CHEUNG MUN YI v. TAM SIU WING AND ANOTHER

HCPI 809/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 809 OF 2006

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J U D G M E N T

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Introduction

1. The plaintiff’s claim against the defendants is for damages for personal injuries sustained by her in a traffic accident on 30 September 2003 at about 8:45 am.  At that time, the plaintiff was a front seat passenger in the car registration number JR3106 (“the car”) driven by her husband along Princess Margaret Road southbound.  Following the car was a taxi registration number GK3824.  The 1^st defendant was driving a light goods vehicle registration number FG7310 along the same lane of Princess Margaret Road following the taxi.  The car stopped on reaching the junction with Chung Man Street.  The taxi which was following the car also stopped.  The light goods vehicle did not stop in time and ran into the rear of the taxi.  As a result of this the taxi went forward and hit the rear of the car causing the plaintiff to sustain personal injuries.

2. These proceedings were commenced on 19 September 2006 by the issue of the writ of summons.

3. On 24 October 2006 interlocutory judgment was entered against the defendants for damages to be assessed.

4. This is the trial of the assessment of damages.

5. The plaintiff is now 40 years old.  At the time of the accident she was 35 years old.  She was employed at that time as a Legal Counsel at the Office of the Privacy Commissioner for Personal Data (“PCO”).

6. The plaintiff was admitted as a solicitor in Hong Kong in April 1994.  From 1994 to 2000 she was a litigation solicitor in private practice in Messrs Yung Yu Yuen.  She married her husband in 1996.

7. The plaintiff joined the PCO in June 2000 as a Legal Counsel.  At that time there was only one other Legal Counsel there namely, Ms Brenda Kwok Mei Ling (“Ms Kwok”).  Later on there was also an additional temporary Legal Counsel.  The plaintiff joined the PCO on a contract for 3 years.  That contract was renewed in June 2003.

8. Ms Kwok joined the PCO in February 1997.  Although she had more experience in the PCO than the plaintiff, Ms Kwok had less post-qualifying experience as a solicitor as she was admitted to practice in July 1995. 

9. The two Legal Counsel were under the direct supervision of the head of the Legal Division namely, Mr Eric Pun (“Mr Pun”) who was the Legal Director.

10. Mr Pun left his post at the PCO in March 2003.  There was a vacancy for his post.  As a result of a restructuring, the title of Legal Director was replaced by the title of Chief Legal Counsel.

11. The plaintiff’s case is that but for the accident she would have been promoted to take over Mr Pun’s vacant post. It is her case that she would have been promoted to be Chief Legal Counsel.  Instead, Ms Kwok was promoted.  Ms Kwok became the Acting Chief Legal Counsel in October 2003 and she became the Chief Legal Counsel in February 2005.

12. In October 2003 the plaintiff also developed psychiatric symptoms.  This adversely affected her working performance at the PCO.  Her second contract at the PCO was due to expire in June 2006 but in May 2006 she was informed that her contract would not be renewed.  Her case is that but for the accident her contract at the PCO would have been renewed.

The applicable legal principles

13. The applicable legal principles are not disputed.

14. In considering whether the accident caused the physical and psychiatric illness, it is useful to bear in mind what is stated at paragraph 2-137 Clerk & Lindsell on Torts 19^th Edn as follows:

“It is not uncommon for a claimant to develop a major psychiatric condition following a relatively minor physical injury.  Provided that a causal connection (medically) can be demonstrated between the physical injury and the psychiatric condition, the defendant is liable in full for the psychiatric consequences, no matter how unforeseeable.”

15. It is also important to bear in mind that where it is established that physical injury to a claimant, who was a primary victim of the accident, was foreseeable, it is unnecessary to ask whether it was foreseeable that the claimant would suffer psychiatric injury.

16. In Simmons v British Steel plc [2004] UKHL 20 the pursuer sustained head injuries in the course of employment.  He was wearing protective head gear.  He sustained a severe blow to the head but the head injury was not as serious as it might have been.  However, the consequences of the accident were not confined to the physical injuries.  After the accident the pursuer experienced an exacerbation of a pre-existing skin condition and he developed a change in personality which resulted in a severe depressive illness.

17. In his opinion in the House of Lords, Lord Hope said at paragraph 21:

“ The fact that the pursuer sustained physical injuries in the accident for which the defenders have been found liable makes it unnecessary, applying Page v Smith [1996] 1 AC 155, to ask whether the psychiatric injury from which he has also been suffering was reasonably foreseeable.  The pursuer is in the position of a primary victim of the accident on Lord Lloyd’s analysis, which has been followed and applied in Scotland: see Fraser v State Hospitals Board for Scotland 2001 SLT 1051, per Lord Carloway.  So no distinction needs to be made between his initial physical injuries and his subsequent mental state.  The duty of care which the defenders owed to the pursuer extended to the psychiatric symptoms as well as to the physical consequences.  They must take their victim as they find him, so the aggravation of his psoriasis and the anger which led to his depressive mental illness can both be assumed to fall within the scope of their liability, so long as there was a causal connection between these symptoms and the accident.”

18. As Lord Hope said at paragraph 18:

“ …………   The general rule is that it must be shown that the injury would not have occurred but for the act or omission of the defender.  But if a number of factors contributed to the injury it is sufficient that the contribution which the factor attributable to the defender’s fault made to the injury was material: Wardlaw v Bonnington Castings Ltd 1956 SC (HL) 26, 32 per Lord Reid.”

19. I would also refer to what Lord Rodger said in his opinion at paragraphs 55 and 56:

“ 55.   Since the pursuer in the present case actually suffered physical injuries as a result of the defenders’ fault and negligence, the starting point is that he is a primary victim in terms of Lord Lloyd’s classification.  Mr Smith argued, however, that the pursuer’s psoriasis and his depressive illness sprang not from the accident itself, but from his anger at the happening of the accident.  Hence he could not recover damages.  I see no reason to give effect to such a distinction, even supposing that it can be realistically drawn in a given case.  Regret, fear for the future, frustration at the slow pace of recovery and anger are all emotions that are likely to arise, unbidden, in the minds of those who suffer injuries in an accident such as befell the pursuer.  If, alone or in combination with other factors, any of these emotions results in stress so intense that the victim develops a recognized mental illness, there is no reason in principle why he should not recover damages for that illness.

56.   Not only is there no hint of the distinction advocated by Mr Smith in Lord Lloyd’s speech in Page v Smith, but indeed the whole thrust of the speech is to quite the opposite effect.  On Lord Lloyd’s approach, all that matters is that the defenders were in breach of their duty of care not to expose the pursuer to the risk of personal injury and that, as a result of the breach, the pursuer suffered both physical and psychiatric injuries.  The defenders are liable in damages for both types of injury and, in particular, for the exacerbation of the pursuer’s psoriasis and for the depressive illness which followed - even if those developments were not reasonably foreseeable.  Moreover, as the Second Division rightly held, 2003 SLT 62, 67E, it does not matter whether a psychologically more robust individual would have recovered from the accident without displaying either condition: the defenders must take their victim as they find him.”

20. A contribution which comes within the exception de minimis non curat lex is not material, but any contribution which does not fall within that exception must be material (per Lord Reid in Wardlaw at page 32 as cited by Lord Hope at paragraph 26 in Simmons). 

21. In the High Court of Australia in Shorey v PT Ltd (2003) 197 ALR 410 Kirby J (as he then was) succinctly stated the principle at paragraph 41:

“ It is a basic principle of the law governing the recovery of damages that a claimant does not have to prove ………. that an impugned event was “the” cause, in the sense of the one and only cause.  It is enough that the claimant shows that the event is “a” cause of the condition for which damages are claimed…….”

22. He also said at paragraph 44:

“The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly.”

23. Thus the court has to consider whether as a matter of fact the accident was a materially contributing cause of the physical injuries as well as the psychiatric illness.  The burden is on the plaintiff to show this on a balance of probabilities.

24. As to the proper approach in considering the question of causation in the light of the medical evidence, this was re-affirmed by Cheung JA in Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at paragraph 54 as follows:

“ The proper approach

54.    The approach of the court in considering the question of causation in the light of the medical evidence is stated by this court (per the late Hunter JA) in Lee Kin Kai v Ocean Tramping Co Ltd (t/a Ocean Tramping Workshop) [1991] 2 HKLR 232:

1.       a) Causation is essentially a matter for the judge and not for the doctors.

b) The judge will be assisted by the medical evidence but is not bound by it.

2.      a) The law and medicine apply different standards.

b)  In law there is a causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury.  A cause is sufficient, it does not need to be the sole cause.

c)  The doctors on the other hand practise the science of aetiology.  They look for ‘clinical cause’ or ‘irrefragable chain of causation’ which is to be proved beyond reasonable doubt or beyond any doubt.

3.  The judge when considering causation is not only entitled, but is bound to use his common sense.”

The main issues

25. The main issues are:

(1)  whether the accident was a materially contributing cause for the plaintiff’s physical injuries and psychiatric illness;

(2)  if so, whether but for the accident the plaintiff :

(a)  would have been promoted;

(b) would have had her contract with the PCO renewed in June 2006.

26. In considering whether but for the accident the plaintiff would have been promoted and whether her employment contract would have been renewed, the court will have to consider what would have happened but for the accident.  The court will have to evaluate the chance of the promotion and the chance of the renewal of the employment contract. 

27. The applicable principles in assessing the chance were recently summarized by Cheung JA in Liu Chun Kow Joe v Lee Sau Wing (Civil Appeal 304 of 2007, 16 April 2008) at paragraphs 41 to 44 as follows:

“41.  In Davies v Taylor [1974] A.C. 207 at 213, Lord Reid stated that

‘ ... You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can.  All that you can do is to evaluate the chance.  Sometimes it is virtually 100 per cent.: sometimes virtually nil.  But often it is somewhere in between.  And if it is somewhere in between I do not see much difference between a probability of 51 per cent and a probability of 49 per cent.’

42. Consistent with this approach, the English Court of Appeal in Allied Maples Group v Simmons & Simmons [1995] 1 WLR 1602 at 1610 per Stuart-Smith LJ held that

‘ Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events.  For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted.  It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff’s employer.’

43. This was expanded later in the judgment under the third category of situations which may arise where the plaintiff’s loss depends upon the action of an independent third party.

44. The three situations are best summarised by Otton LJ in Doyle v Wallace [1998] PIQR Q146 at Q149 as follows :

‘ (1) In his first category fell cases in which the defendant’s negligence consisted of some positive act or misfeasance and the question of causation was one of historical fact, in which event proof on the balance of probability prevailed.

(2) In the second category fell cases in which the defendant’s negligence consisted of an omission where caution depended not upon a question of historical fact but upon the answer to the hypothetical question “what would the plaintiff have done if there had been no negligence?”; here the answer is provided by the application of proof on the balance of probabilities.

(3) In the third category fell cases in which the plaintiff’s loss depended upon the hypothetical action of a third party, whether in addition to action by the plaintiff or independently of it; here the plaintiff need only show that he had a substantial chance of the third party acting in such a way as to benefit him.  The Court of Appeal held that the plaintiffs needed to show only that there was a significant chance, which could be less than likely, that the third party would have been prepared to offer them this protection and held that the loss of such a chance had been made out and it was assessed at 50 per cent.’

For ease of reading I have numbered the three situations.”

28. Mr Ashok Sakhrani, counsel for the defendants, did not dispute the relevant legal principles.  He, however, submitted that in considering the question of whether but for the accident the plaintiff would have been promoted and whether the plaintiff’s employment contract would have been renewed, the case fell within the first category of cases summarized by Otton LJ in Doyle v Wallace as set out above at paragraph 44 of Cheung JA’s judgment.  He submitted that the question of causation was, on the plaintiff’s case, one of historical fact and that as such the plaintiff had to prove the same on a balance of probabilities.  I am unable to accept this submission.  In my view this case falls within the third category of cases as set out above at paragraph 44 of Cheung JA’s judgment.  It seems to me that whether the plaintiff would have been promoted or whether her contract would have been renewed depended on the hypothetical action of a third party namely, the Commissioner of the PCO (“the Commissioner”).  That being so, the plaintiff need only show a substantial chance of the Commissioner acting in such a way as to benefit her.  She only needs to show a substantial chance that she would have been promoted and that her contract would have been renewed.

The witnesses

29. I heard evidence from the plaintiff and from Ms Kwok.  I found both of them to be honest, credible and truthful witnesses.  I also found them to be reliable witnesses.

The medical evidence

30. The medical evidence is not disputed.

31. By consent, it was ordered on 19 July 2007 by Master B. Kwan that the report of the plaintiff’s treating orthopaedic expert Dr Danny Tsoi (“Dr Tsoi”) dated 2 September 2004 and the report of the plaintiff’s treating psychiatrist Dr Sylvia Chen (“Dr Chen”) dated 18 August 2006 should be adduced without oral evidence.  Those reports were in evidence before me.

32. There was also a joint orthopaedic report of Dr Lam Kwong Chin (“Dr Lam”) dated 9 December 2004 and a supplemental joint orthopaedic report of Dr Lam dated 23 December 2004.  There was also a joint psychiatric report of Dr Wong Chung Kwong (“Dr Wong”) dated 28 February 2007.  Those joint reports were also in evidence before me.

33. There is no dispute that the plaintiff sustained personal injuries as a result of the accident.  She sustained relatively minor physical injures.  She was a front seat passenger in the car driven by her husband and she was wearing a seatbelt at the time.  The car was hit from behind when it was stationary.  The plaintiff dashed forward but was held by the seatbelt.

34. After the accident the plaintiff was admitted to the Accident & Emergency Department of Queen Elizabeth Hospital where the physical examination found tenderness over the neck.  The clinical diagnosis was neck sprain.  She was treated and discharged with sick leave of 4 days.

35. The plaintiff first consulted Dr Tsoi on 3 October 2003 for her persistent neck, back and left knee pain.  His preliminary diagnosis was soft tissue sprain injury of neck and back and contusion left knee.  He decided to treat her conservatively by prescribing analgesics and also arranging for physiotherapy at his clinic.

36. He treated her from October 2003 to July 2004.  On 1 December 2003 in view of static progress in his treatment of her an MRI scan of the lumbar spine was performed.  Apart from lumbar scoliosis, very likely caused by muscle spasm, no other abnormality was detected.  Based on his physical findings and the MRI report, Dr Tsoi made the clinical diagnosis of musculotendinous strain of left side paraspinal muscle.  Conservative treatment was adopted.  Despite receiving continuous analgesics and physiotherapy for a few months the plaintiff still complained of fluctuating low back pain.  Dr Tsoi recommended that she seek psychological advice as he believed that some of her symptoms were psychosomatic in origin.

37. Dr Tsoi last saw the plaintiff on 20 July 2004.  She had consulted a psychologist for counseling.  Dr Tsoi advised her to consult a psychiatrist and Dr Chen was recommended to her.

38. Dr Tsoi concluded that the plaintiff suffered from musculotendinous strain of the left paraspinal muscle of her lower back.  The symptoms were magnified by the psychological problems.  He believed that her orthopaedic condition had reached a stage of maximal medical improvement but that she still required further psychiatric treatment.

39. Dr Lam in his joint report confirmed that the diagnosis of soft tissue sprain injury of neck and back and contusion left knee was an appropriate diagnosis and compatible with the mode of the accident.  He agreed also with the conservative treatment given by Dr Tsoi.

40. Dr Lam’s assessment was done almost 14 months after the accident and at that time the plaintiff still had multiple complaints.  She complained of residual neck pain and stiffness although it had improved a lot after treatment.  On examination of the neck Dr Lam found tenderness at the midline of the cervical spine.  She had limitation in neck motion in all planes by the pain.  She had tenderness over both trapezius muscles but no paraspinal muscle spasm.  He said that clinically the neck pain was one of muscular origin with no features of radiculopathy.

41. As regards her back pain, Dr Lam said that on examination she still had tenderness at the right upper and left lower lumbar areas.  There was tenderness at the midline.  The back motion was limited by pain, particularly in extension.  He said that clinically the back pain was also one of muscular origin with no features of radiculopathy.

42. Dr Lam agreed with Dr Tsoi’s view that the clinical diagnosis should be musculo-tendinous strain of left side paraspinal muscle, that the symptoms were magnified by the psychological problem and that her orthopaedic condition had reached a stage of maximal medical improvement.

43. He considered it beneficial for her to try another 2 months’ intensive course of orthopaedic and physiotherapy treatment.

44. The plaintiff was under the care of Dr Chen from 27 July 2004.  She attended Dr Chen’s clinic regularly every fortnightly mostly occasionally at three to four weeks’ interval.

45. In her report Dr Chen deals with the history of mental symptoms, psychiatric treatment and progress as follows:

“History of Mental Symptoms, Psychiatric Treatment and Progress

In October 2003, when she was aware that she has lost the opportunity of promotion, she developed sleeping problem, which had persisted ever since.  This was perpetuated by Miss K’s attitude towards her and the hard time she gave her throughout her office hours.  This was the main reason of her being referred by Dr. Danny Tsoi to see me in July 2004.

My answers to the questions raised in your initial instruction letter are as follows:-

1) Diagnosis: Adjustment Disorder, with Anxiety and Depression

This diagnosis was made because of the very close (almost immediate) proximity of onset of symptoms to the stress.  Upset and aggrieved by 1osing her opportunity of promotion, Ms. Cheung developed the following constellation of symptoms:

§  her mood became persistently and consistently low;

§  she had pressure of worrying thoughts throughout the day;

§ these persisted at bedtime so that she had difficulty in falling asleep, so she requested the prescription of hypnotics from Dr. Tsoi;

§ even if he could fall asleep her sleep was light, she had bad dreams and woke repeatedly throughout the night.  The dreams were often about the loss of promotion and gloomy career prospect;

§  she was unable to concentrate in daytime;

§  she became more irritable, and became angry easily;

§  she became tense and nervous;

§  she had tremor of hands at times;

§  she lost interest in and was unable to derive pleasure from activities she previously enjoyed, e.g. shopping; dressing up, traveling, karaoke;

§  she sought relief in indulgence in sweet food, which resulted in weight gain which added to her sorrow;

§  she had reduced interest in sex: she had no sex with her husband for almost six months immediate1y after the accident, and since then, had infrequent sex, about once every two months, not for joy, but only out of a wife’s obligation.  She was haunted with the underlying fear that sexual activities might aggravate the injury or jeopardize recovery.

Owing to the change for the worse of her life circumstances over the past two years, her condition fulfils the criteria of a Dysthymic Disorder.”

46. She was prescribed medications namely anxiolytics and anti-depressants.  The reasons given by Dr Chen for prescribing such medication were:

(a) poor sleep affecting her concentration power and energy level which affected her performance at work;

(b)    her other symptoms as set out above affected her general functioning and reached a stage where pharmacological intervention was warranted;

(c)    she was prone to emotional outbursts beyond control;

(d)    in December 2004 she was so depressed that she thought about jumping from height as a suicidal act;

(e) her negative emotions contributed to the aggravation of and delayed recovery from her neck and back pains.

47. Dr Chen said that with the medication the plaintiff’s sleep improved somewhat, her mood was lifted sufficiently to maintain a fighting spirit and carry on living and also increased her ability to control her emotional outbursts.

48. She was of the opinion that the plaintiff would probably need about two more years (from the time of her report) when with supportive psychotherapy the plaintiff hopefully would come to terms with her adverse life circumstances and find new developments in her career.  She was of the view that in her dysthmic mood the plaintiff was suffering from some reduction in efficiency in performing job duties which would improve when she found a job.

49. She also opined that all the psychological, behavioural and occupational changes in the plaintiff’s after the accident had affected the harmony of the plaintiff’s marital relationship.

50. Dr Wong examined the plaintiff in January 2007.  He asked her to describe her mood during the first few days after the accident.  She told him that she did not feel troubled.  She did not think it was any serious injury.  She told herself that she would not take much sick leave.  She returned to work two weeks after the accident.  Even on sick leave she often telephoned the office to check on progress of a project.  She was keen to get well as soon as she could.  She did not experience any anxiety.

51. Dr Wong’s mental state examination of the plaintiff and his findings are contained at paragraphs 59 and 60 of his report.  He observed that the plaintiff was in full contact with reality.  She was genuine, spontaneous and forthcoming.  She did not suffer from any delusions or hallucinations.  She did not show any psychomotor retardation or agitation.  Her mood was depressed and bitter.  She expressed low self-esteem.  She felt hopeless and helpless about her future.  She clearly expressed that she was unable to let go of her tragic past.

52. Dr Wong’s psychiatric diagnosis was that she did not suffer from post traumatic stress disorder.  However, after the first two weeks and despite daily physiotherapy she did not get better.  She started to feel worried.  The catastrophic blow was the loss of her promotion that happened about one month after the accident.  This loss also shattered her self-esteem and her faith in herself.  She was a very success driven person and had not experienced any major setback in life until then.  Starting from November 2003 she started to suffer from adjustment disorder with depressed mood.

53. Dr Wong said that the adjustment disorder with depressed mood deteriorated to become dysthymic disorder sometime in mid 2004.  This is a mood disorder characterized by depressed mood together with biological symptoms, in the plaintiff’s case, of insomnia, over-eating, fatigue; cognitive symptoms, in the plaintiff’s case, of poor concentration, impaired thinking and judgment, and other psychological symptoms such as low self-esteem and feelings of hopelessness. 

54. Dr Wong emphasized that he agreed with the diagnosis of Dr Chen.

55. He also commented that from the psychiatric angle, it was well recognized that pain was a common concomitant of psychiatric disorders, such as dysthymic disorder.  When the plaintiff was most depressed the pain was also most severe.

56. Dr Wong opined that the plaintiff was able to return to work as a lawyer but her working capacity was compromised to some extent.  The best thing for her was to get back to work.  He was of the view that her prognosis depends on psychiatric treatment and her voluntary choice to let go of her losses.  He was also of the view that at the end of two more years (from the time of his report in February 2007) she would no longer suffer from any impairment due to her psychiatric disorder.  He recommended that she continue with treatment by Dr Chen for two more years.

Main Issue (1)

Materially contributing cause

57. It is not disputed that the accident was a materially contributing cause for her physical injuries and I so find.

58. Was the accident a materially contributing cause for her psychiatric illness?  It was submitted on behalf of the defendants that the plaintiff has failed to discharge her burden to show that it was.  It is, however, important to bear in mind that the defendants do not assert any positive case as to what caused the plaintiff to develop her psychiatric illness.  They simply rely on a failure of the plaintiff to prove that the accident was a materially contributing cause.

59. The undisputed fact is that before the accident the plaintiff enjoyed good health with no sleep problems or psychiatric problems. 

60. There is no doubt that the plaintiff was bitterly disappointed at not being promoted and took the news of the promotion of Ms Kwok badly.  This was, as Dr Wong said, a catastrophic blow to the plaintiff. 

61. As Dr Chen said, the plaintiff’s mental condition was definitely precipitated by the adverse changes in her career as arranged by her seniors consequent on her sick leave and health condition caused by the accident.  Dr Chen said that the traffic accident had ruined her career. 

62. Dr Wong also said in his report that in order to accurately appraise the psychiatric sequelae of the accident, it was essential to understand how the plaintiff perceived the accident and the subsequent chain of events.  The plaintiff felt that she had been very unfairly treated and was unhappy.  As Dr Wong said, her mood was depressed and bitter.  She expressed low self-esteem.  She felt hopeless and helpless about her future.

63. Dr Wong said that the nature of the accident and the physical trauma directly brought about by the accident appeared to be mild, yet the accident seems to have totally derailed the plaintiff from her previous successful and healthy way of life.  The plaintiff also said that she hated the accident as it ruined her career and her life.

64. Taking the medical evidence into account and applying common sense it seems to me that the happening of the accident was a materially contributing cause of her psychiatric illness and I so find.  I am satisfied that the plaintiff has discharged her burden of showing on a balance of probabilities that the psychiatric illness was also caused by the accident.  The main issue (1) is resolved in the plaintiff’s favour.

Main Issue (2)

65. The plaintiff’s case is that the plaintiff’s loss of promotion was caused by the physical injuries whereas the loss of her employment at the PCO was caused by the physical injuries and the psychiatric illness.  It is plain that the psychiatric illness only started after the plaintiff learnt in October 2003 that she would not be promoted.

66. As the plaintiff said in evidence, joining the PCO led her to a new life.  She became the co-ordinator of international projects and had opportunities to draft Codes of Practice.  She left private practice deliberately to join the PCO as she felt that she wanted to make a contribution to society in the public sector.  This job gave her satisfaction.

67. After Mr Pun left the PCO in March 2003 Ms Kwok was appointed Acting Senior Legal Counsel in April 2003.  Basically, she took over Mr Pun’s duties.  She was basically supervising the daily operation of the whole Legal Division.  This included supervising the plaintiff.  Ms Kwok said that she was the Acting Senior Legal Counsel for administrative convenience which, as she explained, meant that when there was a vacancy somebody had to handle the duties.  Ms Kwok remained as Acting Senior Legal Counsel until October 2003 when she became the Acting Chief Legal Counsel.  She explained that despite the public recruitment exercise the Commissioner had not been able to find a suitable candidate.  As Ms Kwok had less than the required 10 years post-qualification experience for the post of Chief Legal Counsel at that time, she had to be the Acting Chief Legal Counsel from October 2003 until she attained the requisite post-qualification experience.  She was appointed Chief Legal Counsel in February 2005.

68. It is clear from the appraisal reports of the plaintiff to which I was referred that there was a steady improvement in the plaintiff’s work performance over the years before the accident.  Obviously her immediate superior Mr Pun thought highly of her and the Commissioner agreed with his assessments.   In the appraisal reports prior to the accident, the assessment of her overall performance was improved from “very effective” to “outstanding”.

69. In the appraisal report signed by Mr Pun on 31 May 2002 he stated that efforts were being made to increase the spectrum of work of the plaintiff. He also praised her for her strengths which included her thoroughness, strong sense of responsibility and keen mind.  He also expressed his strong satisfaction with her consistently high standard of her work.  His positive and encouraging appraisal of the plaintiff received the full endorsement of the Commissioner.

70. I believe the plaintiff when she said in cross-examination that Mr Pun had once told her that he would recommend her to the Commissioner to be promoted.  This was before writing his appraisal dated 17 May 2003.  It was submitted that she was not reliable in giving this account as it had not been mentioned in chief or in her witness statements or in the accounts given to the doctors.  I have considered the criticism of her evidence made on behalf of the defendants.  However, I believe the plaintiff and find that Mr Pun did say to her, as she said in evidence, that he would recommend her for promotion.  

71. It is also important to bear in mind that in the case of the plaintiff Mr Pun specifically stated in his assessment dated 17 May 2003 that she was “suitable for advancement”.  Mr Pun did not say anything similar in any of the appraisal reports of Ms Kwok.  In his said assessment of the plaintiff he also praised her for performing all of her duties with flair and with providing him with invaluable assistance in the drafting of a code.  He also re-iterated that efforts were being made to increase the spectrum of work of the plaintiff.

72. By his assessment dated 19 June 2003 the Commissioner agreed with Mr Pun’s assessment of the plaintiff.  He also stated that with broader experience and a wider spectrum of work, the plaintiff had the potential to make significant contributions to the PCO.

73. It seems to me, and I so find, that as part of the efforts that were made to increase the plaintiff’s spectrum of work, in June 2003 she was assigned to take up two important international projects namely, the Asia-Pacific Economic Co-operation Privacy Project (“APEC project”) and Asia Pacific Telecommunity Privacy Project (“APT project”).  These were in addition to her involvement in an important local project i.e. the revision of the Code of Practice on Consumer Credit Data.

74. The Commissioner also took her along with him instead of Ms Kwok to attend international conferences in Sydney and Melbourne in Australia in September 2003.  This was shortly before the accident.

75. I was reminded of the plaintiff’s evidence in cross-examination that the progression of her psychiatric symptoms after October 2003 included insomnia, impaired concentration, impaired attention and perhaps impaired memory.  I have considered the defendants’ criticism of the plaintiff’s evidence.  However, I believe the plaintiff and accept her evidence when she said that the Commissioner introduced her at the international conferences in Australia in September 2003 as “the best legal counsel” and “future division head of PCO”.  Either the Commissioner did introduce her as she has described or he did not.  She was in my judgment telling me the truth and her evidence is credible and reliable.  I bear in mind that Dr Wong in his report made it clear that although the plaintiff was suffering from the psychiatric illness with the symptoms that he and Dr Chen described, the plaintiff was not at any time suffering from any delusions or hallucinations.

76. It is also important to bear in mind what the Commissioner told the plaintiff in October 2003.  The details are recorded in the report of Dr Wong at paragraph 30:

“About the same time, in October 2003, one day the Commissioner talked to her in person.  She recalls that conversation:

“He talked to me in person. He told me that he looked highly on me and that he and I worked very well together. He said he realized that the Code of Practice on Consumer Credit Data was a very difficult task and he felt very glad that I did it so successfully.  He then said nevertheless he felt very worried about the APEC project and so he had to make a very painful decision.  He told me to get well first and to think of promotion later.  He had decided to promote my junior to become the ActingDivision Head with immediate effect.” ”

77. I am satisfied that what she told Dr Wong was true.  Although Ms Kwok was not in fact her junior in the PCO she was, however, her junior in terms of post qualification practice.  It was plain that the Commissioner regarded the decision to promote Ms Kwok instead of the plaintiff as a painful decision. 

78. It was also submitted on behalf of the defendants that the plaintiff confused events and that she was not a reliable witness.  I am unable to accept the defendants’ submissions.

79. According to Dr Chen’s report the plaintiff informed Dr Chen that she was “immediately discharged” from the APEC project after the accident.  In evidence the plaintiff confirmed that she was only relieved of the APEC project and the APT project in late 2003 or early 2004 which was what she had told Dr Wong as recorded by him in his report. She said that the Commissioner expressed his worry about the projects when speaking to her in October 2003 informing her of his “painful decision”.  I do not regard the discrepancy as an important one.  This is a minor discrepancy.  In October 2003 she had been told that she would not be promoted and no doubt she was bitterly disappointed.  The loss of promotion must have been foremost in her mind at the time.  I am satisfied that the discrepancy as to the sequence of time when she was actually relieved of duties concerning the APEC and APT projects does not affect her credibility and reliability as a witness.

80. The plaintiff’s case is that it was virtually certain that she would have been promoted.  However, there is no evidence of any decision having been made by the Commissioner prior to the accident as to Mr Pun’s successor.  I am unable to accept that it was virtually certain that she would have been promoted.

81. It seems to me, and I so find, that the plaintiff had a good chance of being promoted to the post of Chief Legal Counsel but for the accident.  I have come to this view despite the fact that Ms Kwok’s had more experience than the plaintiff in the PCO and also had international exposure at international conferences earlier than the plaintiff.  I regard the fact that the Commissioner had introduced the plaintiff as “the best legal counsel” and the “future head of the PCO” at the international conferences in Australia in September 2003 as cogent evidence that the plaintiff had a good chance of the promotion ahead of Ms Kwok. 

82. As I have found that the Commissioner did speak to the plaintiff in October 2003 in the manner as set out in Dr Wong’s report, it seems to me that quite clearly the Commissioner was worried about the plaintiff’s health.  He told her that he was very worried about the APEC project.  He told her to get well first and to think of promotion later.  He told her that he had to make a “painful decision” to promote Ms Kwok to become the Acting Division Head with immediate effect.  Although at that time the plaintiff was expecting to recover from her physical injuries soon, her physical injuries did cause the Commissioner some concern.  On the evidence the plaintiff attended Dr Tsoi’s clinic on 14 occasions just in October 2003 as shown in the undisputed Table 1 to Mr Lam’s opening.  She returned to work about two weeks after the accident.  She had to attend physiotherapy at Dr Tsoi’s clinic and for this purpose she had to leave her office early to go over to his clinic in Kowloon.  She was also wearing a neck collar at the time and she had difficulty in walking according to Ms Kwok.  Although the plaintiff herself considered that she would recover soon from her injuries it is obvious that the Commissioner did not share this view.  Hence the conversation that he had with her in October 2003.

83. I am satisfied on a balance of probabilities that the physical injuries sustained by the plaintiff as a result of the accident caused her to lose the chance of a promotion which, as I have said, was a good chance.  I am satisfied that the accident caused her to lose that chance.

84. There is no dispute that after the onset of her psychiatric illness her condition deteriorated.  Dr Chen has described in detail her mental state and the symptoms she displayed.  There can be no doubt that her work performance was adversely affected.  From the post-accident appraisal reports after the accident to the time she left the PCO the overall performance deteriorated from “outstanding” before the accident to “effective” and then to “moderate”.

85. I was also referred to the plaintiff’s heated written response to Ms Kwok’s appraisal of her after the accident and Ms Kwok’s reply.  It is not necessary to determine whether or not the details of the plaintiff’s complaints were made out.  Needless to say, I accept Ms Kwok’s evidence that her treatment of the plaintiff was fair and considerate in view of the plaintiff’s medical condition although the plaintiff may not have considered that to be so at the time.  The plaintiff was prone to emotional outbursts.  As she said, she felt that her temper and patience deteriorated.  She easily got irritated or angry over trivial matters.

86. The plaintiff accepted in evidence that she may have been oversensitive and overreacted to the adverse comments of Ms Kwok in the appraisal reports after the accident.  I find that she was probably being oversensitive and had overreacted to Ms Kwok’s comments and this was as a result of her psychiatric illness.

87. Her psychiatric illness undoubtedly adversely affected her work performance after the accident.  Not surprisingly, her contract was not renewed in June 2006.  I am satisfied that but for the accident there was a good chance that the plaintiff’s contract with the PCO would have been renewed.

88. I would assess the plaintiff’s loss of the chance of promotion and the loss of the chance of renewal of her contract with her PCO to be as high as 70%.  So there will have to be a discount of 30% on the following heads of damages: past loss of earnings and MPF benefits, loss of congenial employment and future loss of earnings and MPF benefits.

Damages

89. I am satisfied that the plaintiff is entitled to claim damages under the following heads:

(1) General damages for pain, suffering and loss of amenities (“PSLA”);

(2) Past loss of earnings and MPF benefits;

(3) Loss of congenial employment;

(4) Future loss of earnings and MPF benefits;

(5) Special damages; and

(6) Future medical expenses.

PSLA

90. The surveillance tape Exh D1 which was introduced in evidence did not provide assistance to me.  The plaintiff’s case is that she was involved in a relatively minor traffic accident which did not cause her serious physical injuries.  However, she did develop psychiatric illness as a result of injuries in the accident.  It has never been suggested by anyone that her physical injuries and psychiatric illness were not genuine.  Exh D1 is not particularly helpful.  It does not take matters any further.

91. The plaintiff was unemployed from June 2006 until May 2007 when she was able to secure employment as an inhouse lawyer with Evergo Holdings Ltd. (“Evergo”).  She is now the head of the Legal Department earning a salary of $90,000 per month.

92. She said in evidence that as she is now employed in her present job she feels much happier.  As a result although she still consults Dr Chen she does so less frequently.  She is expected to continue to need treatment until about February 2009.  Hopefully with the end of this litigation she will be able to let go off her tragic past.  She said that she was willing to follow the recommendations of Dr Chen and Dr Wong.

93. According to Dr Wong the plaintiff should by early 2009 no longer suffer from any impairment due to psychiatric disorder.

94. It is also clear on the evidence that after the accident her marital relationship with her husband deteriorated as she had less frequent sexual activities with her husband due to the pain she experienced in her back.

95. After the accident she also lost interest in her shopping activities which she used to enjoy before the accident.  She also lost interest in dressing up, reduced her social contacts with family and friends, and also lost her previous interest in traveling for leisure.

96. Both counsel referred me to a number of authorities on PSLA.  Each case depends on its own facts.

97. In my judgment a reasonable sum for PSLA would be $400,000 and I award this sum.

Past loss of earnings and MPF benefits

98. The calculations for past loss of earning and MPF benefits are not disputed.  This is based on the undisputed evidence before me which I accept and the plaintiff’s statement of calculations signed by both counsel.

99. The plaintiff’s total salaries would have been:

(a) from 1 November 2003 to 31 December 2003 (2 months) the amount of $197,190 ($98,595 x 2);

(b)    from 1 January 2004 to 31 December 2004 (12 months) the amount of $1,147,476 ($95,623 x 12);

(c) from 1 January 2005 to 31 April 2006 (16 months) the amount of $1,482,400 ($92,650 x 16);

(d)    from 1 May 2006 to 31 March 2007 (11 months) the amount of $1,048,850 ($95,350 x 11); (there being 1 increment);

(e) from 1 April 2007 to 30 April 2007 (1 month) the amount of $100,100; (there being an adjustment in the pay scale);

(f)  from 1 May 2007 to 30 May 2008 (13 months) the amount of $1,341,600 ($103,200 x 13); (there being 1 further increment);gh

the total of (a) to (f) comes to $5,317,616.

100. In addition to the basic salary the plaintiff would also have been entitled to cash allowances.  Had the plaintiff been promoted she would have received cash allowances as follows:

(a) from 1 November 2003 to 30 April 2004 (6 months), the monthly cash allowance would have been 22.21% of the mid-point salary of MPS 40 – 44 (i.e. $15,225) and the cash allowance for this period would have been $91,350 ($15,225 x 6);

(b)    from 1 May 2004 to 30 Apr 2007 (the first 3 years’ contract as Chief Legal Counsel)(36 months), the amount of $648,000 ($18,000 x 36);

(c) from 1 May 2007 to 30 May 2008 (the first 13 months under the second 3 years’ contract), the amount of $214,500 ($16,500 x 13);

the total of (a) to (c) comes to $953,850.

101. The employer’s contribution to the MPF from 1 November 2003 to 30 May 2008 (55 months) comes to $55,000 ($1,000 x 55).

102. The plaintiff would also have been entitled to gratuity at 15% of her basic salary at the end of her 3 years contract.  She would have continued to receive this at the end of each 3 years contract.  Had the plaintiff been promoted she would have received gratuity of $579,118.60 according to the statement of calculations.  This is made up as follows:

(a) for the contract commencing from 1 June 2003 to 30 April 2004:

(i)   from 1 June 2003 to 31 December 2003 (7 months) the sum of $75,064.50 ($71,490 x 15% x 7);

(ii) from 1 January 2004 to 30 April 2004 (4 months) the sum of $41,604 ($69,340 x 15% x 4);

this comes to the sub-total sum of $116,668.50;

(b)    for the 3 years’ contract from 1 May 2004 to 30 April 2007;

(i)   from 1 May 2004 to 31 December 2004 (8 months) the amount of $114,747.60 ($95,623 x 15% x 8);

(ii) from 1 January 2005 to 31 April 2006 (16 months) the amount of $222,360 ($92,650 x 15% x 16);

(iii)   from 1 May 2006 to 31 March 2007 (11 months) (one increment) the amount of $157,327.50 ($95,350 x 15% x 11);

(iv)   from 1 April 2007 to 31 April 2007 (1 month) (adjustment in pay scale) the amount of $15,015 ($100,100 x 15%);

  this comes to the sub-total sum of $509,450.10;

(c)    before deducting the employer’s contribution to MPF the total sum of (a) and (b) comes to $626,118.60.  After deducting the employer’s contribution to MPF the past loss of gratuity that she should have received comes to $579,118.60 ($626,118.60 - $47,000). 

103. Thus, the plaintiff’s total past income she would have received including employer’s contribution to MPF, cash allowances and gratuities should be $6,905,584.60 ($5,317,616 + $953,850 + $55,000 + $579,118.60).

104. From that sum must be deducted how much the plaintiff actually made in the period before trial.

(a) from 1 November 2003 to expiry of contract at PCO on 31 May 2006:

(i)    basic salaries and cash allowances received:

(aa)   from 1 November 2003 to 31 December 2003 (2 months), the amount of $173,430 ($86,715 x 2);

(bb)   from 1 November 2004 to 31 December 2004 (12 months), the amount of $1,014,780 ($84,565 x 12);

(cc)  from 1 January 2005 to 31 May 2006 (17 months), the amount of $1,401,055 ($82,415 x 17);

the total basic salaries and cash allowances received comes to $2,589,265;

(ii) employer’s contribution to MPF for these 31 months received comes to $31,000 ($1,000 x 31);

the total of (i) and (ii) comes to $2,620,265.

(b)    from 18 May 2007 to 30 May 2008 when the plaintiff worked for Evergo

(i)   basic salaries received:

(aa)   from 18 May 2007 to 17 August 2007 (3 months) the amount of $225,000 ($75,000 x 3);

(bb)  from 18 August 2007 to 31 October 2007 (2¹⁴/₃₁ months) the amount of $190,000 ($77,500 x 2¹⁴/₃₁);

(cc)  from 1 November 2007 to 31 March 2008 (5 months) the amount of $410,000 ($82,000 x 5);

(dd)   from 1 April 2008 to 30 May 2008 (2 months) the amount of $180,000 ($90,000 x 2);

the total basic salaries received from Evergo comes to $1,005,000.

(ii)  bonuses received equivalent to 1.5 months salary on a pro-rata basis from 18 May 2007 to 17 May 2008.  Her average monthly salary for this 12 months period was $80,362.90.  The bonus should be $120,544.35 ($80,362.90 x 1.5);

(iii)    employer’s contribution to MPF received at 5% of her salaries, the amount comes to $50,250 ($1,005,000 x 5%);

the total sums received under (i), (ii) and (iii) come to $1,175,794.35;

105. The plaintiff also received $335,211 for gratuity for the 3 years contract with the PCO from 1 June 2003 to 31 May 2006. 

106. The total actual income received by the plaintiff comes to $4,131,270.35 ($2,620,265 + $1,175,794.35 + $335,211).

107. Hence the total past loss of earnings and MPF benefits come to $2,774,314.25 ($6,905,584.60 - $4,131,270.35).

108. Applying a discount of 30% for the loss of the chance the award for past loss of earnings and MPF benefits is $1,942,019.97.

Loss of congenial employment

109. It is well recognized that this is a separate head of claim.  An award may be made when the plaintiff has had to give up a job which she enjoyed and which gave her satisfaction.

110. The plaintiff relies on Wong Sau Lai v Cathay Pacific Airways Ltd HCPI 111/2002, 24 October 2003 where A Cheung J awarded the plaintiff a cabin attendant aged 30 at the time of the accident $120,000 for loss of congenial employment. 

111. I am satisfied that the plaintiff is entitled to claim damages under this head.  She obviously enjoyed her job at the PCO very much before the accident.  It was a job which gave her pleasure and satisfaction which she had to give up as her contract was not renewed.  In my view a reasonable award for this head is $150,000 as claimed.  However, this has to be discounted by 30% making an award of $105,000 for this head.

Future loss of earnings and MPF benefits

112. The multiplicand should be $29,430.

113. This is made up as follows:

if the plaintiff had been promoted and continued to work in the PCO her present monthly income including cash allowance, employer’s contribution to MPF and gratuity would have been:

(a) basic salary $103,200;

(b)    cash allowance $16,500;

(c) employer’s contribution to MPF $1,000;

(d)    gratuity (103,200 x 15% - $1,000 employer’s contribution to MPF) in the monthly sum of $14,480;

the total of (a) to (d) comes to $135,180.

114. The plaintiff’s present actual monthly income is:

(a) basic salary $90,000;

(b)    bonus (1.5 months salary per year), $11,250 ($90,000 x 1.5¸12);

(c) employer’s contribution to MPF, $4,500 ($90,000 x 5%);

the total of (a) to (c) comes to $105,750.

115. Hence, the multiplicand comes to $29,430 ($135,180 - $105,750).

116. It was submitted by Mr Lam that a reasonable multiplier for a plaintiff who is now 40 years who would be expected to work until retirement at 60 years of age would be 12.  I agree.

117. It was also submitted that a reduced multiplier of 6 should be adopted as this is the usual approach to give effect to various contingencies. 

118. In Joan Carol Boivin v Wong King Yin and another HCPI 195/2000, 14 February 2001 Suffiad J applied a reduced multiplier of 4 on the ground that the plaintiff’s business grew since the accident and that the future loss was connected and relative to the neck pain which would persist for another 2 to 3 years.

119. In Lee Yuen Ngan v Amy Lawrence v Lau Wing Hop HCPI 223/1999 4 June 2001, Suffiad J reduced the multiplier from 14 to 7 on the ground that upon psychiatric treatment the plaintiff may overcome her psychiatric condition in 5 years and it may well take another 5 years for her business to be put back on the footing that it would have been but for the accident.

120. Dr Wong was of the opinion that at the end of two more years from his report (i.e. around February 2009) provided the plaintiff was willing to let go of the past events, she will no longer suffer any impairment or loss of earning capacity due to psychiatric disorder.  Mr Lam submitted that even after February 2009 it would take some time for her income to be put back on the footing that it would have been but for the accident. 

121. I accept that it is reasonable to allow for a period beyond February 2009 in adopting a reduced multiplier.  However, I am unable to accept that a reduced multiplier of 6 is reasonable.  In my judgment, a reduced multiplier of 4 should be adopted.  Thus loss of future earnings and MPF benefits should be $1,412,640 ($29,430 x 12 x 4).  Applying the same discount of 30% the award for loss of future earnings is $998,848.

Special damages

(i)  Medical expenses

122. I am satisfied that the plaintiff has incurred medical expenses in the total sum of $189,320 as set out in the Tables to the plaintiff’s opening which amounts were not disputed.  These are as follows:

(a) Dr Tsoi: $20,830;

(b)    Dr Au Ting Wah: $24,280;

(c) Acupuncture treatment: $20,800;

(d)    Chinese herbalist: $6,590;

(e) Dr Chen: $116,820.

123. The plaintiff’s evidence was that she sought further physiotherapy treatment from the clinic of Dr Au Ting Wah.

124. She also gave evidence that she also sought treatment from a Chinese herbalist as she thought that it would help her sleeping problem.  But she discontinued that treatment when she found that it did not help her.  The amount claimed for this is the modest sum of $6,950.

125. I would allow all the medical expenses in the total sum of $189,320 as in my view these were reasonably incurred as a result of the accident.

(ii)  Travelling expenses

126. The claim is for $10,000.  The plaintiff spent the total sum of $9,874.80 for taxi fares in attending treatments and medical consultations.  I would allow this sum.

(iii)  Tonic food

127. The claim is for $29,900.  The defendants agree this item to the extent of $10,000 which in my view is a reasonable sum.  I would allow $10,000 for this item.

(iv)  Aids and equipment

128. The sum of $105 claimed is agreed and I would allow this sum.

(v)  Car repair costs

129. The claim is for $11,071.60.  I am satisfied that the repairs were carried out and this should be allowed in full.

(vi)  Car rental

130. The claim for $2,000 for this item is agreed and I would allow this sum.

131. The total special damages that I award are $222,371.40.

Future medical expenses

132. This has been agreed by the defendants to the extent of $22,080 and the plaintiff accepts this sum.  As this has been agreed, I shall allow this sum.

Conclusion

133. The total award of damages is as follows:

(i)	PSLA	$400,000.00
(ii)	Past loss of earnings and MPF benefits	$1,942,019.97
(iii)	Loss of congenial employment	$105,000.00
(iv)	Future loss of earnings and MPF benefits	$988,848.00
(v)	Special damages	$222,371.40
(vi)	Future medical expenses	$22,080.00
	Total	$3,680,319.37

134. I give judgment to the plaintiff in the said sum of $3,680,319.37

135. I also award interest on the general damages for PSLA at 2% per annum from date of writ to judgment and interest on past loss of earnings and MPF benefits and special damages at half judgment rate from date of accident on 30 September 2003 to judgment.

136. I also make an order nisi that the defendants do pay the plaintiff the costs of these proceedings.