TSOI WING TAK MICHELLE v. LAU SZE NI

                                                                                            HCPI 926/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 926 OF 2005

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Dates of Hearing : 19 – 22 and 30 March 2007

1. This is an action for damages for personal injury arising out of a motor vehicle accident which occurred on 17 October 2001 (“the accident”).

2. Liability is not in issue.  On 22 April 2003 in the District Court, a consent order was made as follows :

“1.    Judgment be entered for the Plaintiff against the Defendant with damages to be assessed;

2.      The costs of this action, up to and including the date of the Order, be to the Plaintiff to be taxed, if not agreed.”

3. On 8 September 2005, Master K.W. Wong in the District Court ordered that the action be transferred to the personal injuries list of the Court of First Instance.

4. In consequence, the matter has come before me for an assessment of the plaintiff’s damages.

Background

5. Tsoi Wing Tak, Michelle (“the plaintiff”) was born on 20 October 1974.  At the time of the accident, she was aged 27, married with one infant child.  She was then and still is employed by the Civil Aviation Department (“CAD”) on permanent and pensionable terms.

6. On 17 October 2001, shortly after midnight, the plaintiff was a passenger in a taxi returning to her home.  Outside No.8 Conduit Road, Hong Kong the taxi collided with a private car travelling in the opposite direction.  That private car was driven by Lau Sze Ni (“the defendant”).  The plaintiff was taken by ambulance to the Accident and Emergency Department of Queen Mary Hospital for treatment and was subsequently discharged without being admitted.

7. The plaintiff suffered contusion injuries to the chest-wall caused by the seat belt in the taxi.  From those injuries she has recovered completely and there is no residual disability arising.  However she also suffered what is commonly described as a “whip lash” injury to her neck. 

8. After the accident, the plaintiff was granted sick leave from 18 October 2001 to 7 December 2001.  She then returned to work albeit that she needed to wear a neck brace for about six months.

9. The plaintiff has said, and I accept, that following the accident she had pain in the upper chest-wall, back and neck.  She said that initially her neck was stiff and restricted in movement and she was uncomfortable in her day-to-day activities.  She required a neck support pillow to sleep properly and required medication to alleviate the pain.

The plaintiff’s employment

10. At the time of the accident the plaintiff was employed by the Civil Aviation Department (“CAD”) as an Air Traffic Flight Services Officer (“ATFSO”) at the rank of ATFSO Grade II.  On 28 February 2002, she was promoted to the rank of ATFSO Grade I.  At the time of the accident the plaintiff’s salary was $17,505 per month which increased to $30,100 after her promotion.

11. A proper appreciation of the plaintiff’s case requires me to describe in some detail the operation of that part of the CAD where the plaintiff is employed.   

12. The post that the plaintiff initially occupied and that to which she was promoted has been described as an “operational post”.  This requires the officer to work irregular hours in that the starting times are staggered.  Generally speaking, starting times range from 7:45 a.m. (the earliest) to 4 p.m. (the latest).  However, all of these except one (the night shift), result in an 8-hour day.  The night shift is from 9:30 p.m. to 7:45 a.m. the following day.  Officers are assigned starting times on a rotating roster and would normally be expected to perform one night shift in a 10-day cycle.  These officers form part of the 24-hour per day service provided to maintain flight operations at the Hong Kong International Airport.  Hence the need for staggered start times.  Most, if not all, the ATFSO I’s fill operational posts.

13. An ATFSO I assists in the control tower and on the ground in the management of both aircraft and ground transport movement.  From the descriptions given, it is a challenging position which requires extended periods of concentration and attention to detail.  The normal core duties are described as :

(1)  flight data and aeronautical information processing using a computer;

(2)  airfield surveillance from the Control Tower; and

(3)  radio/telephone communications with ground vehicles and air traffic control units and the like.

14. After returning to work following the accident, the plaintiff was exempted from operational duties and was assigned to what have been described as light duties working normal office hours.  She said that in this period the neck pain was reduced but would recur from time to time, requiring medication and manipulation by a chiropractor.  However, it was manageable.

15. On 10 July 2002, the plaintiff was allocated the use of an operational quarter in Kowloon Tong.  That is to say accommodation provided by the CAD for officers on operational duties.  The plaintiff and her family moved into these quarters on 18 August 2002.  It was a condition precedent to the allocation and occupation of operational quarters that the officer be performing operational duties.  The plaintiff resumed operational duties on 17 August 2002.  I note from the plaintiff’s evidence that operational quarters were a much sought after and coveted benefit and that the plaintiff had for some time wanted to have these assigned to her.  Prior to the accident she had applied unsuccessfully for an allocation on several occasions.

16. It was her evidence that after resuming operational duties in August 2002, the concentration required and nature of the operational duties was such that the pain and discomfort associated with her neck injury returned to the extent that she was once again compelled to request to be relieved of those duties.

17. On 27 May 2003 the plaintiff’s solicitors wrote to the CAD on her behalf requesting that she be again exempted from operational duties and in support of that request submitted a report from Dr Tsoi Chi Wah, Danny (“Dr Tsoi’s 1^st report”).  As a consequence the plaintiff was re-assigned to perform non-operational light duties and exempted from the staggered start times.  There is as I understand no actual provision within the rank of ATFSO for an officer to be removed from operational duties to light duties but the CAD, given the plaintiff’s then ongoing discomfort and in consequence of Dr Tsoi’s 1^st report, arranged for her to be temporarily exempted.

18. As a consequence of the request made by the plaintiff’s solicitors and Dr Tsoi’s 1^st report and in accordance with Civil Service Regulations, a medical board was convened on 8 January 2004 to assess the plaintiff’s fitness to perform the principal duties of her rank (“the medical board”).  She was examined by medical practitioners assigned by the Hospital Authority and the medical board concluded that she had :

(i)   suffered a neck injury in a traffic accident in October 2001;

(ii)   variable attacks of neck pain which were worse at the time of concentration; 

(iii)  pain and restriction of neck extension; and

(iv)  problems in tilting her head to view information at the control centre.

Under the heading “Working Ability”, they concluded :

“The officer is affected or likely to be affected in performing the principal duties of his rank/post in the following manner:

-   Problems in viewing information at the control centre

-   Problems in performing duties that requires concentration and duties for long hours”

19. As a consequence of these findings, the plaintiff was in the main part assigned to clerical and occasional flight simulator duties.  However, she was no longer eligible for or entitled to occupy an operational quarter.  She was so advised by letter on 3 May 2005 and vacated the operational quarter on 13 August 2005.  Since vacating those premises, she and her husband and child have lived in rented accommodation.

20. The plaintiff has not returned to operational duties and has said in evidence that whilst she would wish to do this as she enjoys the responsibilities of operational duties, her neck pain and discomfort prevent this.  She has maintained throughout that the levels of concentration required to properly perform the operational duties at the rank of ATFSO I, have since the accident and will in the future, cause to her such a degree of pain and discomfort so as to preclude this option.

21. In the plaintiff’s Revised Schedule of Damages dated 17 August 2005 it is stated :

“The Plaintiff has not been able to return to operational duties since the date of accident.”

This is not correct as can be seen from the above.  She did return to operational duties subsequent to being assigned operational quarters in 2003 albeit that nine months later she applied again to be exempted.

The plaintiff’s present complaints

22. In evidence the plaintiff has said that she still has regular neck pain which is more intense when the weather changes, or she is stressed.  Occasionally she is required to use a neck support pillow when the pain is at its worst.  She says that her physical relationship with her husband has been affected.  She takes pain-killing medication as and when required and says that without medication she is uncomfortable most of the time and has difficulty sleeping.  It was her evidence that there has been no significant improvement in her condition since the last time she saw Dr Tsoi, which was in December 2004.

23. She did say that on a scale of 1 to 10, the pain was less when she was performing clerical duties as opposed to operational duties.  When performing operational duties the pain was in the range of 8 to 9, whereas presently doing clerical duties, it was in the range of 5 to 6.  She has not performed operational duties for almost five years.

24. It is against this background that I come to consider the plaintiff’s case.

25. There are five heads of damages pleaded by the plaintiff, they are :

(1)   pain, suffering and loss of amenity (PSLA);

(2)   pre-trial loss of earnings;

(3)   special damages;

(4)   post-trial loss of earnings, including loss of promotion prospects and pension benefits; and

(5)   loss of operational quarters.

26. The real issues revolve around (1), (4) and (5).  Items (2) and (3) are agreed.

Dr Tsoi Chi Wah, Danny (Dr Tsoi)

27. Dr Tsoi was originally engaged by the plaintiff’s solicitors to prepare a report for the purposes of these proceedings.  On 14 December 2002, having examined the plaintiff, he wrote :

“PRESENT PROBLEMS

1.   Neck pain, soreness and ache discomfort after working continuously for two to three hours.  Occasionally has to take pain-killer.

2.   Neck pain becomes worse upon change of weather.

3.   Pain and sensation of something blocking movement on extension of neck.

….

5.   Neck pain when lifting up child for longer duration.

6.   Neck pain often disturbs sleep.”

28. He also noted that her physical relationship with her husband had been affected.

29. He noted on physical examination of her neck :

“(i)   normal alignment;

(ii)   local tender spots over C5 to C7 at midline;

(iii)   mild degree of paraspinal muscle tenderness on right side;

(iv)  vague tenderness over right scapular group of muscles; and

(v)   absence of muscle spasm.

He observed that there were no apparent neurological changes and a radiological examination of the cervical spine revealed no abnormalities.

30. He concluded on that occasion that the sprain injury to the plaintiff’s neck appeared to be rather severe given that she was still suffering pain despite the fact that it was over one year from the date of the accident.  He thought that her neck pain could last for a few more years and when appropriate analgesics and physiotherapy may be required.  He concluded however that it was most fortunate that there were no neurological changes.  He did not envisage any complications with her future prognosis, but did consider that she would encounter inconvenience and difficulty in performing long hours of computer work and that she may not be able to perform overtime duties (i.e. more than eight hours a day).  That was his opinion in December 2002.

Dr Tsoi’s 2^nd report

31. On 29 November 2004, the solicitors for the plaintiff and the defendant requested Dr Tsoi to prepare a joint medical report for the purposes of these proceedings (“Dr Tsoi’s 2^nd report”).

32. A proper evaluation of Dr Tsoi’s 2^nd report and its significance insofar as the plaintiff’s case is concerned necessitates an examination of the instructions to Dr Tsoi for the purposes of the preparation of that report.  Those instructions included the following :

“Your report should cover the following :-

….

2.   Diagnosis;

….

6.    Is there any further treatment now, that would assist recovery and, if so, what treatment and what would her condition be after this;

….

9.    Prognosis;

10.  We have been informed by Civil Aviation Department that the duties of Madam Tsoi, as Air Traffic Flight Services Officer I, include flight data and aeronautical information processing using computer terminals, airfield surveillance from the Control Tower, radio/telephone communications with ground vehicles and air traffic control units at neighbouring countries.  The job necessitates working irregular hours and the longest shift under the roster system is as long as 10 hours 15 minutes.  Please let us have your further comments thereon.

11.  What type of work do you think Madam Tsoi is now fit to perform and, if you advise further treatment, after this is completed.

12.   Percentage impairment of the whole person;

….”

33. I note that by the time the plaintiff presented to Dr Tsoi for the purposes of the preparation of the joint report, she had, on the basis of his 1^st report, applied for and been exempted from operational duties.  Furthermore, she had been examined by a medical board which had confirmed that she was incapable of performing the principal duties of her rank.  Dr Tsoi had been provided with a copy of the medical board report.

34. In his report dated 11 December 2004, Dr Tsoi described her complaints as follows :

“1.  She notices her neck was in similar condition in the past 2 years.  The neck pain fluctuates in intensity and becomes worse upon change of weather.

2.   The neck pain will disturb her sleep, occasionally she has to take sleeping pills.

3.   There is easy fatigue of neck and she cannot perform continuous desktop work.

4.   The neck is stiff on extension.

….”

He again noted, as he had in his 1^st report, that her relationship with her husband had been affected.

35. He said that Ms Tsoi complained to him of persistent neck pain over the past two years and that she had continued to receive treatment throughout that time.  He was told that during attacks of pain she used to take analgesics for symptomatic relief and that she also had chiropractic treatment about every two weeks.  He noted at the commencement of this report that :

“After the expiry of sick leave, Ms. Tsoi had resumed her pre-injury job.  However, she was exempted from night duties and could work only 8 hours a day.  Her duties mainly involved in computer and clerical work.  Handling of files were also required.”

36. In his report he made the following observations of relevance : 

“1.  In a traffic accident occurring on 17^th October 2001, Mr. Tsoi injured her neck and chestwall.  The chestwall contusion recovered completely and leaves no residue.

2.  On the other hand, the neck pain persists despite more than 3 years has elapsed.  Having examined Ms. Tsoi the second time, I maintain my previous view that she suffers from whiplash injury to her neck.

3.  Whiplash injury is a term to describe soft tissue injury of the neck region after abrupt flexion and extension of the neck, which is mostly caused by sudden acceleration and deceleration after vehicle collision.

4.  In Ms. Tsoi’s case, she only suffered from a milder form of whiplash injury.  There was no major structural damage and the nervous system was intact.  However, it is not uncommon to have residual neck pain that lasts for years even after a mild sprain injury.  The described symptoms are consistent with the diagnosis of whiplash injury of neck and are mainly caused by the subject accident.”

Again, it was his opinion that her overall prognosis was good and he did not expect her to develop any complications.  He did expect her to have some residual neck pain for at least a few more years and that apart from analgesics and intermittent chiropractic manipulation no further treatment was required.  He was of the opinion that her neck condition and the residual neck pain accounted for a 3% permanent impairment of the whole person.  More importantly, however, he said this :

“8.  Ms. Tsoi is considered fit to resume her pre-injury job as an Air Traffic Flight Service Officer.  However she is recommended not to work for more than 8 hours a day and shift duty should be discouraged (inadequate rest will cause aggravation of neck pain).”

37. I have included the instructions to Dr Tsoi because a critical part of these proceedings, as will be seen, is the future deployment and, in particular the promotion prospects of the plaintiff.  It must be said at the outset that nowhere in either of his reports does Dr Tsoi say that the plaintiff is unfit for operational duties.  In his 1^st report when she was still assigned to operational duties, he cautioned against long hours of computer work and overtime, which he defined to be in excess of eight hours per day.  In his 2^nd report when she was not on operational duties, he considered that she was fit to resume her pre-injury job (operational duties) with the caveat again, that working more than eight hours per day should be discouraged.  It is to my mind clear beyond peradventure that Dr Tsoi was alive to the fact that the plaintiff was not at the time of the 2^nd examination then performing operational duties but was medically fit to resume same, notwithstanding that he expected the plaintiff to have ongoing residual pain.  He considered that with appropriate management (analgesics and physiotherapy (chiropractic)), no further treatment was required.  He was adamant in both reports that the plaintiff’s whiplash injury was of the milder form albeit that at the outset it led to severe pain.  He did not consider that it was uncommon to have residual neck pain after three years.  He noted in his 2^nd report that : “Further sick leave is generally not required.”

38. The final observation made by Dr Tsoi in his 2^nd report was as follows :

“Ms Tsoi can enjoy swimming and cycling.  She will have no difficulty performing all activities of daily living.”

DAMAGES

39. The plaintiff’s claims for :

(i)    loss of operational quarters; and

(ii)    post trial loss of earnings, including loss of promotion prospects and pension entitlements

are based upon the premise that she will never resume operational duties and will therefore not be promoted.

40. At the heart of this issue is the plaintiff’s assertion that :

“I am not fit for operational duties and the reports of Dr Tsoi and the Medical Board suggest I will never be.

The above appears in the plaintiff’s supplemental statement filed in these proceedings.  In evidence before me she maintained that position.

41. Contrary to what the plaintiff has said in her statement and in her oral evidence before me, Dr Tsoi was in both reports optimistic about the plaintiff’s recovery.  He considered that she had suffered a soft tissue injury to the neck.  There was no structural or neurological damage.

LOSS OF OPERATIONAL QUARTERS

42. On 17 August 2005 the plaintiff filed a revised schedule of damages claiming inter alia an amount of $4,080,000 as damages for the loss of operational quarters.  On 4 September 2005 the plaintiff’s claim was transferred from the District Court to this court.

43. The substance of the plaintiff’s case in this regard is based entirely on the assertion that by reason of the injury sustained she was unable to perform operational duties and was consequently ineligible to occupy operational quarters.  At the time the plaintiff entered into the operational quarters, in August 2002, she had resumed operational duties.  In May 2003, at her request, she ceased operational duties.  Whether or not the plaintiff’s injuries preclude her from operational duties is therefore at the heart of the matter.

44. The issue before me has been overtaken by events in part.  Whilst at the time the plaintiff entered into occupation of operational quarters, it was the policy of the CAD to retain a number of quarters for operational duties, that position has now changed.  I am told, and it is accepted by all parties, that by the end of September 2007, all operational quarters held by the CAD will be returned to the Government Property Agency for reallocation.  This was an administrative decision and affects all officers in the CAD.  The CAD has decided that its officers do not need to be provided with operational quarters.  It is accepted by the plaintiff and the defendant that in the event that an order is made for damages for the loss of operational quarters, the calculation should be based on the sum of $21,300 per month less 7.5% of the plaintiff’s prevailing salary.  That figure has been arrived at on the basis of the cost of comparable accommodation in the private sector.  The plaintiff’s claim is 25.5 months’ loss on the basis that she would have vacated the operational quarters at the end of September 2007, i.e. the sum of $451,254.  The original claim of $4,050,000 assumed that the plaintiff would not resume operational duties for the rest of her working life.

45. On behalf of the defendant, it is submitted that there should be no allowance for this head of damages given that the joint report prepared by Dr Tsoi, states unambiguously, that the plaintiff could have resumed operational duties in December 2004.  It is said by the defendant with some force that there is now no incentive to return to operational duties other than for the purposes of promotion.  The plaintiff it is said receives the same salary and salary increments as do her peers who are required to perform operational duties without the inconvenience of staggered start times and occasional evening shifts.  In similar vein any benefit derived from the allocation of operational quarters will cease as of September 2007.

46. I am satisfied that Dr Tsoi was undoubtedly mindful of the fact that the duties described in paragraph 10 of the instructions to him were not those described to him and referred to in his 1^st report.  His conclusion that the plaintiff was fit to resume her pre-injury job as an ATFSO was clearly a reference to a return to full operational duties.  His specific reservation that she should avoid working more than eight hours per day evidences his appreciation of the instructions to him that one of the shifts required an officer to work 10¼ hours.

47. It is said on behalf of the plaintiff that in reaching the conclusion he did in his 2^nd report Dr Tsoi did not fully appreciate that a return to “her pre-injury job as an Air Traffic Flight Services Officer” would entail a return to operational duties.  I disagree.

48. Had there been any doubts about the full impact of Dr Tsoi’s recommendation then the plaintiff and those acting for her could and should have sought to place evidence before me to resolve same.  This has not been done.

49. Miss Susanna Lui of the CAD in her evidence confirmed that had the plaintiff returned to operational duties then she could have applied to have Dr Tsoi’s recommendations (including an exemption from the night shift) taken into account.  Given that the CAD had in the past acceded to requests by the plaintiff to accommodate the state of her health, I am in no doubt that such a request would have been favourably entertained.

50. I am satisfied that the loss of operational quarters could have been avoided.  In the period between 3 May 2005 when the plaintiff was directed to vacate her operational quarters and 13 August 2005 when she did vacate them she could have, on the basis of Dr Tsoi’s 2^nd report, requested that a further medical board be convened to assess her ability to resume operational duties.

51. Given the fact that consequent upon Dr Tsoi’s 1^st report being submitted to the CAD, a medical board was convened, it is apparent to me and must have been apparent to the plaintiff, that had she submitted Dr Tsoi’s 2^nd report to the CAD, it would have followed that a further medical board would have been convened.  Based on Dr Tsoi’s 2^nd report she could have been permitted indeed required to resume operational duties.  It is clear that she was not prepared to do this and chose to ignore Dr Tsoi’s opinion that she could resume her normal duties.

52. I am satisfied that the decision was the plaintiff’s to make.  She chose not to return to operational duties.  She says that this was because she could not resume that workload and that on those occasions that she had the level of pain and discomfort was such as to make this an impossible option.  I am regrettably drawn to the conclusion that this is in fact not the case.

53. It is not without significance that the plaintiff refused to disclose Dr Tsoi’s 2^nd report to her employers.  On 21 October 2005 the CAD wrote to the plaintiff requesting an update on the progress of her recovery.  She was invited to provide a medical report setting out when it would be that she was likely to return to operational duties.  On 25 October 2005 in response to that request, the plaintiff’s solicitors wrote to the CAD saying :

“Our client has asked us to reply to your memo dated 21 October 2005 (copy enclosed).  You have seen the report of Dr Danny Tsoi of 11 December 2004, this recommends working no more than eight hours a day and discourages shift works.”

Pausing here, it is immediately apparent that the author of that letter was in error.  The plaintiff had refused to allow her solicitors to disclose that report to the CAD and had done so immediately after the report had been prepared.  In evidence the plaintiff confirmed that she instructed her solicitors not to provide it to CAD.

54. In response to that letter, the CAD wrote on 13 December 2005 to the plaintiff’s solicitors stating that they did not have the report dated 11 December 2004 and it would be appreciated if a copy could be sent to them.  There was no reply to that letter.  On 21 March 2006 (by registered mail), the CAD again wrote to the plaintiff’s solicitors enclosing a copy of their letter of 13 December 2005.  Eventually on 31 March 2006 the plaintiff’s solicitors wrote to the CAD saying this :

“Our client asks us to inform you that she does not instruct us to release to you the latest orthopaedic report of Dr Danny Tsoi.”  

55. On 30 June 2006 in response to that letter, the CAD wrote to the plaintiff’s solicitors as follows :

“As we have mentioned that previously in our previous letter to you dated 13 December 2005, we need to be updated on Ms Tsoi’s current medical condition for staff planning purpose.  If Ms Tsoi would not release her updated medical report, we should be grateful if she would let us know her status of recovery and her latest limitation (if any) in performing her duties so that we could cater for her needs and assign suitable duties to her.” 

That letter was likewise sent by registered mail.

56. On 12 July 2006, the plaintiff’s solicitors wrote to the CAD as follows :

“Thank you for your letter dated 30 June 2006.  The latest report from Dr Tsoi draws the same conclusion as the first.  That she has reached maximum medical improvement. 

Our client’s reluctance to provide the copy to the CAD arises from certain aspects of the report which deal with the effect her injuries have had on her personal life and in particular with her physical relations with her spouse.”

It went on to say :

“Our client has no objection to Miss Susanna Lui reading the report herself at our offices given that she is the only female colleague in the management stream.  Provided Miss Lui thereafter keeps confidential those matters in the report which are of a confidential nature this should enable you to deal with future staff planning.”

What is immediately apparent is that the first paragraph of that letter is misleading.  The primary conclusion drawn by Dr Tsoi was not that she had reached maximum medical improvement.  His conclusion was that she was suitable to return to her former operational duties.  It is most regrettable that the author of that letter chose to respond in the way that he did.  As to the second and third paragraphs, it is nonsense to suggest that this could possibly be the reason for her reluctance to reveal the report to the CAD.  The 1^st report of Dr Tsoi in 2002 which was the basis upon which a medical board was convened by the CAD contained precisely the same description of her personal circumstances.  It had been submitted to the CAD on behalf of the plaintiff to support her claim to be exempted from operational duties.  To suggest that a female officer from CAD could attend the plaintiff’s solicitors’ office to read the report (but not be provided with a copy) is likewise nonsense.

57. It is obvious that the report could have been edited to delete references to matters which were sensitive.  The CAD wrote again on 20 July 2006 indicating :

“We only need to know the effect of Ms Tsoi’s injuries that concerns her work performance.  Thus, providing the version of doctor’s report that leaves out the point on her personal life would still be useful information for staff deployment purpose.” 

There was no response to that letter by the plaintiff’s solicitors.  On 21 February 2007 (by registered post) that letter was yet again sent to the plaintiff’s solicitors and yet again there was no response.

58. It is clear to me and I find as a fact, that the plaintiff did not want the contents of this report released to the CAD for the purposes of reassessing her future deployment.  The reason for not wanting to disclose the report is obvious.  The plaintiff did not wish to return to operational duties and for that reason instructed her solicitors to withhold this report from the CAD.

59. I am satisfied that the plaintiff’s claim for loss resulting from her ineligibility to occupy operational quarters is not established.  Had she acted upon the advice of Dr Tsoi in his 2^nd report she would no doubt have been able to resume operational duties and retain her quarters.

Future loss of earnings

60. This claim is based upon the proposition that but for the accident the plaintiff would have been promoted to the rank of Senior Air Traffic Flight Services Officer (“SATFSO”) sometime into the future.  The plaintiff estimates that this would have been at about the age of 46, that is, some 14 years before normal retirement age at 60.  It is the plaintiff’s claim that by reason of her injury, she cannot perform operational duties now and will not be able to perform operational duties in the future and that she cannot be promoted to the rank of SATFSO without being able to perform operational duties.  In the alternative, it is said that the plaintiff’s promotion prospects have been delayed by reason of the fact that she has been unable to perform operational duties and will not be able to in the foreseeable future.

61. I accept that the plaintiff’s prospects of promotion would be significantly inhibited were she not to return to operational duties.  True it is that there are officers at the rank of SATFSO who perform non-operational duties but I am satisfied that the reality is that to reach that stage an officer must have been in an operational post prior to being considered for promotion.

62. The rank of SATFSO is the highest rank that can be obtained by an officer in the plaintiff’s grade.  On the basis of the material before me, it is immediately apparent that promotion from ATFSO Grade I to SATFSO in the case of the plaintiff is :

(1)     by no means guaranteed, given the assessments of her performance;

(2)     in all probability, some years from now irrespective of her ability to perform operational duties; and

(4)     problematic given my conclusion that she has no intention of returning to operational duties.

63. As to points (1) and (2) in paragraph 62 above, there are currently 54 officers of the same rank as the plaintiff in the CAD.  Whilst seniority is only one criteria to be taken into account in the promotion exercise for these officers, I note that the plaintiff is currently 50^th in seniority amongst those 54 officers.  It is likewise noteworthy that the material before me shows that between 1994 and 2004, 12 ATFSO I officers were promoted to SATFSO and their ages ranged between 38 and 48 years at the time of their promotion.  There are, I am advised, currently 15 posts at the rank of SATFSO.

64. In addition, I am told that there has been a moratorium imposed on promotion from ATFSO I to SATFSO.  That has been in place since the year 2003 and will not be lifted until the year 2008.

65. It is correct to say that the plaintiff’s staff appraisal reports were, in the early years, encouraging.  She had made steady but unspectacular progress in her career.  She was at all appropriate times recommended to receive salary increments which are performance based.  She was after an initial period of probation placed on permanent and pensionable terms and was very soon after that acting in a senior rank.  However, those assessing her performance have, as time progressed, become less and less enthusiastic about her devotion to her duties.  There appears to have been some disharmony between her and the management at CAD in recent times.  The evidence demonstrates to me that she was clearly losing interest in the job and in recent times had been criticized for taking excessive periods of sick leave (which in the main part had nothing to do with her neck injury).

66. Putting it simply, she was showing in recent times little if any dedication to her job.  Unless there was a dramatic turn around in her work ethic, I do not see any real prospects of promotion for her for a long time to come.  I can see this and I am sure that the plaintiff can and does.

67. From the evidence before me it is clear that the plaintiff’s prospects of promotion to the rank of SAFTSO are far from guaranteed and even if a real prospect it is a distant one.

68. As to point (3) in paragraph 62 above, there is to my mind no significant detriment to her promotion prospects arising from the accident.  At the very highest I would say that her promotion prospects may have been delayed, but even that delay is minimal and non-compensable.  All of the above however assumes that the plaintiff is willing to return to operational duties.  As I have said I find that she has no such intention.  She has chosen not to in the full knowledge that she could.  This claim fails.

Post trial loss of earnings

69. The plaintiff’s claims for post trial loss of earnings and pension benefits is entirely dependent upon assertion that she will be unable to resume operational duties and as a consequence will not be promoted.  This claim suffers the same defect as does her claim for loss of operational quarters.  The hypothetical claims for post trial loss of earnings and pension benefits is predicated upon the assumption that she would be promoted to SATFSO.  I am satisfied that by the time of Dr Tsoi’s 2^nd report she was able to return to operational duties.  She had to do no more than submit that report to the CAD and request that a medical board be convened to permit her to return to operational duties.  I have no doubt that this would have been the result.  CAD was as the correspondence reveals anxious to review her position.  The plaintiff chose not to resume operational duties and does so to this day.  As with the issue of operational quarters this was her decision to make.

70. I do not consider that the plaintiff’s claim for post trial loss of earnings and loss of pension benefits is established.

DAMAGES

PSLA

71. I have considered the authorities helpfully placed before me by both counsel.  In addition to the chest wall and back pain the plaintiff suffered a whiplash injury which was described by Dr Tsoi in his 1^st report as rather severe given that 12 months after the event the plaintiff was still complaining of annoying pain and discomfort.  From the outset Dr Tsoi predicted, and it would appear accurately, that there would be ongoing discomfort which may take several years to ultimately be resolved.  However, he was clearly of the view that given the fact that there was no neurological and structural damage that her prognosis was in the long term good.  No complications are anticipated.  I accept as has been indicated by Dr Tsoi and emphasised by both counsel that there will be ongoing discomfort but that this will be resolved in the fullness of time.

72. It accepted that the plaintiff’s injuries do not fall within the serious category as described in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

73. I am of the opinion that an amount of $180,000 is appropriate and will properly account for the fact that the plaintiff will have some ongoing discomfort from time to time.

Special damages (medical)

74. These are agreed at $41,344.

Future medical expenses

75. This is agreed at $30,000.

Pre-trial loss of earnings

76. This is agreed at $32,178.05.

Special damages (loss of jewellery, clothing and mobile phone)

77. The plaintiff claims under this head the following :

(i)	Loss of Nokia mobile phone	$2,000
(ii)	Loss of clothing	$3,000
(iii)	Loss of diamond earring	$7,000
(iv)	Loss of platinum necklace with diamond pendant	$30,000
	Total :	$42,000

78. All of the above items the plaintiff says were lost save for the clothing which was damaged.  No receipts for any of the items have been provided and I am dependent entirely on the evidence of the plaintiff.  In this regard I note that I have not found that the plaintiff to be a witness of truth in these proceedings.  The plaintiff’s claims that she is unable to resume operational duties because of her neck injury, I have rejected as do I reject the evidence that she instructed her solicitors to withhold Dr Tsoi’s 2^nd report from her employers because there were therein references to her physical relationship with her husband.

79. I am prepared albeit with some reservations to accept that she may have lost her mobile phone and may have damaged some clothing.  Both of these items were at the date of the accident several years old.  I would allow a total sum of $3,000.

80. Insofar as the jewellery is concerned, I am not without material beyond the evidence of the plaintiff prepared to accept that these items were lost.  There has been no suggestion that the alleged loss of these valuable items was taken up with either the hospital or the police.  No attempt has been made to adduce evidence that the loss of such valuable piece of jewellery was ever reported.  No attempt has been made to adduce evidence of their purchase price.  The claims are rejected.

Post trial loss of earnings

81. No award.

Loss of pension

82. No award.

Loss of operational quarters

83. No award.

SUMMARY

84. The summary of awards is as follows :

PSLA	$180,000.00
Pre-trial loss of earnings	$32,178.05
Special damages (medical)	$41,344.00
Future medical expenses	$30,000.00
Special damages (clothing and mobile phone)	$3,000.00
Total :	$286,522.05

85. Counsel have in submissions confirmed that the calculation of appropriate interest will be concluded by their respective instructing solicitors.

86. There will be an order nisi that the defendant pay the plaintiff’s costs on the District Court scale, to be taxed if not agreed.

87. Liberty to apply generally.