CHAN HANG YING VANESSA v. LO KA WAI

HCPI 58/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 58 OF 2012

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ASSESSMENT OF DAMAGES
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Introduction

1.  This is a personal injury claim arising out of a traffic incident occurred on 19 December 2009 (the “Incident”), when the plaintiff was travelling as a rear passage on a taxi.  In the Incident, the taxi was knocked by a private car owned by the 2^nd defendant and driven by the 1^st defendant at the material time.  As a result of the Incident, the plaintiff suffered personal injuries.

2.  The plaintiff commenced these proceedings on 20 January 2012 against the defendants.

3.  On 10 July 2012, the Court gave expert directions for the parties’ expert, (Dr Fu Wai Kee (“Dr Fu”) for the plaintiff and Dr Lau Man Tsang Richard (“Dr Lau”) for the defendants) to prepare joint medical report. 

4.  By a consent order dated 14 September 2012 interlocutory judgment on liability was entered against the 1^st defendant in favour of the plaintiff with damages to be assessed and the action against the 2^nd defendant was withdrawn.

5.  On 24 October 2014, the court granted leave for the 1^st defendant to name Dr Danny Tsoi (“Dr Tsoi”) as his expert to replace Dr Lau.  Dr Fu and Dr Tsoi prepared a joint report dated 19 November 2014 (the “Joint Report”).

6.  At the hearing, the parties applied to adduce the Joint Report as evidence at the assessment of damages without calling the makers to give oral evidence.  I granted the application.

7.  Only the plaintiff testified at the assessment hearing.

The plaintiff’s claim

8.  In the re-revised statement of damages filed herein on 14 January 2015, the plaintiff claimed the following heads of damages against the 1^st defendant:

(a) general damages for pain, suffering and loss of amenities (“PSLA”) in the sum of $300,000;

(b) loss of pre-trial earnings and MPF in the sum of $738,456;

(c) loss of future earnings and MPF in the sum of $2,979,900;

(d) loss of earning capacity in the sum of $180,000;

(e) loss of congenial employment in the sum of $150,000;

(f) costs of future medical expenses in the sum of $45,000; and

(g) special damages in the sum of $141,463.

9.  At the hearing, the parties reached agreement on the plaintiff’s claims for PSLA and special damages in the sums of $280,000 and $152,000 respectively.  Accordingly, in this assessment, I only have to assess the remaining items of claim of the plaintiff; namely: pre-trial loss of earnings, future loss of earnings, loss of earning capacity, loss of congenial employment and future medical expenses.

The plaintiff’s medical treatment

10.  After the Incident, the plaintiff was sent by ambulance to Prince of Wales Hospital (“PWH”) for treatment.  Physical examination noted tenderness over her high C-spine region (C3-C4).  There was no focal neurology deficit.  X-rays were unremarkable.  She was admitted for in-patient treatment.

11.  The plaintiff complained of neck and left shoulder pain during her stay at PWH.  Clinical examination revealed mild tenderness over left cervical paraspinal muscle and left shoulder.  Neck range of movement was nearly full.  Left shoulder range of movement was normal. X-ray of left shoulder and acromioclavicular joint was unremarkable.  The diagnosis was neck sprain injury.  The plaintiff was given physiotherapy treatment.  She stayed at PWH for three days and was discharged on 21 December 2009 with a soft neck collar.

12.  During the follow-up treatment at PWH, the plaintiff complained of left upper limb numbness and persistent left sided headache.  She was referred to neurosurgery for suspected post-concussion syndrome.  Physical examination found no abnormalities.  Computed tomography of her brain in March 2011 was normal.  The plaintiff was diagnosed to suffer minor head injury and post-concussion syndrome.  She received treatment at the Department of Neurosurgery of PWH in 2010 and 2011.

13.  From 5 January to 4 May 2010, the plaintiff received physiotherapy treatment at Yan Chai Hospital (“YCH”).  The plaintiff complained of pain over the posterior aspect of her neck and constant discomfort feeling over her left upper limb.  The movement range of her neck deceased in general, with flexion being 1/2 and extension being 1/3 of the normal range.  After 16 sessions of treatment, her neck movement was full in all directions.

14.  Magnetic Resonance Imaging (“MRI”) of the plaintiff’s cervical spine performed on 6 March 2010 showed normal cervical spine with no disc herniation, no osseous lesion and no cord or nerve root compression.

15.  MRI of the plaintiff’s left shoulder was performed on 15 November 2010 which showed that the plaintiff suffered left supraspinatus tendinosis.  No definite tear was noted in the rotator cuff tendons and no definite labral tear could be detected.

16.  The plaintiff was referred to YCH again in 2011 by PWH for further physiotherapy treatment.  She complained of left anterior shoulder pain.  From 20 July to 15 December 2011, she received another 14 sessions of further physiotherapy treatment.  After the treatment, her shoulder movements were full with pain at 80˚ to 100˚.

17.  The plaintiff also sought treatment from Dr Eric Chien (“Dr Chien”) of the Centre for Orthopaedic Surgery (the “Centre”) since 16 June 2011.  The plaintiff complained of pain over the front of her left shoulder.  The pain exacerbated with movement and she was unable to put her left hand behind her head.  The symptoms fluctuated for six months before the plaintiff consulted Dr Chien.

18.  Dr Chien’s diagnosis was soft tissue sprain of the neck and strained left shoulder supraspinatus tendon.  His clinical examination found that the plaintiff had:

(a) limited neck flexion to 2-fingerbreadth above sternum and poor extension of about 10 degrees and very limited rotation;

(b) painful abduction arc at shoulder from 40 to 130 degrees with click; and

(c) weakness of supraspinatus and subscapularis muscle power.

19.  In November 2011 Dr Chien suggested options of surgical decompression of subacromial space and repair of supraspinatus tendon to the plaintiff.

20.  Another MRI was performed on the plaintiff’s left shoulder on 10 November 2011 which revealed that the plaintiff suffered:

(a) supraspinatus tendon;

(b) minimal flaying of inferior articular surface of the supraspinatus tendon;

(c) mild subacromial/subdeltoid bursal fluid likely bursitis; and

(d) small haematoma with surrounding muscular oedema in the mid part of the deltoid muscle, consistent with small haematoma and oedema post injury.

21.  Further MRI of the plaintiff’s left shoulder was performed on 17 June 2013.  The abnormal signal seen in the deltoid muscle in the MRI of November 2011 had completely resolved.  No abnormal fluid in the subacromial/subdeltoid bursa was found, supraspinatus and subscapularis showed some minor signal changes consistent with tendinosis/tendinitis with no definite full thickness tear and no evidence of partial thickness tear over 50%.

22.  On 18 December 2013, the plaintiff underwent operation of surgical arthroscopic decompression of the subacromial space which was performed by Dr Chien.  Intraoperative findings found fibrotic deltoid muscles with cracking wound on establishing surgical portals and mild signs of inflammation at the lateral rim of acromial.  There were features of congestion over the articular side of the cuff.  Subacromial decompression of antero lateral corner of acromion was performed.

23.  The plaintiff was followed-up by Dr Chien and continued to receive private physiotherapy treatment at the Centre regularly after the aforesaid operation.  In respect of the plaintiff’s condition, Dr Chien noted that there were:

(a) slow and fluctuating recovery of her left shoulder after the operation;

(b) slow but gradual improvement in pain;

(c) initial improvement in movement with features of painful arc and impingement resolved;

(d) full elevation of left arm but tightness towards end range of internal and external rotation;

(e) scar hypertrophy particularly over the lateral aspect of the shoulder and was very slow in maturation; and

(f) tenderness and residual congestion and dark pigmentation at one year after the surgery.

24.  Dr Chien advised the plaintiff that she might consider serial steroid injection to the scar.  At the attendance on 16 December 2014, Dr Chien noted that there were:

(a) some flare up of left shoulder pain;

(b) attack of pain during abduction of her left upper limb to ninety degrees with full external or internal rotation;

(c) residual weakness of rotator cuff muscles over the supraspinatus, infraspinatus and subcapularis muscle; and

(d) tightness of her neck and trapezius muscles.

25.  The plaintiff is still being followed-up by Dr Chien and receiving private physiotherapy treatment at the Centre regularly.

26.  The plaintiff was granted sick leave from 19 December 2009 to 28 June 2010, intermittently from 1 September 2010 to 24 September 2012.  She was granted further sick leave since her operation in December 2013.  Her sick leave was still continuing at the date of the assessment of damages hearing.  Up to 15 April 2015, the plaintiff had been granted 671 days of sick leave.

Evidence of Medical Experts

27.  The plaintiff was assessed by the parties’ medical experts on 6 November 2014, ie about five years after the Incident.

28.  The experts noted that the plaintiff still had tenderness over left trapezius muscle and of neck muscle.  There was wasting of infraspinatus and supraspinatus muscles of the plaintiff’s left shoulder. Impingement sign was positive on the left side.  The range of motion of her left shoulder was narrower than her right shoulder in terms of flexion, abduction and internal rotation.  Decreased 10% to 20% sensation over left lateral arm and left lateral forearm was noted.

29.  The experts agreed that the plaintiff suffered soft tissue injury of neck and left shoulder.  They also agreed that the injury was due to the Incident.  The sudden strain over the plaintiff’s left shoulder by the seatbelt could cause deltoid muscle and supraspinatus tendon injury.

30.  The experts agreed that the treatment received by the plaintiff was appropriate and no further treatment was required.  They also agreed that the plaintiff had reached maximal medical improvement.

31.  The experts agreed that although the plaintiff could return to her previous occupation as dancer or human resources worker, she would suffer reduced efficiency due to the neck and left upper limb impairment.  She would have difficulty in overhead activities.

32.  The experts agreed that the sick leave granted to the plaintiff was appropriate for her condition.

33.  Dr Fu opined that the plaintiff’s current neck and left upper limb impairment would persist.  She would have an on and off pain that would require treatment on a need to basis.  She would also have difficulty in overhead activities and heavy manual exertion.

34.  Dr Tsoi opined that some of the plaintiff’s complaints could be explained by her left shoulder injury but some (including the generalized weakness of her left shoulder in all directions and the alleged numbness and impaired sensation of left upper limb) could not.  Dr Tsoi was of the view that the apparently limited neck motion of the plaintiff was due to voluntary underperformance and the plaintiff was magnifying her orthopaedic problem.

35.  Dr Fu assessed the impairment of whole person and loss of earning capacity of the plaintiff both at 6% and Dr Tsoi assessed both of them at 3%.

Evidence of the plaintiff

36.  The plaintiff testified at the assessment hearing and called no other factual witness.

37.  The plaintiff adopted her witness statement dated 27 August 2012 and her supplemental witness statement dated 30 October 2014 as part of her evidence-in-chief.

38.  She stated that when the Incident occurred, she was travelling on a taxi.  When the taxi arrived at the Shing Mun Tunnel in Shatin, the traffic inside the tunnel was congested.  The taxi driver had to slowly stop.  When the taxi stopped, it was hit by the vehicle driven by the 1^st defendant from the rear.  At the time of the Incident, the plaintiff was sitting at the left rear seat of the taxi.  The strap of the safety belt worn by her was buckled from her left upper side across her left shoulder down her right lower side.  When the taxi was hit from behind, the momentum pushed her whole body forwards and caused injuries to her.

39.  The plaintiff stated that after the collision, she felt that her neck and shoulder were very painful, her lower back was numb and there were also headaches and dizziness.  She was taken to PWH by ambulance with oxygen mask put on her for treatment.

40.  After initial treatment at the Accident & Emergency Department, she was admitted to the orthopaedic ward of PWH for further treatment.  She stayed at PWH for three days.  When she was discharged, she had to wear a neck collar to stabilize the areas at her neck and shoulder where she felt painful.  She told the court at the hearing that she had been wearing the neck collar for about two months.

41.  She was referred to YCH for physiotherapy treatment including hot pack, transcutaneous electrical nerve stimulation (TENS), joint mobilization and stretching exercises.  Her condition improved little after the treatment.  The stiffness and pain at her neck and shoulder still could not be eradicated.

42.  She underwent MRI on 15 November 2010 which revealed abnormal condition at her left shoulder tendon.

43.  She also attended the Department of Neurosugery of PWH since 1 September 2010 because of persistent headaches, dizziness and vomiting after the Incident.  The doctor arranged her to undergo computed tomography scan and referred her to Jockey Club clinic for continuous follow-ups.

44.  As her pain at her neck and left shoulder persisted, the plaintiff sought treatment from Dr Chien since 16 June 2011. She stated that at that time, her left shoulder was very painful.  The pain would increase when she moved her shoulder.  She could not put her hand behind her head because of the pain.  Her left hand was weak and she found it hard to lift the weight of more than two bottles of shampoo by her left hand.  When she was examined by Dr Chien, it was found that the range of movement of her neck and shoulder was very small and her shoulder was very weak.  There were “ka ka” sounds when moving her shoulder due to the scar on the tendon.

45.  Dr Chien referred her to further MRI examination on 10 November 2011.  It revealed that the fibers of her left deltoid muscles were abnormal with cysts and suspected haematoma.  There was also muscular oedema.  The diagnosis of Dr Chien was tendinitis or bursitis.

46.  She received further physiotherapy treatment at YCH from 20 July to 15 December 2011.  Her condition improved a little after the treatment but moving the left shoulder remained very painful.

47.  Dr Chien told her that her injuries were already generally stabilized and the benefits of further physiotherapy treatment would be very limited.  On 14 November 2011, Dr Chien suggested her to consider undergoing shoulder arthroscopy decompression of subacromial space.

48.  In about June 2013, Dr Chien referred her to undergo a further MRI examination of her left shoulder.  Dr Chien noticed from the MRI report that there was inflammation at the plaintiff’s shoulder muscles.  Shoulder impingement phenomenon persisted.  Dr Chien again suggested the plaintiff to undergo surgical decompression of left acromial space.  In about September 2013, the plaintiff decided to accept the said suggestion of Dr Chien.  The operation was performed by Dr Chien on 18 December 2013.  She was discharged from the hospital the next day on 19 December 2013.

49.  The plaintiff recalled that after the operation, the part at her left shoulder where the operation was performed was very painful.  On 20 December 2013, she attended the clinic of Dr Chien for treatment as the wound where the operation was performed bled persistently.  Dr Chien told her that during the operation, Dr Chien discovered that her deltoid muscles were fibrotic and there was inflammation at the lateral rim of acromial.  Dr Chien had shaved the bone at her shoulder to reduce the pain resulted from the friction between the shoulder bones.

50.  After the operation, the plaintiff regularly attended follow-up appointments with Dr Chien and received rehabilitation physiotherapy treatment at the Centre.  Initially the Centre arranged some muscle strengthening exercises for her.  However, her left shoulder became very painful after the exercises.  The exercises also caused soft tissue at her left shoulder became inflamed.  Dr Chien advised her in April 2014 to stop the muscle strengthening exercises temporarily and increase other physiotherapy treatment. In about June 2014, she attempted swimming with a view to facilitate the rehabilitation of her left shoulder.  However, her whole left arm became very painful on the next day after swimming.  Such severe pain persisted for a whole day before it alleviated.  As a result, the plaintiff did not attempt swimming or other exercises involving the use of her left shoulder again.

51.  The plaintiff received regular physiotherapy treatment after the operation.  At the hearing, she told the court that she was still receiving physiotherapy treatment at the Centre once a week and follow-up treatment by Dr Chien once every four weeks.  The costs for each physiotherapy treatment and follow-up treatment were $600 and $1,300 respectively.

52.  The plaintiff stated that despite the operation, the pain at her left shoulder persisted.  It often caused her unable to sleep at night.  The range of abduction of her left shoulder did not improve and her left palm sometimes felt numb.

53.  The plaintiff also received about 10 sessions of acupuncture therapy treatment from Chinese medicine practitioners after the Incident.

54.  She complained that she still had the following discomforts when she prepared her supplemental witness statement in October 2014:

(a) occasional pain and weakness at left shoulder, need to take pain-killer at least once per week to alleviate pain and could not sleep at night occasionally due to pain;

(b) persistent stiffness and numbness at left shoulder muscles;

(c) abnormal sensation at left hand, with lower temperature than that of the right hand;

(d) reduced range of motion of left arm; and

(e) limited ability in lifting objects by left hand.

55.  In her witness statement, the plaintiff stated that she was educated up to Form 7.  She learnt ballet since young and had obtained Advanced II level from the Royal Academy of Dance in 2007.  She also possessed a certificate in human resources management.

56.  In her supplemental statement, she told the court how she was passionate in ballet dancing.  She had spent much time on ballet when she was studying and never ceased learning ballet even when she started working.  She passed most of the examinations of the Royal Academy of Dance undertaken by her with merits or distinctions.  After obtained the Advanced II level in 2007, there was only one level remained for her to reach the level of “Solo Seal” which is the highest grade recognized by the Royal Academy of Dance.

57.  She started her employment in 2007 as a clerk and changed to the field of human resources in 2008.  In October 2009 (ie two months before the Incident), she resigned from her job as an administrative clerk in the human resources department of a company and was prepared to find another job.  Her monthly salary before resignation was $9,800.

58.  The plaintiff stated that she had planned to become a full-time ballet teacher.  She resigned from her job as an administrative clerk and left her job on 24 October 2009.  She planned to teach ballet and become a ballet dancer for living.

59.  The plaintiff stated that before the Incident, she also taught ballet and participated in ballet performances or singing concerts as ballet dancer on part-time basis for about three to four years. She earned about $1,500 each month from her part-time jobs. 

60.  When she was searching for new employment before the Incident, she had also applied for the position of full-time ballet teacher.  She had sent out about five to six applications but no response had been received.  The monthly salary for these positions ranged from $12,000 to $18,000.  She said at the hearing that the current salary for full-time ballet teacher with her qualification would be at least $23,000.

61.  At the time of the Incident, she had already applied for a position as an administrative assistant in the human resources department of a company with a monthly salary of about $10,000.  She had passed the first interview in early December 2009 but was injured in the Incident before she attended further interviews.

62.  After the Incident, due to the injuries and pain at her neck and shoulder, she could no longer perform many moves in ballet dancing and the number of her dancing performance had reduced a lot as a result.  After the Incident, she had not practised ballet for half a year.  She could not reach the level of flexibility before the Incident even though she resumed stretching afterwards.  Since she could not use her left arm freely after the Incident, she could only perform dances composed by herself which seldom have moves requiring use of the left arm.

63.  The plaintiff set up her own ballet school since July 2010 known as Nessa Dance Studio (“Nessa”) to teach ballet.  She stated that due to the pain at her injured parts after the Incident, she could only handle about three lessons per week.  She could only teach lower level children’s ballet lessons and could not perform many demonstration postures due to injuries and pain.  She would only explain the dance steps but rarely demonstrate personally.  When demonstration was needed, she would usually find a student to demonstrate.  If she had to demonstrate personally, she would use her right arm as her left arm to do the demonstration.  She found such teaching method unsatisfactory.  She had to employ ballet tutors at the hourly rates of $300 to $400 to assist her to run Nessa.

64.  She told the court at the hearing that she was currently teaching about 32 to 33 hours a month on average at Nessa.  She said that with her experience her hourly rate should be $350.  She had received such rate once from a one-to-one student at Nessa in April 2014.  Other than that occasion, all her students were children under 6 years old and she needed not dance in the classes.  She said that but for the Incident, she would be able to teach Grade 6 and above which would command a higher hourly rate.

65.  Nessa also took up performance contracts from shopping malls or charitable organization and recruit ballet dancers to perform for contractors to earn commissions.  Nessa also rented rooms to other ballet tutors for teaching.  Nessa had not made any profits as at October 2014.  At the hearing, the plaintiff told the court that Nessa had by then managed to breakeven.

66.  In 2011, the plaintiff tried to work as a clerk on a part-time basis.  However, due to the prolonged sitting while typing at work, she felt discomfort, tiredness and pain at her neck and shoulder after work.  After working for one month, she felt that she could not handle any more and resigned.  She earned about $3,000 from this job.

67.  Apart from operating Nessa, the plaintiff also taught part-time ballet at Zenith Kindergarten (“Zenith”) since early November 2011 on Friday and Saturday for three hours each day at the initial hourly rate of $250 which was increased to $300 in September 2013 and further increased to $320 in 2014.

68.  The plaintiff also taught ballet at Venus So Ballet School (“Venus”) since 1 February 2012.  At the interview for that job, she told the headmaster of Venus about her injury and expressly said that due to the injuries at her left shoulder, she would rarely demonstrate the move personally and would mainly rely on students for the demonstration.  The headmaster agreed to her conditions.  She taught from level 1 to level 7 at Venus.  She taught on Tuesday and Sunday every week for about 8 hours at Venus (ie 3 hours on Tuesday and five hours on Sunday) at the initial hourly rate of $180 which was increased to $200 since September 2014.  Since November 2014, she ceased to teach the Sunday classes at Venus and only taught the Tuesday classes.  The plaintiff told the court at the hearing that she only had one level 7 class at Venus.

69.  As at October 2014, she earned about $10,000 per month on average from teaching ballet.   

70.  The plaintiff stated in her witness statement that if not because of the Incident, she could teach ballet for 44 hours each week. However, she agreed at the hearing that the chance for a person teaching ballet 44 hours every week was relatively low unless she was teaching at different schools.  She said that there was no fixed retirement age for ballet teachers.

Findings

71.  I have no doubt on the plaintiff’s passion in ballet dancing.  I accept her evidence and the expert’s evidence that her injuries had made it difficult, if not impossible, for her left arm to perform overhead movements.  This affected her ability to perform certain postures for ballet dancing.  However, I also accept Dr Tsoi’s view that some of the plaintiff’s complaints could not be explained by her left shoulder injury and the plaintiff had magnified her orthopaedic problem.

72.  The parties having agreed on the quantum for PSLA and special damages, what I have to do in this assessment exercise is to assess whether the injuries sustained by the plaintiff in the Incident and the consequential impairment of her body had caused financial loss to the plaintiff in other aspects?  If so, how much? 

Pain, suffering and loss of amenities

73.  Damages for this head had been agreed at $280,000.

Pre-trial loss of earnings

74.  The plaintiff claimed $738,456 under this head in the re-revised statement of damages.

75.  The plaintiff was not under full-time employment at the date of Incident.  She had left her previous job of human resources assistant at the end of October 2009 and was looking for job as human resources assistant and/or ballet teacher.  At the date of the Incident, she had already passed the first interview for a position as an administrative assistant in the human resources department of a company with a monthly salary of about $10,000.  She told the court at the hearing that she was prepared to take up that job if employed but would not give up hunting the job of a full-time ballet teacher.

76.  Mr Pun, representing the plaintiff, submitted that due to her injuries sustained in the Incident, the plaintiff had to abandon her plan of job hunting for human resources assistant and/or ballet teacher.  The plaintiff was granted continuous sick leave from the date of Incident (ie 19 December 2009) to 28 June 2010.  Mr Pun submitted that the plaintiff should be entitled to damages for her full loss of income during this sick leave period at the rate of $11,500 per month ($10,000 being her salary for full-time job as human resources assistant and $1,500 being her part-time income for teaching ballet).

77.  Mr Pun submitted that the plaintiff’s loss of earnings for the period from 19 December 2009 to 28 June 2010 was $76,073 inclusive of MPF (being $11,500 x 6.3 months x 1.05).

78.  For the period after 28 June 2010 to the date of hearing, Mr Pun assumed that but for the Incident the plaintiff would have obtained a position as a ballet teacher at the end of June 2010 after the aforesaid sick leave period.  However, Mr Pun did not set out the basis (legal or factual) for such assumption.  Mr Pun submitted that the median monthly earnings for ballet teacher between June 2010 and the date of hearing was $17,500 [being ($12,000 + $23,000) ÷ 2].  The plaintiff would continue her part-time teaching and keep the income of $1,500 per month.

79.  The total income of the plaintiff from 29 June 2010 to 13 March 2015 would be $1,122,937.50 inclusive of MPF (being [$17,500 x 1.05 + $1,500] x 56.50 months).

80.  Mr Pun agreed that credit should be given to the plaintiff’s actual earnings in this period.

81.  Although the plaintiff stated in her witness statement that she earned about $3,000 for working as a part-time clerk in June 2011, her tax return showed that she actually worked in March and April 2011 and earned $4,096 (ie $1,344 + $2,752).  The plaintiff agreed at the hearing that the facts stated in her witness statement were only based on her recollection. I find that the plaintiff’s income from this part-time job was $4,096.  This was the only income of the plaintiff showed by documents adduced before the court for the financial years of 2010/2011 and 2011/2012.

82.  The plaintiff had been working for Zenith since November 2011 and for Venus since February 2012 but she provided no information to the court on her actual earnings received from Zenith and Venus in the financial year 2011/2012.

83.  For the financial years of 2012/2013 and 2013/2014, the plaintiff earned $128,160 and $187,050 respectively through her part-time ballet teaching at Venus and Zenith.

84.  The monthly earnings of the plaintiff at the date of the hearing was about $10,080 from teaching part-time ballet at Zenith ($320 x 6 hours x 4 weeks = $7,680) and Venus ($200 x 3 hours x 4 weeks = $2,400).  The plaintiff derived no earnings from Nessa during the pre-trial period as Nessa only managed to breakeven as at the date of the assessment hearing.  Mr Pun suggested that for the purpose of this assessment, it was assumed that the plaintiff could have earned the same income as in the financial year of 2013/2014 before she reduced her teaching hours at Venus in November 2014.  In such case, the plaintiff’s income was taken to be $187,050 ÷ 12 = $15,588 per month.  From 1 April 2014 to 13 March 2015, the plaintiff’s income was taken as $186,588.36 ($15,588 x 1.05 x 11.4 months).

85.  Mr Pun calculated the total earnings of the plaintiff for the period from 29 June 2010 to 13 March 2015 at $505,894.36 (being $4,096 + $128,160 + $187,050 + $186,588.36).  Mr Pun did not take into account the plaintiff’s earnings derived from teaching ballet at Zenith and Venus in the financial year 2011/2012.

86.  According to Mr Pun’s submissions, the plaintiff’s claim for pre-trial loss of earning should be about $693,116.14 (being $76,073 + $1,122,937.50 - $505,894.36).  Mr Pun’s calculation was $693,121.  The difference of $4.86 is probably due to rounding up of figures and is insignificant.

87.  Mr Pun also put forward a fallback position of the plaintiff for her pre-trial loss of earning claim at $270,077 (being $11,500 ÷ 30 days x 671 days sick leave x 1.05).

88.  Mr Wong, representing the 1^st defendant, did not dispute that the plaintiff had suffered loss of pre-trial earnings but disagreed that such loss should be assessed by reference to the earnings of a full-time ballet teacher.

89.  Mr Wong noted that all previous applications of the plaintiff for the position of a full-time ballet teacher were unsuccessful and at the time of the Incident the plaintiff was applying for a job as human resources administrative assistant.  Mr Wong submitted that had the option of being a ballet teacher been realistic by the time of the Incident, the plaintiff would have taken that route without even considering the job for the human resources administrative assistant.

90.  The evidence adduced showed that the plaintiff wished to become a full-time ballet teacher.  However, the evidence did not support the contention that the plaintiff would be able to secure an employment as a full-time ballet teacher.  According to the plaintiff, she received no response to all her applications for full-time ballet teacher post.  The assumption of Mr Pun that the plaintiff would become a full-time ballet teacher in June 2010 but for the Incident was not support by evidence.  To say that the Incident had caused the plaintiff losing the earnings of a full-time ballet teacher is only a suggestion based on speculation.  I reject such contention.

91.  With her qualification and experience in the human resources field, I am of the view that the plaintiff had a good chance to get the employment as human resources assistant especially when she had already succeeded in the first interview for such a job before the Incident.  Bearing in mind that there was still further interview for that job and it might take some times for papers for her employment to be finalized, I find that but for the Incident the plaintiff would have started her new employment as a human resources assistant with a monthly salary of $10,000 in February 2010.

92.  I accept the plaintiff’s evidence that she had been earning about $1,500 per month for teaching ballet as part-time substituted teacher and participating in performances and singing concerts.

93.  Evidence showed that the plaintiff had obtained business registration for Nessa on 1 May 2010.  Her evidence was that the lease for the premises of the studio commenced in May 2010 and Nessa started operation in July 2010.  I accept that when the plaintiff was preparing for the commencement of business of Nessa, she might still be able to continue with her full-time job.  However, she would have to leave her job latest by end of June 2010 to take care of her own business.

94.  I find that the plaintiff had lost earnings from full-time employment at $10,000 plus MPF from February to June 2010 being $10,000 x 5 months x 1.05 = $52,500.

95.  Medical experts of both parties were of the view that the plaintiff could return to her previous occupation as dancer or human resources worker.  The plaintiff set up Nessa not because the injuries sustained in the Incident had reduced or limited her earning capacity.  Her evidence was that running a ballet dancing school was her dream from tender age.

96.  After the plaintiff started her own business in July 2010, her income would be derived from earnings of Nessa.  The plaintiff’s loss of earnings from July 2010 onwards would have to be assessed by reference to whether her injuries had deprived her to earn certain income through the operation of Nessa.  The plaintiff’s evidence was that the injuries had prevented her to take up all the classes of Nessa and she had to employ part-time ballet tutors to assist her.  For reasons set out in the next paragraph, I accept that the injuries had limited the plaintiff’s capacity to take up teaching classes at Nessa until the end of October 2011.  According to the income and expenses statement of Nessa provided by the plaintiff, Nessa had spent $66,790 in employing tutors from July 2010 to October 2011.  As Nessa was newly established and was running at a loss at that time, I am of the view that the plaintiff would have taken up as many teaching classes as she could manage by herself but for the injuries limiting her teaching capacity.  If not because of her injuries limiting the plaintiff’s teaching capacity, Nessa would not have incurred $66,790 to employ part-time tutors.  Such expenses saved by Nessa would become the plaintiff’s income.  I find that the plaintiff also suffered loss of income for the period from July 2010 to October 2011 in the sum of $66,790.

97.  However, I am of the view that this limitation on the plaintiff’s teaching capacity caused by the injuries had ceased to have financial impact on the plaintiff by the end of October 2011 when the plaintiff took up part-time teaching employment at Zenith in early November 2011.  If the plaintiff’s teaching capacity had limited her teaching hours at Nessa as at November 2011, she would not have taken up part-time teaching employment at other institutes.  The plaintiff would have taken up more teaching classes at Nessa.  It had to be the case that she had already taken up all classes she could manage to take up at Nessa and still had spare capacity before she would look for part-time teaching opportunities at other institutes.  I note that the plaintiff took up even further part-time teaching at Venus in February 2012. This showed that as at November 2011 the plaintiff’s teaching capacity had already exceeded the teaching requirements at Nessa.  If the injuries had reduced her teaching capacity, such impairment ceased to have any financial impact on the plaintiff since early November 2011.

98.  The plaintiff had reduced her teaching hours at Venus since November 2014.  The plaintiff’s evidence was that this was because she had more students at Nessa and she preferred to spend more time at Nessa. This had nothing to do with her injuries.

99.  I find that the injuries had ceased to cause further loss of earnings to the plaintiff in respect of ballet teaching since November 2011 although the movements of her left arm were still subject to limitation.

100.  I note that Nessa had still incurred expenses in employing tutors from November 2011 onwards.  In view of my above analysis, these expenses of Nessa could not have been caused by the plaintiff’s incapacity to take up more classes because of the injuries.  This might have been caused by Nessa having more than one class at the same time and the plaintiff could not teach more than one class at the same time or by the plaintiff requiring more times to be devoted to the administration works of Nessa.  Such expenses incurred from November 2011 onwards by Nessa had nothing to do with the plaintiff’s injuries or the limitation of her left arm movements caused by the injuries.

101.  I accept the plaintiff’s evidence that before the Incident she earned about $1,500 per month from part-time teaching or performance of ballet and she lost such earnings after the Incident up to the end of October 2011.  She lost such earnings for about 10.5 months.  The amount was $15,750 (ie $1,500 x 10.5 months).

102.  Although the plaintiff had suffered loss on her part-time ballet related earnings before November 2011, she had made some earnings as a part-time clerk in March and April 2011 in the total sum of $4,096.  Credit has to be given to such earnings when assessing the plaintiff’s pre-trial loss of part-time earnings.  Accordingly, the net loss of pre-trial loss of part-time earnings suffered by the plaintiff up to the end of October 2011 should be $11,654 (ie $15,750 - $4,096).

103.  I find that the injuries had ceased to cause loss of earnings to the plaintiff on teaching ballet since November 2011. However, according to the plaintiff’s evidence, part of her part-time earnings before the Incident came from participating in performances and singing concerts.  She earned about $500 per show.  Such income was irregular and she got more jobs in December during Christmas.  The injuries had limited the movements of her left arm.  Although she had overcome the problem in teaching ballet by developing her own way of teaching, this impairment would have deprived her of the opportunities to earn income from participating in performances and singing concerts.

104.  Her evidence was that she taught ballet part-time before the Incident for one to two days each month and for five to six hours each day at the hourly rate of $120.  The plaintiff’s average ballet related part-time income was $18,000 per annum (ie $1,500 x 12).  She agreed in cross-examination that she taught about 12 hours per month on average.  Her pre-Incident part-time income from teaching ballet would be about $17,280 per annum ($120 x 12 hours x 12 months).  This suggested that the plaintiff earned about $720 each year from part-time ballet performances.  I assess her pre-Incident earnings from part-time ballet performance at $1,000 per year.  It was about 3.5 years from November 2011 to March 2015.  I assess loss of the plaintiff under this item at $3,500 (ie $1,000 x 3.5 years).

105.  I do not accept the so-call “fallback” position advanced by Mr Pun.  The head of damages for loss of earnings is to compensate the plaintiff for loss of earnings caused by the injuries sustained in the Incident.  It is not a head of damages to award certain amount of payment to the plaintiff for each day of sick leave granted.

106.  I assessed the total pre-trial loss of earnings of the plaintiff at $134,444 as follows:

(a) full-time employment (up to June 2010):	$52,500
(b) unable to take up classes at Nessa:	$66,790
(c) part-time employment (up to October 2011):	$11,654
(d) part-time performance income:	$3,500

Future loss of earnings

107.  The plaintiff claimed $2,979,900.00 under this head in the re-revised statement of damages.

108.  Mr Pun submitted that it would be reasonable to assume that the plaintiff would continue to suffer a monthly loss of $7,412 (being $23,000 - $15,588).

109.  The plaintiff was 29 years old at the date of hearing.  Mr Pun assumed that the plaintiff could continue working as a full-time ballet teacher until the retirement age of 65.  He adopted a future multiplier of 23.65 and came to a claim figure of $2,208,702 inclusive of MPF (being $7,412 x 12 months x 23.65 x 1.05).

110.  For reasons stated above, I have rejected Mr Pun’s assumption that the plaintiff would become a full-time ballet teacher by June 2010.  I also reject his contention to calculate the plaintiff’s loss of earnings based on the income of a full-time ballet teacher.  Furthermore, other than the opinion expressed by the plaintiff, no evidence had been adduced to support the salary figure of a full-time ballet teacher adopted by Mr Pun in his calculation.

111.  As I have found that the plaintiff ceased to suffer any loss of earnings on her capacity to teach ballet dance since November 2011, her only item of loss of earnings for the post-trial period would be loss of earnings from participating in performances and concerts.  I have assessed her loss of such earnings at $1,000 per annum.  I have to assess how long she would further participate in performances and concerts but for the injuries.  The plaintiff said that there was a ballet tutor aged about 80 renting dancing studio from Nessa to teach ballet to show that ballet teaching could extend beyond the normal retirement age of other types of employment.  I accept that there might be ballet tutors of advanced age.  However, participating in performances and concerts for entertainment is different from teaching ballet. I shall expect that only in rare occasions will aged ballet dancers be invited to perform at festival occasions or singing concerts.  The plaintiff was aged 29 at the assessment hearing.  I estimate that if not because of the injuries which restricted her left arm movements, she would continue to receive jobs for participating in performances and concerts for another 10 years.  I make a discount of 10% for the plaintiff receiving these future earnings in advance. I assessed the plaintiff’s post-trial loss of such part-time earnings in the sum of $9,000 (ie $1,000 x 10 years x 90%).

Loss of earning capacity

112.  The plaintiff claimed $180,000.00 in the re-revised statement of damages under this head.

113.  Mr Pun submitted that by reason of the permanent disabilities suffered as a result of the Incident, the plaintiff’s working capacity and efficiency were greatly reduced.  She would suffer a disadvantage in the labour market.  The medical experts had assessed her loss of earning capacity at 3% to 6%.  Mr Pun submitted that the plaintiff’s handicap in the labour market would not disappear and this claim of the plaintiff should be allowed.

114.  In Tang Shau Tsan v Wealthy (unrep., CACV 58/2000, 5 April 2000), Roger JA (as he then was) had commented on opinion given by medical experts on loss of earning capacity at p5 of the judgment as follows:

“An expert witness can give evidence as to the nature of the plaintiff’s injuries, what effect that has on the plaintiff physically and what lasting effect that is likely to have. Statements of opinion in relation to earning capacity are, in my view, inadmissible, either from a doctor or even from an occupational therapist. Indeed, to a large extent, they seem to me to be confusing, at best, and meaningless at worst. The expression of the earning capacity in percentage terms is particularly unhelpful and indeed confusing because it is imprecise.”

115.  Mayo VP also expressed similar view at p9 of the judgment when he stated that:

“Clearly any expert evidence given by them [the medical experts of the parties] should have been confined to the Plaintiff’s medical condition. It was not permissible for them to venture to give opinions relating to the labour market a subject upon which they were not competent to express an opinion.”

116.  Whether the impairment to her body had led to loss of earning capacity of the plaintiff is a matter to be determined by the court after considering evidence adduced by the parties.  An award for loss of earning capacity would be appropriate if there is evidence that there is a substantial risk that the claimant will at sometime before the end of his working life lose his job and be thrown on the labour market in which he is disadvantaged. (See Moeliker v Reyrolle & Co [1977] 1 All ER 9)

117.  Browne L.J. stated inMoeliker v Reyrolle & Co at 15b-c that:

“This head of damage generally arises where a plaintiff is, at the time of the trial, in employment, but there is a risk that he may lose this employment at some time in the future and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job.”

118.  His Lordship further set out the principle for considering this head of damages at 17a-c as follows:

“I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages. 1. Is there a ‘substantial’ or ‘real’ risk that a Plaintiff will lose his present job at some time before the estimated end of his working life? 2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the Plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the Plaintiff’s chances of getting a job at all, or an equally well paid job.”

119.  The plaintiff had been running Nessa for about four years at the date of the assessment hearing.  No evidence had been adduced to suggest that she would close her dance studio and go into the labour market soon.  In fact, her studio had been doing well from losing money in October 2014 to being able to breakeven in March 2015.  In her supplemental witness statement made in October 2014, the plaintiff stated that Nessa had all along been operating at a loss but she did not have any plans to close it.  The financial situation of Nessa had improved.  The plaintiff told the court at the hearing that the current lease for Nessa’s premise would continue to May 2016.  There is no ground to expect that the plaintiff would close down Nessa in the foreseeable future.

120.  The plaintiff had been teaching part-time ballet at Zenith and Venus since 2011 and 2012 respectively.  There was no suggestion that she would lose these part-time jobs in the foreseeable future.  In fact, these part-time jobs were secured by the plaintiff after the Incident.  The reduction of teaching hours at Venus in November 2014 was the plaintiff’s own choice.  No evidence had been adduced to suggest that the plaintiff would be at risk of losing her present part-time employment.  Although I accept that the injuries had made the plaintiff unable to perform certain postures in ballet dancing causing her to lose the opportunities to participate in performance and singing concert, this loss has been covered in the loss of post-trial earnings item.

121.  I do not consider that this is an appropriate case for the court to award further damages under this head.

Loss of congenial employment

122.  The plaintiff claimed $150,000 under this head in the re-revised statement of damages.

123.  Mr Pun submitted that the plaintiff was dedicated in ballet dancing.  The plaintiff had devoted her life to ballet dancing and had been a private ballet tutor for more than three years before the Incident.  She aimed at becoming a full-time ballet teacher or dancer.  The job was important to her and she enjoyed and took pride in it.  Although she could still teach ballet on a part-time basis, her working capacity and efficiency had been reduced after the Incident.  Further, her students were now limited to children under the age of six.  But for the Incident, the plaintiff would be able to teach Grade 6 and above.

124.  Mr Pun agreed that the plaintiff was able to return to work as a ballet tutor.  He referred to Lai Jianxing v Sakoma (HK) Ltd [2012] 5 HKLRD 589 to submit that it was not a prerequisite to an award for loss of congenial employment that a claimant had to have left his original profession.  In that case, the claimant was the deputy captain of a barge before the accident injuring him.  He was offered a position as a watchman of scrap vessels on land by his employer after the accident.  He was later offered to work as the chief mate on a tug boat.  The Court of Appeal accepted that: “As the deputy captain on the barge, he occupied the position of a team leader and commanded the respect of his crew members.  His present position as the chief mate on the tug boat was limited and inferior.”  The Court of Appeal awarded RMB100,000 to the claimant in that case under this head.

125.  As pointed out by Suffiad J in Chan Yiu Ping v Mok Yuk Kwong and others (unrep., HCPI 92/1998, 3 July 2000), an award for loss of congenial employment might be made when the claimant had had to give up a job which he enjoyed and which gave him satisfaction and/or status.

126.  In Wong Sau Lai v Cathay Pacific Airways Ltd (unrep., HCPI 111/2001, [2003] HKEC 1284) (on appeal [2005] 4 HKLRD 395 and [2006] 9 HKCFAR 371), the claimant was forced to quit her “dream job” as a flight cabin attendant and the court awarded $120,000 to her under this head.

127.  In the present case, the plaintiff’s evidence was that running her own dance studio was her dream career.  She was not running her own dance studio before the Incident.  Her injuries sustained in the Incident did not stop her from achieving her dream career.  She did establish Nessa, her own dance studio, in July 2010, ie about seven months after the Incident.

128.  Before the Incident, the plaintiff only had irregular works for teaching ballet as substituted teacher.  She is now engaged full-time in ballet teaching and had regular part-time ballet teaching works. I do not see that the injuries sustained by the plaintiff in the Incident had caused her to give up a job which she enjoyed and which gave her satisfaction and/or status.  I agree with Mr Wong that the plaintiff was doing much better in terms of pursuing her interest and working more hours in ballet teaching as compared to pre-Incident.  I also do not see that the loss of the opportunities to participate in performance or concert as one of the many dancers on a few occasions each year can be considered as loss of congenial employment.

129.  Mr Pun submitted that the injuries suffered by the plaintiff had deprived her of the satisfaction of teaching students at higher grades and seeing these students passing their examinations.  I do not agree.  There was no evidence to show that the plaintiff had to turn away students of higher grades because of her injuries.  She had been teaching up to level 7 at Venus and she had taught a student on a one-to-one basis at the hourly rate of $350 in April 2014.  Although the plaintiff did not tell the court the level of that student, I shall expect that ballet student seeking tuition on one-to-one basis and willing to pay an hourly rate of $350 would not be a beginner in ballet.  The plaintiff’s evidence was not that she could not teach students of higher grade but that she had to teach them in a different way such as asking other students to do the demonstration rather than demonstrating herself or demonstrating movements of the left arm by using her right arm.

130.  In the circumstances of this case, I do not consider that it is an appropriate case to make an award under this head and I decline to do so.

Future medical expenses

131.  The plaintiff claimed $45,000 under this head in the re-revised statement of damages.

132.  Mr Pun in his submissions divided the claim into $20,000 for symptomatic relief treatment and $25,000 for injection of steroid for scar hypertrophy.

133.  Mr Pun submitted that the plaintiff’s evidence was that she was still receiving physiotherapy and follow-up treatment at the costs of $3,700 per month (ie $600 x 4 = $ 2,400 for physiotherapy treatment at the Centre and $1,300 for follow-up treatment by Dr Chien).  Dr Fu also said that the plaintiff would have on and off pain that would require treatment on a need to basis.

134.  Mr Pun further submitted that injection of steroid for the plaintiff’s scar hypertrophy was suggested to her by Dr Chien. Although Mr Pun apportioned $25,000 of the claim under this head to the steroid injection treatment, no evidence had been adduced on the costs for such treatment.

135.  I accept that the plaintiff will have to receive further physiotherapy treatment and follow-up treatment.  The claimed amount of $20,000 will enable her to receive another 5 months’ treatment after the hearing at the current frequency.  Of course, the frequency of physiotherapy treatment will be reduced when the plaintiff’s condition further improved and the claimed amount will cover medical expenses for a longer post-trial period. I am of the view that the plaintiff’s claim for $20,000 for future medical treatments is reasonable and shall be allowed.

136.  In respect of the costs for steroid injection treatment claimed, the experts of the parties had noted two puncture scars over the plaintiff’s left shoulder with hypetrophy.  The experts had been told by the plaintiff that Dr Chien had told her that steroid injection might be required later and yet none of the experts expressed any view that such treatment was necessary or was of any use to the plaintiff.  Both of them were of the view that the plaintiff had reached maximal medical improvement and no further treatment was required.  Dr Chien in his letter report dated 5 January 2015 only stated that the plaintiff might consider serial steroid injection to the scar.  No further information supporting the necessity of this treatment or costs for such treatment was provided.  I am not satisfied that the 1^st defendant shall be held liable for the steroid injection treatment claimed.

137.  I award the total sum of $20,000 to the Plaintiff under this head.

Special Damages

138.  The parties had agreed this head at $152,000.

Conclusion

139.  I assess that the damages payable by the 1^st defendant to the plaintiff in this Action is $595,444.  Particulars are as follows:

(a) PSLA	$280,000
(b) Loss of pre-trial earnings	$134,444
(c) Loss of future earnings	$9,000
(d) Future medical expenses	$20,000
(e) Special damages	$152,000

140.  I make an order nisi for the 1^st defendant to pay to the plaintiff interest at 2% per annum on general damages for PSLA from the date of the writ until judgment and interest at half judgment rate on damages for pre-trial loss of earnings and special damages from the date of the Incident to judgment.

141.  I also make a costs order nisi against the 1^st defendant in favour of the plaintiff for the assessment of damages proceedings including all costs previously reserved in relation to the assessment of damages.  In view of the amount of damages awarded, which is well within the jurisdiction of the District Court, the appropriate scale for the costs payable by the 1^st defendant to the plaintiff for the assessment of damages proceedings shall be the District Court scale.

142.  The above orders nisi shall become absolute after 14 days from the date hereof unless any party applies to vary them within this 14 days period.

143.  As the plaintiff is legally aided, her own costs shall be taxed in accordance with the Legal Aid Regulations.