LI MAN CHI v. OR CHUN KIT

HCPI 877/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 877 OF 2013

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J U D G M E N T

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1.  This personal injuries action was listed before me on 13 May to last two days with both liability and quantum at issue.

2.  On the first morning, Mr Patrick Lim, counsel for the defendant, conceded liability having taken a realistic view of the facts and circumstances — the plaintiff was a passenger in the defendant’s motor vehicle which he had driven at a very excessive speed and caused it to collide at a road junction with a light van which was turning across the dual carriageway.  The fact that the driver of that vehicle probably bore some degree of responsibility for the collision was immaterial.  He had not been joined in the action.

3.  After a short adjournment, both counsel, Mr Wong Kit Kwong was acting for the plaintiff, were able to agree a substantial number of the heads of loss and damage which I will set out below.

AGREED HEADS OF LOSS AND DAMAGE

4.  The followings heads are agreed:

(1)	Pain and suffering and loss of amenity	$850,000
(2)	Past medical expenses	$130,000
(3)	Future medical expenses	$54,000
(4)	Cost of helper	$52,500
(5)	Tonic food	$20,000
(6)	Pain alleviation expenses	$15,466
(7)	Hair treatment	$10,000
(8)	Travelling expenses	$20,000
(9)	In‑patient expenses	$2,157
	The running total	$1,154,123
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PSYCHIATRIC CARE

5.  The individual consultancy fee and the period of such treatment are not agreed.  Whether such care should be provided by the Hospital Authority or by the private sector is also at large.

6.  There is a joint report from the consultant psychiatrists, Dr Singer and Dr Law dated 8 May 2013.  They had had a little under three hours with the plaintiff about one month earlier, which was some two years and two months after the accident.

7.  At the time of their assessment she was attending the Psychiatric Clinic at Kowloon Hospital irregularly — once every one to three months, and seeing a Clinical Psychologist every two weeks or so.  At this stage it is important to deal with an aspect of her evidence to the effect that the psychiatric/psychological sessions last about 10 minutes, the clinician concerned changes on an irregular basis so that she has seen three or four different ones, and she often has to wait three to four hours before her session is reached.  This, on any view, is entirely unsatisfactory and she gives the very reasonable impression that she derives very little benefit from these sessions.  I will, of necessity, return to this later.

8.  Dr Singer concluded that she was suffering from post traumatic stress disorder or syndrome of a moderate degree with depressive features, attributable to the accident and her consequent injuries.  These were severe and have left her with serious disabilities and extensive searing which is inhibiting and constitutes perpetual reminders of the accident.

9.  Dr Law substantially agrees with this and adds in his prognosis an adjustment disorder with mixed anxiety and depressed mood.  As Dr Singer says this is largely semantic.  He regarded the prognosis as fair and this accords with Dr Singer’s view that without continued psychiatric treatment she will deteriorate further.  The current treatment in the public sector (Hospital Authority) has shown some improvement but her condition fluctuates.  Having seen and heard the plaintiff and considered the approach of both consultants I am quite satisfied that the most beneficial course of psychiatric treatment will be in the private sector.  It is important to note that she has returned to some form of work, although it is significantly less satisfying, productive and demanding than her previous occupation as a child‑care/kindergarten teacher for which she was trained, qualified and professionally committed.  As Dr Law conceded, although she is capable of returning to that work from his psychiatric viewpoint, that option is “mainly limited by her physical disabilities”.

10.  My firm view is that Dr Singer’s assessment of 20 sessions at two weekly intervals is the better course.  The total cost will be $90,000 which indicates the cost of a session is about $4,500.  It may be that Dr Singer is somewhat optimistic about the number of sessions which indicate a time‑scale of eight to nine months, but having heard her realistic and balanced assessment of the limitations of public sector treatment I think that she will cope well after such treatment.  Accordingly I award $90,000 under this head of damage

PAST LOSS OF EARNINGS (TO DATE OF TRIAL)

(1) 10 February 2011 to 31 March 2011

11.  This covers the first period of her new employment with HK Sheng Kung Hui Kei Oi Nursery School of the Welfare Council at an agreed salary of $15,875.  A new salary level was to come into force on 1 April 2011.  Her pre‑accident salary had been $15,398.59 monthly so the new salary showed a modest increase when she was due to start but the increase to come into effect was almost $1,000 monthly.

12.  The loss for this short period of calculation totals $27,781.25.

(2) 1 April 2011 to 31 January 2012

13.  The defence contend that there is no evidence that the school concerned had its salary scales based on the civil service scales.  The plaintiff’s evidence which was not seriously challenged supported the civil service basis and I accept this.  The pay scale of the school as set out in their letter of 11 January 2013 supports this and therefore I am able to rely upon the Master Pay Scales in the schedules provided.  This factor must therefore guide the assessment of the basic monthly loss for the ensuing years.

14.  For this period the loss is therefore at point 10, $180,517.05.

(3) 1 February 2012 to 31 March 2012

15.  I accept the argument that point 11 salary should be the multiplicand for this period of loss giving her an increase on the pay scale to $17,895 monthly.  Her loss for this period will therefore be $37,579.50.

(4) 1 April 2012 to 31 January 2013

16.  The multiplicand for this period will reflect the annual increase on the civil servant scale.  It is $18,935 monthly.  The loss is therefore $202,793.85.

(5) 1 February 2013 to 31 March 2013

17.  I accept that she would have moved up to point 12 for this period, giving her $20,115.  The loss is therefore $41,537.48.

(6) 1 April 2013 to 1 December 2013

18.  The annual revision bringing the monthly salary up to $20,905 is appropriate.  The loss for this period will therefore be $179,260.37.  The cut‑off at 1 December 2013 reflects her return to work, before the expiry of sick leave.

(7) 2 December 2013 to 31 January 2014

19.  Her return to work before her sick leave expired (some two months hence) reflects this lady’s keenness to immerse herself in work as close to her area of skill and professional commitment as possible.  The nature of the work fall someway short of what she wanted and for which she was trained, and of course, of the level of remuneration which she had previously enjoyed.  But her physical injuries necessarily imposed limitations on the extent to which she could be involved in the physical aspects of kindergarten education.  New employed as a teaching assistant at less than half the salary she had enjoyed before the accident, she still had to have time off for medical treatment and check‑ups.  At this stage her monthly loss became roughly $12,905.  The loss for this short period is $27,552.17.

(8) 1 February 2014 to 31 March 2014

20.  At the beginning of this period she would have been entitled to a base of 13 in her salary incrementally.  For this two month period her loss is $29,746.50.

(9) 1 April 2014 to 31 August 2014

21.  The annual adjustment takes effect at the beginning of this period.  The loss for the period is therefore $79,852.50.

(10) 1 September 2014 to 30 April 2015

22.  She received a modest increase in salary at the beginning of this period.  The loss however continues and totals for this period $125,748.

23.  I am entirely satisfied that she has done her best to mitigate her loss.  That is in keeping with her sustained desire to get back into the educational milieu.

24.  Mr Lim, for the defendant, broached the possibility of her being retrained over a one or two year period to obtain the necessary qualification as a primary school teacher.  She was not confident of being able to meet this challenge.  In any event children of primary school age are no less boisterous and demanding and would still pose a significant risk to her.  There are activities which primary school teachers are called upon to carry out inside and outside the classroom, and I am satisfied that she could not undertake those without risk to herself.  Her duty to mitigate her loss does not extend to retraining for another career with its probationary period and essential break in employment.  Having deprived her effectively of her chosen career for which she was obviously well‑regarded, the defendant cannot call upon her to start training again in another direction.

25.  She has sought other more remunerative jobs (for which she is probably over‑qualified) but her physical limitations and need for continuing medical supervision, as well as the residual psychological/psychiatric problems, have most probably discouraged potential employers.  Competition in the workplace remains high and although over‑qualified for the posts for which she has applied, experience and commonsense dictate that the fit applicants who do not require time off work and are fully mobile, will always have the edge on her.

26.  The total of her past loss of earnings is: $932,368.67.

FUTURE LOSS OF EARNINGS

27.  I have already set out the principal criteria to be borne in mind when applying one’s mind to the multiplier and multiplicand.

28.  It is reasonable to assume that the plaintiff would reach point 18 on the Master Pay Scales in five years time.  It is not to be forgotten that this lady had a consistent employment record in her chosen field.  She had been employed from September 2001 to August 2009 with a form of reference that described her as a loyal employee by Lok Sin Tong Tang Tak Lim Kindergarten.

29.  At present her continuing loss is about $15,000 monthly net.  In five years time it will be about $20,000 allowing for some increase in salary for her current job as teaching assistant.

30.  She is almost 35 years of age.  The earliest age at which she would retire in a career of this nature is 55 years.  It is known that well‑trained, committed and experienced kindergarten staff tend to be highly valued.  That would give her at least another 20 working years.  I think it is quite likely that she would have continued for a few years after that.  There cannot be an exact scientific or mathematical approach.  Crystal ball‑gazing is always uncertain by its very nature but even allowing for imponderables a fair multiplier would be 18 and this should be applied to a continuing loss which reflects short term increases in the salary which she has lost.

31.  A continuing loss of $15,000 monthly is a fair figure and that is the multiplicand to which is to be applied the multiplier of 18.

32.  The future loss is therefore $15,000 x 12 x 18 = $3,240,000.

LOSS OF EARNING CAPACITY

33.  On the strength of the medical reports, aided by the photographs of the principal areas of major, severe injury, which themselves speak more eloquently than the written word of what has happened and what will continue to be problematic for her, there is a real risk that she may not be able to sustain the appointment as teaching assistant.  I am satisfied that she will try and hold on to it however difficult that may be for her.  Quite apart from her physical problems which could cause increasing and more severe problems necessitating absence for treatment or otherwise she may find that younger and more energetic potential colleagues are able to do her work more consistently. As she gets older her problems will occasion more discomfort and limitations, not less.

34.  This forms a clear basis for a loss of earning capacity and an award on the Smith v Manchester/Meyrick v Reyrolle basis: a loss of this reduced salary, currently $8,240 monthly, amounts to $98,880 annually.  I think Mr Wong’s suggestion of $100,000 is rather too modest.  The risk is, in my view, on the medical evidence and having seen her, greater than that and the figure I award is $200,000.

35.  Attached to this judgment is a schedule of the individual items of the award including those agreed.  The total is HKD$5,526,491.67.  Interest falls to be calculated, no doubt by agreement, on the relevant figures at the appropriate rates.

36.  The plaintiff will also have an order against the defendant for her costs, to be taxed if not agreed.

SCHEDULE OF LOSS AND DAMAGE
(1)	Pain and suffering and loss of amenity	$850,000
(2)	Past medical expenses	$130,000
(3)	Future medical expenses	$54,000
(4)	Cost of helper	$52,500
(5)	Tonic food	$20,000
(6)	Pain alleviation expenses	$15,466
(7)	Hair treatment	$10,000
(8)	Travelling expenses	$20,000
(9)	In‑patient expenses	$2,157
	The running total	$1,154,123
Items (1) to (9) are agreed [See paragraph 4].
(10)	Past loss of earnings	$932.368.67
(11)	Future loss of earnings	$3,240,000
(12)	Loss of earning capacity	$200,000
	Overall total	$5,526,491.67