic salary plus $1,000 as a food allowance as well as year end double pay and a bonus of one month’s salary.  His present, much lower, salary six years later reflects his disability.  Nevertheless, it is clear from what he told Professor Lee and Dr Anita Leung that he is able to do a proper job of work for the company which is not surprising given his previous experience.  This being my finding and for these reasons I do not consider that he is or ever has been expected to pay these amounts back.  He is been paid his current worth, working long hours as he has told me in evidence and Professor Lee.  The result therefore is that his pre-trial loss of earnings as from the date that he resumed working for the family company in Hong Kong will have to be assessed as partial loss of earnings by first arriving at what he would have been earning but for the injury less his actual earnings of $8,000 a month.

51.  These are the distinct issues that I need to resolve and from them, I am now able to turn to my assessment of the various heads of damage.

Pain, Suffering and Loss of Amenity

52.  To these items of general damages must be added compensation for cosmetic defect as well as the psychological effects caused by the injury.  The Plaintiff had to undergo three operations including the final procedure which resulted in the amputation wound being closed.  Professor Lee has amply referred to his depressive disorder which is perfectly understandable given a major injury like this one.  In this regard, Dr Anita Leung also found that the Plaintiff suffers from dysthymia (being a mild depressive condition).  I have already referred to the nature of the physical injuries and do not propose to repeat these again.  Mr Lam has not been able to find any comparable full-length amputation.  In Pang v Hoi Tat Rubbery Factory [1996] 2 HKC 556 the amputation was 16cm below the elbow.  The court awarded $600,000.  In Ng v Cheng & Ors, HCPI 305/1997, the award for an amputation just below the elbow was $680,000.  In Ng v Lau [2000] 2 HKC 759, the Plaintiff’s right upper arm was completely paralysed with a complete loss of sensation and so the Plaintiff could do nothing with this arm.  He needed to have the shoulder immobilised.  He remained in hospital for seven months and had many operations.  The award was $1 million.  It strikes me that this case involved more injuries and although the arm was not amputated it was useless.  In this case, I need to have regard to the very considerable utility of the Otto Bock.  Mr Kwok has sought leave to amend downwards his predecessor’s assessment of $800,000 to $600,000.  Taking everything into account this is a case of major proportions involving the complete loss of a dominant arm.  This needs to be faced up to by the Defendant. Nevertheless, the assessment must also weigh the benefits of the Otto Bock prosthesis in terms of utility, cosmetic benefit and as a result the psychological uplift that I expect it to provide for the Plaintiff.  I have not mentioned the other minor injuries suffered by the Plaintiff from which he has fully recovered but I will take them into account.  It seems to me that the correct award under this head is $880,000.

Losses Up to Date of Trial

Other Special Damages

Cost of Care and Attention by Mother and Girlfriend

55.  This is agreed at $50,000 which I will award.

Future Loss

Additional Submissions

57.  After the close of speeches, I gave the parties leave to address me on whether fringe benefits received by the Plaintiff should be taken into account in assessing loss of earnings.  As is evident, I have taken those benefits into account in assessing the Plaintiff’s income at Powerful.  The fact that such benefits can be valued and taken into account is well settled — see McGregor on Damages (17^th Edition 2003) paras. 35-048 and Kemp Vol. 1, 2007, paras. 10-068 pages 10029-10030 as well as Butterworth’s Hong Kong Personal Injury Service Vol. 1, 2007, para. II (1102) at page II (808)-(809).  The passage there merits repetition here:

“	Many employees in Hong Kong, in addition to receiving income by way of wages or salary and bonus, also get employment-related fringe benefits.  For example, workers may receive fringe benefits such as free meals or food allowances, free transport to and from work or a travel allowance, and in some cases free accommodation.  Expatriate and management-grade employees are often given fringe benefits such as free or subsided accommodation, leave fares, education allowances, medical and dental benefits, free utilities, a free car or petrol allowances, medical and dental benefits, employer contributions to a superannuation scheme, and share options.  Where the plaintiff is injured and unable to work or can only take up employment which does not provide such fringe benefits, his pecuniary loss will not only be his loss of earnings but also the loss of his employment-related fringe benefits.
	It has been clearly established by the Court of Appeal in Liffen v Watson that the value of such fringe benefits is recoverable by the Plaintiff … Having established that the value of employment-related fringe benefits is recoverable by way of damages for a pecuniary loss, it becomes necessary to assess a monetary value for fringe benefits.  The valuation of fringe benefits is simply based on evidence as to the money’s worth of such benefits …
	The courts in Hong Kong have generally tended to add the value of pecuniary benefits to the plaintiff’s basic pay or salary, and have assessed pre-trial and post-trial loss of earnings on the basis of this overall or global figure …”

Nevertheless, Mr Kwok has also put in a written argument which goes beyond what was asked for at the time, to which Mr Lam has taken the sharpest objection.  Mr Kwok has invited me to consider deductions for the expenses incurred in earning lost income and deductions for tax liability.  Plainly, such considerations are relevant but, as Mr Lam has rightly observed in his written reply that quite apart from going beyond the scope of what was allowed by me, if I where to have regard to this he will have been deprived of dealing with this in evidence with his client and researching the point properly and addressing me on this.  I agree — it has been something of a feature of the Defendant’s case that things have happened at the very last moment.  At the start of the trial, Mr Kwok wished to amend the Answer to the Statement of Damages which I allowed in part.  When the evidence closed and the parties were asked to submit a note of their speeches before the resumed hearing, for which a lot of time had been allowed, Mr Kwok was only able to put in an uncompleted “work in progress” which was supplemented on the day set aside for speeches and now, almost as an afterthought, these points have now been taken.  Notwithstanding that such matters are highly relevant, I am not going to entertain these written submissions in this way.  They should have been raised properly before the trial so that the Plaintiff could respond to them by calling evidence and preparing appropriate calculations based on that evidence.

TOTALS

Costs Nisi

59.  These will be to the Plaintiff on a party and party basis together with legal aid taxation in the event that the Plaintiff has a legal aid certificate.