HO SHUK MAN v. NORMAN WONG WAI NOK AND ANOTHER

HCPI 314/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 314 OF 2010

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J U D G M E N T

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1. This claim arises out of an accident which occurred on 5 July 2007. The plaintiff, who was then working as a Customer Service Supervisor (“CSS”) for the 2^nd defendant was injured when her colleague, the 1^st defendant, negligently pulled down the metal roller shutters at the shop where they were working. The roller shutters hit the plaintiff’s right shoulder causing her injuries. Judgment on liability was entered against the defendants by consent on 2 December 2010. The trial was concerned only with the assessment of damages.

INJURIES AND TREATMENT

2. The plaintiff’s injuries and treatment were summarized in the Joint Orthopaedic Report dated 9 February 2010.

3. After the accident, the plaintiff did not immediately seek medical treatment.  She consulted a bonesetter the morning after the accident.  After a total of 3 consultations without improvement, she consulted a private orthopaedic surgeon, Dr SK Lau, who found signs of swelling and local tenderness over the right shoulder.  Range of movement was full but with pain at end range.  Preliminary diagnosis was rotator cuff injury of her right shoulder.  Physiotherapy and drug treatment was given. 

4. Unfortunately, the pain persisted and she was admitted to Baptist Hospital (“BH”) where she underwent MRI.  The MRI demonstrated tear of the supraspinatus tendon (rotator cuff), sprain of acromioclavicular joint (“ACJ”) and bone contusion.  The MRI showed mild increased signal intensity into the supraspinatus tendon compatible with tendinosis changes.  She was discharged to continue with outpatient physiotherapy and drugs.  She received steroid injection to the subacromial bursa on 6 October 2007.  Operation with arthroscopy was suggested but she was reluctant.  She was referred to Hospital Authority.

5. She was first seen by the Orthopaedic Clinic of Tseung Kwan O Hospital (“TKOH”) on 6 February 2008.  She was admitted to orthopaedic ward from 7 to 10 May 2008 when Arthroscopy of her right shoulder was done.  She received physiotherapy and occupational therapy after discharge, up to February 2009 for physiotherapy and up to March or April 2009 for occupational therapy.  She had regular follow‑up at the Orthopaedic Clinic.  She started on a new course of physiotherapy since November 2009 for treatment of pain in her wrist.  She has to take full dose of the drug for pain relief.

6. At the joint examination by Dr Lau Hoi Kuen and Dr Chun Siu Yeung, orthopaedic experts appointed by the plaintiff and defendants, respectively, on 14 December 2009, she complained of:

(1)  intermittent and involuntary tremor of right upper limb;

(2)  intermittent pain in right shoulder (5 to 6 episodes a day, each for 15‑30 minutes);

(3)  cold sensation and no blood flow in fingers of right hand;

(4)  swelling of right arm and hand after 30 minutes of inactivity of the limb;

(5)  has to rely on left upper limb for activities of daily living like eating a piece of bread;

(6)  intermittent pain in left shoulder;

(7)  intermittent pain in both wrists such that cannot carry more than 2 catties (about 1.2 kg) of vegetables;

(8)  difficulty and decreased frequency of sexual intercourse since the accident; and

(9)  tend to stay away from friends, fear when facing crowds, poor mood and ill temper.

7. At the joint examination, physical examination revealed, inter alia:

(1)  no swelling or deformity of the right shoulder;

(2)  no wasting of the supraspinatus or deltoid muscle;

(3)  touching tenderness over the whole region;

(4)  arm and forearm girths of both arms were the same (ie no muscle wasting in the arms);

(5)  jerks cannot be tested on upper limbs because of severe pain upon gentle tapping with tendon hammers; and

(6)  x‑ray of right shoulder reveals no abnormal findings.

8. The orthopaedists’ findings were:

(1)  Both agreed that the cause of the pain in her right shoulder was impingement syndrome and tendinosis and partial tear of the supraspinatus tendon.

(2)  Dr Lau was of the opinion that since the plaintiff had no past history of symptoms of impingement syndrome prior to the accident and there was definite history of trauma to her right shoulder, the accident should be regarded as the precipitating cause for the pain from the degenerated rotator cuff tendon in her right shoulder.  If not for the accident, the plaintiff could certainly have remained asymptomatic for a long period of time from the date of the accident.

(3)  Dr Chun agreed that the impingement syndrom (tendinosis) was degenerative in nature and the accident probably precipitated the onset of the symptom.  However, he did not agree that in the absence of the accident, the plaintiff would remain symptom free, and was of the opinion that the degeneration would become symptomatic at any time during the course of her vocation.

(4)  Both doctors agreed that there is no direct correlation between the accident and the pain in her wrists.

(5)  Examination did not reveal signs of impingement syndrome.

(6)  Both doctors were of the opinion that the pain in her right shoulder should be of a mild degree.  The actual mobility of her right shoulder should have improved a lot after the operation and rehabilitation programme.

(7)  Dr Lau was of the opinion that the plaintiff’s main problem is residual pain on abduction, especially to shoulder level, which would be even more significant if the action is sustained or with prolonged use in such a position.  The plaintiff had reached the stage of maximal medical improvement. 

(8)  Dr Chun was of the view that with return to activities and work, the plaintiff’s condition would improve with regard to the shoulder impingement syndrome which was adequately treated with acromial decompression surgery. 

(9)  Both doctors agreed that the plaintiff should be able to continue with her pre‑injury job as a CSS with minor modification and slight reduction of work efficiency.  Dr Lau was of the view that she should avoid lifting heavy luggage, especially to or above shoulder height.

(10)  Dr Lau was of the opinion that the plaintiff will have minor problems with activities of daily living such as combing her hair or hanging up clothing.  She can enjoy activities such as badminton, tenpin bowling and swimming.  Dr Chun was of the opinion that the plaintiff has no handicap or restriction in her activities of daily living.

9. In a Supplemental Joint Medical Report dated 1 November 2012, the Orthopaedists noted:

(1)  The pain in her right shoulder should be of a mild degree and the degree of mobility should have improved a lot after her operation.

(2)  She should have been able to continue with her pre‑injury job as CSS with minor modifications and slight reduction of work efficiency.

(3)  Dr Lau was of the opinion that she needed to avoid lifting heavy luggage especially to or above shoulder height.  Dr Chun on the other hand was of the view that it was only with frequent repeated overhead exertion that her shoulder condition would be aggravated.

(4)  On the actual scope and demand of work of a tour guide, Dr Lau was of the view that placing of hand carried luggage onto overhead compartment of tourist bus or placing larger heavier luggage into the luggage storage compartment under the bus involved exertion of the arm above shoulder height and should be avoided.  Assisting young or old tour members on and off a tour bus can lead to excessive strain on the right shoulder.  Dr Chun was of the view that moving heavy luggage was usually under-arm and should pose no difficulty.  Escorting and assisting tour members does not involve over head action and the plaintiff should have no problem. 

10. In a further Supplemental Joint Medical Report dated 4 August 2013, the Orthopaedists added that:

(1)  Of the plaintiff’s complaints in the joint examination, only the pain in her right shoulder was (possibly — according to Dr Chun) caused by the injuries sustained in the accident.  Dr Chun elaborated that the description of pain (not related to movement of the shoulder) is inappropriate to rotator cuff lesion.

(2)  Of the plaintiff’s residual disabilities, the pain in her right shoulder with abduction especially to above shoulder height, is possibly caused by the injuries sustained in the accident. Dr Lau added that mild stiffness of her right shoulder was also a consequence of her injury.

(3)  Of the effect of the plaintiff’s other unrelated medical conditions on her ability to resume pre-accident employment, Dr Lau was of the opinion that apart from neck pain due to mild degeneration of the C4-C5 disc, there was no evidence that she suffered from carpal tunnel syndrome, tennis elbow, de Quervain’s disease or trigger thumb and those have little effect on her ability to resume pre-accident employment.  Dr Chun was of the opinion that the tennis elbow and de Quervain’s disease would affect her work as a tour guide.  Although they could be controlled, they could be recurrent after a period of remission. 

11. In her Revised Statement of Damages, the plaintiff complains of:

(1)  Intermittent and involuntary tremor of her right upper limb;

(2)  Intermittent pain in her right shoulder, mild at rest and increased by sitting for more than 30 minutes;

(3)  Cold sensation and no blood flow in the fingers of her right hand;

(4)  Swelling of right arm and hand after 30 minutes of activity of daily living;

(4)  Intermittent pain in left shoulder;

(5)  Intermittent pain in her wrists — cannot carry more than 2 catties (ie 1.2 kg).

(6)  Difficulty and decreased frequency of sexual intercourse.

(7)  Tending to stay away from friends, fear when facing a crowd, poor mood and ill temper. 

THE PLAINTIFF’S CLAIMS

12. Apart from general damages, the plaintiff claims for loss of earnings (pre‑trial and future loss) and other special damages including hospital/medical expenses, tonic food and travelling expenses. 

13. The plaintiff was dismissed from her employment on the third anniversary of the accident on 5 July 2010.

14. The plaintiff’s claims for pre‑trial loss of earnings are based on the assumption that apart from her basic salary, she would have been eligible for additional earnings in acting as a tour leader averaged out to $1,336.26 per month.  In addition, that she would have resumed working as a tour leader in July 2012 with earnings of about $21,750 per month.  The plaintiff claims that as a result of her injuries, she is no longer able to act as a tour leader and has thus lost this added income she would otherwise have earned. 

15. The plaintiff’s claim for future loss of earnings is based on the assumption that she is now only able to work as a part‑time sales person with a monthly income of about $8,000.  She claims $2,598,750 on the basis of a multiplier of 15.

16. In addition, she claims for medical expenses in the sum of $37,690.72, tonic food in the sum of $10,000 and travelling expenses in the sum of $6,400.

17. The defendants’ case is that the plaintiff has substantially recovered from her right shoulder injuries and has not suffered any loss beyond May 2009 or latest December 2009 (the date of the joint examination).  Further, that she has failed to establish any intention to resume working as a tour leader from July 2012 onwards, and has failed also to establish that a tour leader would earn substantially more than the plaintiff’s earnings as a CSS.  On that basis, the plaintiff’s loss is said to be $274,532.

18. On other special damages, the defendants say that medical expenses should be not more than $10,000, travelling expenses should be not more than $2,000 and tonic food should not exceed $3,000 to give a total of $15,000.

19. The issues would therefore be:

(1)  The plaintiff’s injuries:

(a)  the extent of the plaintiff’s residual pain and disability; and

(b)  whether the plaintiff’s complaints were caused by the accident.

(2)  Employment:

(a)  whether the plaintiff intended to return to work as a tour leader in July 2012;

(b)  whether the plaintiff would have been able to earn substantially more as a tour leader than as a CSS;

(c)  whether the plaintiff is now unable to work as a tour leader, and if so, whether the cause of her inability to so work was the accident; and

(d)  whether the plaintiff’s injuries has caused her to be unable to resume work as a CSS.

(3)  Given the above, the appropriate awards for PSLA, pre‑trial loss of earnings, future loss of earnings and special damages. 

THE PLAINTIFF’S RESIDUAL DISABILITIES

20. It is notable that in the Joint Medical Report, both doctors were of the view that the plaintiff’s pain in her right shoulder (at date of examination) should be of a mild degree.  Both doctors considered that the plaintiff should be able to continue with her pre‑injury occupation with minor modification and slight reduction of work efficiency. Both doctors considered that the plaintiff should have only minor, if any, problems with activities of daily living.  Dr Lau considered that she should be able to continue with her favourite pastimes like badminton, tenpin bowling and swimming (all activities which require significant movement of the shoulder and arm).

21. The plaintiff herself, however, presented a totally different picture.  In her witness statement which was adopted as her evidence in chief, she says she feels pain in her upper right limb and shoulder, cannot lift, move or carry heavy objects, feeling cold in her right hand, with tremors in the right upper limb, and swelling if she did not move her right hand.  She says she cannot write or use the computer, and suffers constantly from pain.  In her oral testimony, she said that she could only sleep for 4 hours and finds it difficult to get up, having to spend an hour stretching in the course of getting up very slowly.  She suffers from pain in the shoulder down to the whole of her back, pain which is severe.  The pain is described as being 8 on a scale of 1 to 10 and after stretching would subside down to 7.5.

22. She was cross‑examined extensively on her pain and disabilities.  On a number of occasions, she was demonstrated to have given testimony about her pain which was self‑contradictory, or was not reflected in the medical reports, whether of the expert reports or those of the treating doctors.  She tried to explain these lapses away by saying that the pain fluctuated and that she forgot to mention the severity of the pain to her doctor.  She was forced to say that the expert report was a partial mis‑assessment by her own expert of her condition. 

23. The plaintiff’s attention was specifically directed to a Consultation Summary compiled by Dr Ho Hok Ming, Associate Consultant of the Department of Orthopaedics and Traumatology (“DOT”) of TKOH on follow up on 19 May 2009.  The significant findings were that that there was no more neck pain/trapezious pain, no more bilateral upper limb numbness, no rest pain/nocturnal attack, no weakness/clumsiness of hands, mild deltoid and rotator cuff wasting, no shoulder pain, no tender spot, AROM (active range of motion) preserved, overall power 4/5.  The plaintiff disagreed with these findings, being forced to say that she did complain about pain but that the doctors did not record her complaint.

24. Dr Lau and Dr Chun were also called and supplemented their reports with oral testimony.  The testimony of the experts was very helpful in helping me to understand the mechanics of the plaintiff’s injury and how it might cause her pain, and how surgery would have helped the plaintiff to recover from her injuries.

25. In cross‑examination, Dr Lau was able to confirm that the absence of muscle wasting of the plaintiff’s supraspinatus and deltoid muscles suggest that the plaintiff was not in much pain and that she was using her right shoulder.  This recovery of muscle bulk is inconsistent with the plaintiff’s evidence that she cannot use her right shoulder/hand for eating a piece of bread.  He was asked about the plaintiff’s complaint of severe pain upon gentle tapping with tendon hammers and confirmed that there was no organic reason for such pain, and that such pain is a sign of symptom magnification.  He agreed that the plaintiff could lift 5 kg hand baggage into an overhead compartment, even 2 to 3 times and would not suffer ill effects.  He clarified that she should have trouble only above shoulder height. 

26. Dr Chun, in his testimony, described the plaintiff’s degree of movement of right shoulder upon examination as almost full, very functional.  They had tested for impingement at the examination and there was no sign of impingement.  He was of the opinion that the plaintiff could lift heavy luggage, onto a weighing machine and off a luggage carousel. She would not face problems lifting luggage over her shoulder for even 10 repetitions.

27. In the end, there was very little to set apart the experts’ views.  Dr Lau was more inclined to accept the plaintiff’s self‑reported complaints of pain, and would more readily accept that pain would be caused upon raising of arms.  Essentially, both experts agreed that the plaintiff’s complaints are not consistent with their medical findings. 

28. I had the opportunity to observe the plaintiff over the 4 days when she was giving evidence in the witness box.  She arrived in court in a wrist splint on her right hand.  Initially in her testimony, she was very stiff with her right hand and arm, hardly moving the same in the course of her testimony.  This was especially pronounced during the course of her evidence when she was being cross‑examined about her injuries and disabilities.  However, in the second day of her testimony after a series of questions about her employment and her ability as a tour leader, I noticed that her right hand became active and she had no problem in using her right hand to emphasize points in her evidence.  This tendency was even more pronounced on the 4^th day of trial when I observed her using both fingers to count, with no evidence of any discomfort in using her hands, and even interlacing the fingers of both hands at one point in the evidence.

29. This contrasted very greatly with how she initially presented to the court, with her right arm being held unnaturally still.  It is also inconsistent with her testimony that she cannot even use her right hand to eat a piece of bread, or that she would require half an hour to write a few lines of script. 

30. Having considered the evidence, particularly the contemporaneous medical evidence, I find that the plaintiff had substantially recovered from the injuries caused by the accident by May 2009 when it was observed that her right shoulder wounds (from surgery) were all healed and matured, that there was no shoulder pain, no tender spot, AROM preserved, no impingement sign, overall power 4/5 and only found to have mild muscle wasting on her follow up appointment at DOT of TKOH.  By December 2009 when she was examined by Dr Lau and Dr Chun, the muscle wasting had disappeared.  I accept the experts’ views that the plaintiff is readily able to perform activities of daily living.  While I cannot rule out that she may suffer some residual pain, I find that any such pain is at most minor and would have little, if any, effect on her.

EFFECT OF THE PLAINTIFF’S INJURIES ON HER EMPLOYMENT

31. Given my findings above, I find also that the plaintiff’s injuries would not cause her to be unfit for her pre‑injury employment as a CSS, or for that matter, as a tour leader.

32. The plaintiff says that she is unable to resume work as a tour leader, saying that she cannot help tour members with their luggage, and such assistance is required at the airport when putting luggage on the scales upon checking in, retrieving luggage from carousels, putting luggage into the bottom compartment of tour coaches, assisting tour members to put their luggage into overhead compartments on board airplanes, and helping tour members on and off tour coaches. 

33. The defendants’ answer to this is two‑fold. First of all, they say that a tour leader is not required to assist tour members with their luggage.  It is nowhere within the 2^nd defendant’s published “Guidance for Tour Leaders”.  They also seek to say that there are porters and bell boys at hotels to deal with luggage, that tour members are required to personally attend to their own luggage at the airport and that the coach driver and local guides will stow the luggage on board tour coaches.  The tour leader is the last to board the airplane and would not need to help with luggage onto overhead compartments.

34. Secondly, they rely on the medical evidence to say that the plaintiff’s ability to work as a tour leader is not hampered by her injuries.  Relying on the evidence of Dr Chun that she could lift objects overhead for 10 times (2 to 3 for Dr Lau) without any ill effects, and that she is in also able to lift heavy objects, the defendants say that if the plaintiff did intend to resume working as tour leader, her injuries would not prevent her from doing so.

35. Much testimony was devoted to the question of the duties of tour leaders and whether they are required to assist tour members with their luggage.  The plaintiff called in aid the testimony of Gary Ng, a tour leader with some 17 years’ experience.  The defendants relied on the evidence of Stanley Cheung, their Human Resources Officer, who relied on the 2^nd defendant’s guide book to say that helping with the tour members’ luggage.  Stanley Cheung, however, was not of great assistance on this issue because he had never been a tour leader.

36. The defendants’ other witness, Mr Johnny So was forthcoming about tour leaders helping tour members with their luggage.  He said this was not encouraged by the 2^nd defendant and was up to the individual tour leader, and that tour leaders would do so.  He himself did so.  He also agreed that tour leaders would assist those members in need with their luggage at hotels where there were no bellboys.

37. I accept the evidence of Mr So. Although a tour leader is not required to help members with their luggage, a tour leader would tend to do so, especially to help those members in need of such assistance, like elderly members or those with young children.  I find that this is only natural and whether the motivation is to increase the chance of gratuities at the end of the trip, or whether to simply provide a helpful service, a tour leader will oftentimes help members with their luggage at one stage or another. 

38. I do not accept, however, that this is done as a matter of course.  Members will be aware in a general sense of the duties of a tour leader which cannot be equated to a porter.  While an occasional helping hand is appreciated, the tour leader has other responsibilities and members would not expect the tour leader to help everyone with their luggage.  Nor is it likely that a tour leader (especially a fairly petite lady) who does not generally help out with members’ luggage would face complaints from the members or otherwise get into trouble with the tour agency. 

39. Furthermore, having considered the injuries and disabilities suffered by the plaintiff, I do not accept that the plaintiff is unable to provide assistance with tour members’ luggage should the occasion require it.

40. Given my findings above, it is not strictly necessary for me to make any findings on whether the plaintiff did intend to resume working as a tour leader in July 2012, and what her earnings as a tour leader would be as compared to what she is able to earn as a CSS. However, for completeness’ sake, I deal briefly with these two issues in the case.

41. The plaintiff says that she originally worked as a tour leader but changed to be a CSS in order to spend more time with her daughter.  Her plan was to resume working as a tour leader in July 2012 when her daughter was about 16 and was better able to take care of herself. This would give her the opportunity to increase her earnings so that she could save up for her daughter’s education overseas. 

42. Unfortunately, this version unraveled under cross‑examination, where it was revealed that although she had initially lived with her daughter after her daughter was born, she moved in with her husband after he bought a property leaving her daughter in the care of her mother. This situation did not change even after her divorce.  Thereafter she moved to live with her boyfriend but her daughter stayed with her mother, and only saw her daughter on weekends.  As regards the reason why July 2012 was the date when she planned to resume work as a tour leader, this was because the daughter would be 16 and would face her university entrance examinations in two years’ time.  Being worried about the chances of her daughter being admitted to a local university, she hoped to save enough so that her daughter could continue her studies overseas.  I find this to be at best unrealistic.  Even if she were able to earn more than she otherwise would as a CSS, on her own claim that would be about $10,000 per month or $120,000 per year.  This would hardly be enough to cover the cost of tuition, let alone the cost of living overseas. I find that the plaintiff did not have this definite intention to return to her previous work as a tour leader. 

43. As to the likely earnings, the plaintiff relied on the evidence of Gary Ng who says he is able to earn an average of $35,000 per month.  However, in his returns to the Inland Revenue Department (“IRD”), he reports his earnings as $130,000 to $140,000.  While I accept that some tips and other earnings may be paid in cash and the temptation exists to not report the same to the IRD, I am not convinced that Mr Ng’s actual earnings is three times his reported earnings.  I am particularly hampered in this by the lack of any documentary evidence to support this large figure. I find that I am unable to rely on Mr Ng’s estimate as being an accurate reflection of his earnings.

44. The plaintiff herself estimates that she would be able to earn around $24,000 per month as a tour leader.  This is based on Mr Ng’s estimate of his own earnings.  Since I cannot rely on Mr Ng’s estimate of his earnings, by the same token I am likewise uncertain as to what the plaintiff would earn if she resumes working as a tour leader.  This is further compounded by the fact that Mr Ng is well experienced having worked continuously as a tour leader for 17 years (except for a short period of three years when he assisted his uncle in his uncle’s business) and better qualified than the plaintiff.  From his testimony, I observed that Mr Ng is a very outgoing person and well suited to the profession.  His earnings from gratuities and other additional items would likely be higher than the plaintiff’s who strikes me as significantly less outgoing and having a less “sunny” demeanour.  In the end, there are simply too many uncertainties in the plaintiff’s case about her potential earnings as a tour leader that I am unable to find that she would have earned more as a tour leader than as a CSS.

PSLA

45. I have been referred to a number of cases on PSLA. 

(1)  Zarir Khalid v Gurung Durga Bahadur and Another, unreported, DCPI 2562/2011.  The plaintiff suffered multiple injuries arising out of an assault.  Of particular relevance is the anterior disclocation of his left shoulder with labrum and bone damage.  He suffered stiffness and weakness in the left shoulder which was permanent according to the medical evidence.  Master WY Ho awarded $250,000 in April 2014.

(2)  So Yuk Kam v Lau Kam Yuen t/a Ngai Shing Construction and Another, unreported, HCPI 5/2011.  The plaintiff sustained right shoulder dislocation with fracture and associated pain and bruising.  He had what was described by the expert as rather severe residual pain, stiffness and weakness.  The range of motion had decreased.  He was unable to work with his right hand over his head.  Master de Souza awarded $450,000 in May 2013.

(3)  Lam Chan Hung v Hang Yue Engineering Limited and Another, unreported, HCPI 121//2011.  The plaintiff suffered right foot and ankle fractures, and fracture of his L3 with retropulsed bone fragments.  He was subsequently diagnosed with adjustment disorder with features of PTSD.  Bharwarney J awarded $620,000 in March 2013.

(4)  Chau Chi Wah v Wong Kwok Ming, unreported, DCPI 1059/2007.  The plaintiff suffered soft tissue injury to the shoulder which caused mild tendinitis of the rotator cuff giving rise to painful arc syndrome and restricted motion in the right shoulder.  In what was described as relatively minor injuries, Deputy District Judge J Ko awarded $100,000 in April 2008.

(5)  Or Chun Kwong v Fu Sau Lun, Jason and Others, unreported, HCPI 384/2005.  The plaintiff suffered right shoulder acromio‑clavicular joint subluxation, undergoing three operations to re‑align the dislocated shoulder.  Both experts described the residual disability as minor and would not affect his pre‑injury employment.  Master J Wong awarded $200,000 in December 2006.

46. Taking into account the above cases, I consider an appropriate award under this head would be $250,000.  There is no doubt that the plaintiff did suffer a painful injury, but that had to a large extent resolved. 

47. In coming to this figure, I do not make any allowance for the possibility that the degenerative changes in the plaintiff’s shoulder would have become symptomatic at some stage.  Although Dr Chun said that the degenerative change would likely become symptomatic in 5 to 10 years’ time, he agreed that degenerative changes are not uncommon but may not necessarily become symptomatic.  Drawing an analogy with back pain, most people’s spine have degenerative changes which may lead to back pain.  However, some remain pain free.  The evidence in this respect is far from satisfactory and no reduction in the award should be made on that account. 

LOSS OF EARNINGS

48. In view of my findings above, by the date of the Joint Examination in December 2009, the plaintiff should have been fit to return to work, even though she is still receiving sick leave.  Although the fact that the plaintiff has been receiving sick leave certificates is a matter that I have to consider, even Mr Clough, for the plaintiff, does not suggest that she should be entitled to claim full loss of earnings up to trial.  Even though the plaintiff should have been fit to return to work by December 2009, I would make a further allowance of 3 months up to end of March 2010 in recognition of the fact that the plaintiff may need some time to come to terms with her actual recovery. 

49. Adopting the calculations used by the defendants:

(1)  From 5 July 2007 to 30 July 2007, her loss is $8,040.60;

(2)  From 1 August 2007 to 30 April 2008, her loss is $96,277.50;

(3)  From 1 May 2008 to 31 March 2010, her loss is $11,697.50 x 22 = $257,345;

(4)  Total loss of earnings (including loss of MPF) is: ($8,040.60 + $96,277.50 + $257,345) x 1.05 = $379.746.26.

LOSS OF EARNING CAPACITY

50. The principles in relation to this head of award are well known and need no repetition here.  The plaintiff claims an award of $100,000 under this head.  The defendants says that the plaintiff is not entitled, or at most to $30,000.  Given that both experts allow for some, albeit minor, effect of her residual disabilities on the plaintiff which would disadvantage her in the labour market, in view of the plaintiff’s relatively young age which means that she may face this disadvantage in the labour market more than once, I consider that an appropriate award under this head is $50,000.

SPECIAL DAMAGES

51. The plaintiff claims special damages in the Revised Statement of Damages in the sum of $54,090.72 made up of medical expenses of $37,690.72, tonic food $10,000 and travelling expenses of $6,400.  This is increased to $67,569 in the plaintiff’s solicitors’ letter to the defendant’s solicitors, dated 22 September 2014 and adopted by the plaintiff’s counsel in final submissions.  These sums are disputed by the defendants.

52. Medical expenses as originally claimed in the Revised Statement of Damages was roughly broken down by the hospital or clinic attended by the plaintiff.  The largest proportion, however, was attributed to “other medical expenses”.  In the breakdown provided in the letter from the plaintiff’s solicitors, the medical expenses were more clearly particularized, but reduced to $30,169.  The sums claimed are from 4 September 2007 to 2 September 2014.  The plaintiff admits the claim up to 14 December 2009, in the sum of $17,284.  Given my findings above, I would allow claims for medical expenses up to end of March 2010.  According to the table attached to the plaintiff’s solicitors’ letter of 22 September 2014, this comes to $19,044.

53. The claim for tonic food in the sum of $10,000 is resisted by the defendants on the ground that the plaintiff has neither disclosed any receipts therefor nor otherwise provided any evidence on how this sum was spent and offer the sum of $4,000 despite the lack of evidence in support.  Despite the lack of evidence, in view of the relatively long period of convalescence of the plaintiff, I am persuaded that $10,000 is an appropriate award.

54. Travel expenses of $6,400 were claimed at 128 trips of $50 each.  In the plaintiff’s solicitors’ letter of 22 September 2014, this was revised to 274 trips at $100 each, totaling $27,400.  Nothing has been explained about how this sum was calculated and why there was such a large increase in not only the number of trips, but the cost of such trips.  The defendants offer $4,800 based on the number of visits made as reflected in the plaintiff’s letter of 22 September 2014 at $50 per trip.  Based on the number of claims made for medical expenses (including two different claims which may be made on the same day) there are 130 instances up to end March 2010.  In the absence of evidence about the cost of each trip, I will adopt the sum put forward in the Revised Statement of Damages.  The award under this head comes to $6,500.

55. Total Special Damages are $19,044 + $10,000 + $6,500 = $35,544.

CONCLUSION

56. The total award comes to:

PSLA	$250,000.00
Loss of Earnings	$379,746.26
Loss of Earning Capacity	$50,000.00
Special Damages	$35,544.00
Total	$715,290.26
	=========

57. Interest on PSLA is awarded at 2% per annum from date of writ to date of judgment.  Interest on special damages is awarded at 4% per annum from date of accident to date of judgment.

58. The awards will have to be reduced by the amount of Employee’s Compensation received of $680,000. 

59. I make an order nisi that costs of this action be paid by the defendants to the plaintiff, to be taxed if not agreed.