CHU FUNG PING v. WONG WAI LEUNG

HCPI 420/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 420 OF 2014

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JUDGMENT

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1.  This is a personal injuries claim by the plaintiff for injuries sustained in a motor vehicle accident.

LIABILITY

2.  The plaintiff’s evidence was that, at about 8:00 pm on 29 October 2011, she was the front seat passenger of a Nissan Sunny travelling along the second lane from the left of Tolo Highway (“the second lane”).  Her husband, Mr Chan, was driving.  They were travelling toward Sheung Shui at about 90 – 100 kph.

3.  The plaintiff stated that, as the Sunny approached the accident location, she saw a Ford motor vehicle in the Sunny’s left rearview mirror approaching from behind in the second lane at high speed with its headlights flashing.  There was a bus immediately to the Sunny’s left in the first lane from the left of Tolo Highway (“the first lane”), which prevented Mr Chan from moving over to give way to the Ford.  After the Sunny had passed the bus, the Ford moved into the first lane, accelerated and overtook the Sunny.  At this point, the plaintiff noticed that Mr Chan slowed the Sunny “a bit”.  After the Ford had overtaken the Sunny, it moved back into the second lane and braked abruptly in front of the Sunny.  Mr Chan immediately braked.  The Ford suddenly braked again and Mr Chan braked again but the Sunny went “slightly” out of control and crossed into the first lane.  Mr Chan immediately steered right to straighten the Sunny.  (Mr Chan’s evidence was that, because of the braking, the Sunny had slowed to approximately 50 kph.)  About two seconds later, the defendant’s vehicle, which had been travelling in the first lane, collided with the Sunny’s left rear.  The plaintiff’s case was that the defendant failed to stop his vehicle in time.

4.  Mr Chan’s evidence was, in almost all respects, the same as the plaintiff’s.

5.  The defendant’s evidence was that, at about 8:17 pm, he was driving a Honda Civic in the second lane and then moved into the first lane to give way to the Ford.  He then moved back into the second lane and overtook the bus.  After overtaking the bus, he moved back into the first lane.  The defendant’s evidence is not entirely clear but it appears that, after he had moved back into the first lane he was driving the Civic at about 70 kph and 20 metres behind the Sunny, which was in the second lane.  He then saw the Ford come up behind the Sunny at high speed in the second lane and the driver of the Ford flash its headlights.  The defendant saw the Sunny’s brake lights light up once whereupon the Ford’s brake lights also lit up once.  The Ford then moved to its left and into the first lane in front of him, overtook the Sunny and moved back into the second lane.  He saw the Ford’s brake lights light up and the Sunny’s brake lights light up.  The defendant stated that, by this time, he had gradually reduced his speed to about 40 kph and the distance between his vehicle and the Sunny had been reduced to about one car length.  He then saw the front of the Sunny cross over the dividing line into the first lane in front of him without any indication.  The Ford then moved to straddle the two lanes and braked again.  Then the Sunny suddenly braked.  The defendant applied his brakes but, since the Sunny had changed lanes suddenly and was too close, he was not able to stop in time and the right front of his vehicle collided with the rear wheel of the Sunny.

6.  The defendant agreed in cross-examination that he had slowed down from about 70 kph to about 40 kph because he thought it is possible that the Sunny might move to avoid the vehicle in front.

7.  The defendant’s case was that the Sunny suddenly and without warning moved in front of his vehicle and braked, not allowing the defendant sufficient time to avoid an accident.

8.  It was clear that the driver of the Ford was driving aggressively.  By his own admission, the defendant appreciated before the accident that there was some risk of the Sunny moving to avoid the Ford in front, which was moving and braking erratically.  In those circumstances, the defendant had to take care.  However, the distance between the Sunny and the Civic had reduced from about 20 metres, when the Ford first approached the rear of the Sunny at high speed, with its headlights flashing, to about one car length immediately before impact.  It is clear that, whilst the driver of the Ford was aggressively overtaking the Sunny and then braking twice in front of the Sunny, the distance between the Sunny and the Civic was reducing.

9.  In my view, the defendant did not allow sufficient distance between his vehicle and the two vehicles in front of him in order to avoid the accident.  The defendant’s case is that, the Sunny moved suddenly and without warning and collided with his vehicle but having seen the Ford’s erratic manoeuvres, he should not have allowed the distance between the Sunny and his vehicle to decrease from 20 metres, when he first saw the Ford’s lights flashing, to only one car length immediately before the accident. Although the defendant said that he slowed down as he thought the Sunny might move to avoid the vehicle in front, in my view, he did not take evasive action early enough.  In particular, he saw the Ford’s lights flashing when he was 20 metres behind the Sunny but allowed the distance to decrease to one car length. Hence, I find the defendant was negligent and liable for the accident.  It is not necessary for me to determine whether the time between the Sunny braking and impact was two seconds or immediate because, either way, I consider the defendant was too close to the two vehicles in front.

10.  I do not consider Mr Chan should bear any liability because he was acting in the “agony of the moment”.  I find that the driver of the Ford cut in front of the Sunny and braked suddenly, creating a dangerous situation, without giving Mr Chan a reasonable time or opportunity to avoid heavy braking.  It was reasonable, indeed instinctive, for Mr Chan to brake.  I find the Sunny swerving to be a consequence of braking in a difficult and dangerous situation and it should be remembered that Mr Chan quickly regained control of his car.  In this regard, I have noted Brandon v Osborne Garrett & Co [1924] 1 KB 548, which is authority for the proposition that when a party is put in a position of danger by the negligent act of another party, then his reaction is not to be judged by the ordinary standard; one ought not to be too critical of what was done instinctively on the spur of the moment in a situation of danger.  Also, the actions of someone placed in a situation of danger, as was Mr Chan, are not to be judged with the benefit of hindsight:  Wong Man Kit Michael (a minor) v Wong Fong Woon (unreported), HCA 283/1985, Deputy Judge Saied, 21 December 1988.

11.  The defendant pleaded that the accident was caused wholly or contributed to by the negligence of the driver of the Ford.  However, I do not consider that I should find negligence on the part of a person who is not a party or reduce the plaintiff’s damages by finding negligence against a non-party.

12.  The plaintiff’s counsel submitted that the defendant should be fully liable or, alternatively, equally liable with the driver of the Ford, referring me to Thompson v Spedding [1973] RTR 312 in support of the alternative submission.

13.  Thompson v Spedding can be distinguished.  In that case, the defendant was the driver of a car travelling in a line of vehicles on a busy road when he braked suddenly in order to turn right.  The car behind him also braked suddenly and avoided colliding with the defendant’s car but the plaintiff, riding a motor scooter behind the second car was not able to avoid running into it and was injured.  In her action against the defendant, the trial judge found that the defendant had been negligent and that the plaintiff had not been to blame.  On appeal by the defendant, contending that the judge should have found that the plaintiff had been guilty of contributory negligence, the Court of Appeal held that it was the duty of persons driving in a line of traffic to keep such a distance behind the car in front as to be prepared for reasonable emergencies. The Court of Appeal found that the plaintiff contributed to the accident and reduced her damages by half.

14.  The difference between Thompson v Spedding and the present case is that the drivers who were found to have contributed to the accident were both parties to the action.  The case does not assist me.

QUANTUM

Expert opinions

15.  The plaintiff was born on 19 August 1961 and was 50 years of age at the time of the accident.

16.  According to a medical report from the orthopaedic clinic of North District Hospital, the plaintiff had neck pain for five years before the accident.

17.  Prior to the accident, the plaintiff was a bus driver.  On 10 September 2011, she was involved in a work accident.  A wheel of a bus she was driving hit a pothole, wrenching the steering wheel.  She experienced neck pain and was granted sick leave until 5 October 2011.

18.  As a result of the subject accident, the plaintiff suffered an orthopaedic injury, namely, neck sprain and chronic neck pain and psychiatric disorder, namely, adjustment disorder with anxiety and depressed mood.  She was granted sick leave from 30 October 2011 to 31 October 2015.

19.  As a result of the accident and associated sick leave, her employer, the Kowloon Motor Bus Co (1933) Ltd (“KMB”), based on the opinion of the company doctor, considered that the plaintiff was no longer capable of driving a bus and arranged early retirement from 1 March 2013.

20.  The plaintiff was not able to work up to mid-2014.  In mid-2014, she found employment as a nanny but her neck pain became worse and she left the job after two days.  On 14 August 2014, the plaintiff started work as a part-time manufacturing worker.  Her duties included heavy manual delivery, which she was unable to perform due to neck pain.  She left the job after about a week.

21.  On 3 September 2014, the plaintiff started as a factory worker.  Her duty was to inspect and clean distilled water bottles. However, her neck pain deteriorated and she left the job after 12 days.  In mid-November 2014, the plaintiff found a job as a temporary food manufacture worker.  Her employment ended on 25 December 2014 as the factory no longer needed extra workers after Christmas.  In mid-January 2015, she was employed again as a temporary food manufacture worker at the same factory.  That employment ended on 23 February 2015 as the factory no longer needed extra workers after Chinese New Year.  The same employer offered the plaintiff part-time work beginning on 17 March 2015.  This work involved manual labour, which she found she was unable to perform due to neck pain.  She left the job on 21 May 2015.  The plaintiff has been unemployed since.

22.  Two orthopaedic surgeons, Dr Wong Kwok Shing, Patrick (appointed by the plaintiff) and Dr Tsoi Chi Wah, Danny (appointed by the defendant), jointly examined the plaintiff and agreed that the plaintiff sustained soft tissue neck sprain injury and mild head injury (contusion with scalp swelling to the left temporal region) in the accident.  They also considered that she may have sustained soft tissue injury to the low back and right hip but this was likely to be mild and resolved spontaneously.  Both experts agreed that a long history of neck pain, prior to the accident, and a pre-existing degeneration probably also contributed to her subsequent neck symptoms and upper limb numbness.

23.  The experts agreed that the current clinical and radiological findings at the time of the joint examination were compatible with the plaintiff having improved and having attained a stable condition from her chronic neck pain upon a background of cervical spine degeneration aggravated by repeated episodes of neck injury.  The experts concluded that she does not have any significant neurological deficit.

24.  Both experts agreed that the plaintiff had attained maximal medical improvement but may require further symptomatic treatment such as analgesics on needs basis for her orthopaedic condition and injuries sustained in the accident.  Dr Tsoi pointed out that subsequent treatment would be mainly for her symptomatic pre-existing degenerative C5-6 disc.

25.  Counsel put to the plaintiff in cross-examination that she had concealed from doctors that she had a pre-existing condition and was exaggerating her condition.  I accept that she concealed her pre-existing condition but eventually this was brought to the attention of the experts who dealt with it in a supplementary report.  I also accept that she has exaggerated her condition but, reading the expert reports as a whole, I consider that the experts’ respective opinions have not been influenced by exaggeration and are based on their own objective observations.

26.  The experts agreed that her present condition can be attributed to three factors:

  (1)   her pre-existing neck pain;

  (2)   the accident which occurred on 10 September 2011; and

  (3)   the subject accident

but they disagree as to the relative contribution of each factor.

27.  Dr Wong’s view was that the prognosis for the plaintiff’s neck condition was fair.  He considered that the plaintiff will have some residual neck pain, which may increase occasionally with aggravation.  Her upper limb function should be reasonably normal, without significant neurological deficit.  Her neck movement is likely to remain moderately restricted for a long period of time.

28.  Dr Wong further considered that, since the plaintiff was able to carry out bus driving duties despite chronic neck pain which was apparent before the two accidents and that she was able to return to normal duties after the accident on 10 September 2011 (after three weeks of sick leave), contribution to her present symptoms by her pre-existing concerns was probably less than the injury sustained during the subject accident.

29.  Dr Wong assessed the plaintiff to have suffered 8% whole person impairment for residual neck pain and stiffness, of which he considered most should be attributed to the accident: 5%.  Dr Wong based the 5% on his assessment of the plaintiff’s chronic neck pain as mild, her injuries sustained in the accident on 10 September 2011 as mild and the neck injury sustained in the subject accident as moderate/severe.  Dr Wong’s grading of moderate/severe was influenced in part by his belief that the plaintiff’s vehicle was a total loss, indicating a high-energy trauma.  Dr Wong’s grading was also based upon his observation that the plaintiff had a marked increase in neck pain immediately after the accident and required continuous medication and prolonged physiotherapy, with slow progress and she was unable to resume bus driving, although Dr Wong thought this might not be wholly caused by her orthopaedic injury.  However, the plaintiff’s vehicle was not a total loss and, so, Dr Wong’s opinion should be treated with caution.

30.  Dr Wong estimated the plaintiff to have 10% loss of earning capacity, of which 6 – 7% was attributable to the accident. 

31.  Dr Wong’s view was that, as the plaintiff’s neck condition appeared to have attained maximal medical improvement in March 2014, sick leave up to March 2014 was reasonable. 

32.  Dr Tsoi was of the view that the plaintiff would have been affected by the pre-existing degeneration in any event, even if the two traffic accidents had not occurred, but he considered that the two accidents probably exacerbated her neck pain.  He considered the pre-existing condition to be the main factor for the plaintiff’s persistent neck pain.

33.  Dr Tsoi considered that additional adverse effects arising from the soft tissue injury would be minimal and that the plaintiff’s overall prognosis was excellent.

34.  Dr Tsoi agreed with Dr Wong that the plaintiff’s current whole person impairment was 8% but apportioned 5% to the pre-existing condition, 1% to the accident on 10 September 2011 and 2% to the subject accident.  Dr Tsoi evaluated the loss of earning capacity caused by the accident at 1%. 

35.  Dr Tsoi thought that sick leave of six months should be the maximum for an uncomplicated soft tissue sprain injury of the neck.

36.  Both experts agreed that the plaintiff is able to manage the activities of daily life.

37.  Both experts agreed that the plaintiff is not capable of returning to work as a bus driver but she should be capable of light to moderate work, such as a cleaning worker, petrol station attendant or security guard.  Dr Wong considered that the plaintiff’s inability to resume driving might not be caused totally by her orthopaedic injury.  Dr Tsoi reiterated that the plaintiff’s inability to return to work is mainly, if not wholly, due to her pre-existing degenerative cervical spine and psychiatric illness.  If the plaintiff had suffered from the soft tissue sprain only, she would have been able to resume work as a bus driver.

38.  Turning to the plaintiff’s pre-existing condition, I have regard to the three categories set out in Chan Kam Hoi v Dragages et Travaux Publics (unreported), HCPI 815/1995, 7 March 1997. The first is where the plaintiff was almost certain to have gone through life unaffected by the condition.  The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state.  The third is where natural progression would certainly have brought about the plaintiff’s present state at some stage in any event.  In the first, the plaintiff would be liable for all damage caused.  In the second, it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate.  In the third, the extent of any allowance depends on the evidence as to when the natural progression would have brought about the plaintiff’s present state.

39.  The experts considered the three categories in a supplemental joint report.

40.  Dr Wong considered that the plaintiff did not fall into either category one or category three because her pre-existing condition was mild, her injury sustained in the accident on 10 September 2011 was mild and her injury sustained in the subject accident was moderate/severe.

41.  Dr Wong considered that the plaintiff fell into the second category, although he did not think there was a strong possibility that some other event or natural progression of the pre-existing condition would have brought about the plaintiff’s present state.  His view was that there was a small possibility that the plaintiff would be involved in an accident of similar severity as the subject accident or that her neck pain would have deteriorated by natural progression.

42.  As for his opinion that there was only a small possibility of natural progression of cervical spine degeneration, Dr Wong based his view on the plaintiff’s history of five years of neck pain, which required only little treatment and the fact that she was driving buses despite neck pain.  He considered any progression of the pre-existing condition would be relatively slow and mild.  Dr Wong advised that degeneration can stabilize such that the neck and back will become stiffer but less painful.

43.  Dr Wong considered that, because the plaintiff’s neck pain was so markedly increased by the accident such that she was unable to resume her bus driving, the accident was the “turning point”.  He considered the role played by the accident could not be overstated.

44.  Dr Tsoi considered that the plaintiff fell into the third category, concluding that the plaintiff would have been affected by neck degeneration at any time in any event.  He based his view on the fact that a consultation summary prepared by Dr Wong Wah Bong, Associate Consultant at North District Hospital, records that the plaintiff was referred to the hospital’s orthopaedics clinic by the Fanling Family Medical Clinic for management of neck pain, the referral date being 19 May 2011.  Dr Tsoi concluded that this suggested that the plaintiff had neck pain that needed specialist treatment before the accident.  His view was that the accidents only acted as “triggering factors”, which aggravated the plaintiff’s symptoms arising from her pre-existing degenerative cervical spine.

45.  A psychiatrist appointed jointly, Dr Law Wun Tong, examined the plaintiff.  Dr Law diagnosed adjustment disorder with mixed anxiety and depressed mood, which symptoms are reactive in origin to the physical pain and are consistent with the injury sustained in the accident. The adjustment disorder was caused mainly by the subject accident.  The doctor found the severity of the residual mood symptoms to be mild. 

46.  Dr Law thought that the prognosis of the adjustment disorder depends upon the resolution of the stressors.  The physical problems were the major stressors and the plaintiff’s mood will improve further when some of the psychosocial stressors are resolved.  If the plaintiff can find a suitable job, her mood will improve.  Her mood will also improve once litigation has finished, thus removing a major psychosocial stressor.  Dr Law considered the overall prognosis to be favourable.  Dr Law considered three months’ sick leave to be reasonable. 

47.  Dr Law considered the result of treatment to be satisfactory and the plaintiff had reached maximal medical improvement.

48.  Dr Law advised that mentally the plaintiff is fit to perform all activities of daily living and housework.  She does not need to avoid any activities from a psychiatric point of view.  The doctor adjudged the severity of the adjustment disorder to be mild and, from a psychiatric perspective, she is capable of resuming her former job as a bus driver.  Dr Law estimated the percentage of permanent impairment of the whole person due to the adjustment disorder at 3% and loss of earning capacity at 3%.

Pain and suffering, loss of amenity

49.  The plaintiff claims $400,000 for pain and suffering, loss of amenity, which her counsel reduced by 20% to take into account her pre-existing condition, which is a result of degenerative changes to her cervical spine ($320,000).

50.  The defendant’s counsel submitted that the appropriate figure should be no more than $150,000.

51.  I find that, as a result of the accident, the plaintiff suffered soft tissue neck sprain, chronic neck pain, mild contusion to her scalp and mild soft tissue injury to her low back and right hip.  The mild contusion and low back and right hip injuries resolved some time ago.  She has attained a stable condition with maximal medical improvement.  She may require analgesics as and when needed. 

52.  The accident also caused the plaintiff to suffer mild adjustment disorder with anxiety and depressed mood.  This should improve once this litigation is resolved.

53.  Both experts considered that the accident aggravated her pre-existing condition but I consider Dr Wong’s attribution of 5% whole person impairment was influenced by his mistaken view that the plaintiff’s vehicle was a total loss.  Accordingly, I prefer Dr Tsoi’s assessment of 2%.

54.  Having considered the medical reports and the numerous authorities cited by both counsel, I consider the plaintiff’s injuries to be similar to those described by Master K. Lo in Luk Shu Keung v Kwok Chi Shing (unreported), HCPI 848/2005, 28 February 2011, ie, mild orthopaedic injuries and mild adjustment disorder.   In that case, the Master assessed pain and suffering and loss of amenity at $300,000, which I consider to be an appropriate award in this case.

55.  I agree with Dr Wong that the possibility of another accident is small but I disagree with his opinion that the possibility of the plaintiff’s neck pain naturally deteriorating is small.  I do not consider that the progress of her condition would be slow and mild.  I prefer Dr Tsoi’s view that the pre-existing condition falls into category three.  That the plaintiff was referred to an orthopaedic clinic in May 2011 indicates that her condition had deteriorated before the accident to the extent she required specialist treatment.

56.  I find that the plaintiff’s condition would have deteriorated to her present condition in any event but there is no evidence as to when this would have occurred.  I find that the accident aggravated and accelerated the deterioration.

57.  In Chan Kam Hoi v Dragages et Travaux Publics [1998] 4 HKC 523 at page 529, Mortimer VP held:

“ Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages.”

58.  I consider a 20% reduction to be too low.  I consider a 40% reduction for the pre-existing condition to be appropriate.  My assessment of 40% takes into account that the accident aggravated and accelerated the degeneration.  Hence, I award $180,000 for pain, suffering and loss of amenity.

Pre-trial loss of earnings and MPF

59.  I find the plaintiff earned about $15,400 per month plus MPF as a bus driver.

60.  During the period of her sick leave and before her employment was terminated, the plaintiff received a partial salary from KMB of $129,439.70.

61.  Although the plaintiff was granted sick leave from 30 October 2011 to 31 October 2015, the plaintiff’s counsel submitted that Dr Wong’s opinion as to the appropriate sick leave, ie, up to March 2014 or about 29 months, should be preferred because both Dr Wong and Dr Tsoi noted that after a second course of physiotherapy, completed on 13 March 2014, the neck pain had subsided, trapezius spasm had decreased, neck movement had significantly improved and power of the upper limbs had become essentially normal.

62.  As such, the plaintiff claims $333,018.30 (($15,400 × 29 months − $129,439.70) × 1.05).

63.  The defendant’s counsel submitted that Dr Wong’s opinion is based on his understanding that the plaintiff’s vehicle was a total loss and, so, is flawed.

64.  I do not consider Dr Wong’s opinion in this regard is based on his understanding that the vehicle was a total loss.  Dr Wong has determined an appropriate period of sick leave by reference to the time at which the plaintiff attained maximal medical improvement.  On the other hand, Dr Tsoi has determined an appropriate period of sick leave by reference to his opinion as to what is appropriate for the type of injury. 

65.  I respect Dr Tsoi’s opinion but I prefer Dr Wong’s opinion as it refers to an identified, relevant event.  Given that both experts agree that the plaintiff is not able to return to bus driving because of her neck condition, in my view to determine the period of sick leave by reference to the date on which the plaintiff attained maximal medical improvement is a logical and reasonable approach.  Accordingly, I base my calculation of quantum on 29 months’ sick leave and I award the plaintiff $333,018.30.

66.  The plaintiff claims three more months of full loss, ie, up to the beginning of July 2014, because (a) that was the time when she in fact returned to gainful employment; and (b) it would be reasonable to allow her a three-month period in which to find alternative employment, given the limited choice due to her age and education level.  I consider this to be reasonable and I award $48,510 ($15,400 × 3 months × 1.05).

67.  The plaintiff also claims loss of earnings from the beginning of July 2014 to trial (28.5 months) during which period she had some employment, as recorded above, earning a total of $26,674.90.  The plaintiff claims $434,170.10 (($15,400 × 28.5 months × 1.05) − $26,674.90).  In considering this claim, I have regard to the following.

68.  Dr Wong and Dr Tsoi agreed that the plaintiff could not return to work as a bus driver.  Dr Wong thought that this might not be totally caused by her orthopaedic injury.  Dr Tsoi’s view was that the plaintiff’s inability to return to work as a bus driver was mainly, if not wholly, attributed to her pre-existing condition; if she had suffered from a soft tissue sprain only, she could have returned to work.  Nevertheless, both experts agreed that her pre-existing condition was aggravated by the accident.

69.  The defendant’s counsel submitted that Dr Wong’s position, that the accident was mainly responsible for her condition because she had been working before the accident despite chronic pain, was weak because the chronic pain was probably getting worse over the five years before the accident as was indicated by the reference to an orthopaedic specialist in May 2011.

70.  There is no dispute that the plaintiff was driving buses before the accident.  Given that both experts agree that she is not able to return to work as a bus driver because of her neck condition and given that both experts agree that the accident aggravated her condition, I approach this aspect of the claim from the position that the defendant had to take the plaintiff as she was at the time of the accident.  Notwithstanding her pre-existing condition, she was working as a bus driver.  The accident was the cause of her inability to continue working as a bus driver; described by Dr Wong as the “turning point” and by Dr Tsoi as a “triggering factor”.  I find that the plaintiff is entitled to her claim for loss of earnings from the beginning of July 2014 to trial and I award $434,170.10.

71.  I do not reduce the pre-trial loss of earnings for the pre-existing condition because there is no evidence of a sufficiently high risk that the plaintiff’s condition would have deteriorated to her present condition in any event during the pre-trial period.

72.  The total of the award for pre-trial loss of earnings is: $815,698.40.

Future loss of earnings

73.  At the date of trial, the plaintiff was 55 years old with a retirement age of 60.  The suitable multiplier is 5.06.  See: Chan Pak Ting v Chan Chi Kuen & anor (No 2) [2013] 2 HKC 365 and Personal Injury Tables Hong Kong 2016, Table 28.  The defendant did not dispute the application of this multiplier.

74.  I do not reduce the multiplier due to the lack of medical evidence as to when degeneration would reach the point in any event that the plaintiff would be prevented from working as a bus driver, in particular, there is no evidence that degeneration would reach such a point before retirement age.

75.  The plaintiff pleaded that she could earn about $8,500 per month in another job.  In effect, this was based upon the highest paid work she had during the pre-trial period.  I consider this to be a reasonable and appropriate measure.

76.  Accordingly, I award the plaintiff $439,916.40 (($15,400 − $8,500) × 12 × 5.06 × 1.05).

Loss of earning capacity

77.  The plaintiff’s counsel submitted that it is evident from the plaintiff’s frequent changes of jobs before trial that there is a real risk of her losing a job and, once she is on the open labour market, she clearly will face a disadvantage, given her condition.  As such, the plaintiff claims a lump sum to provide for such a risk: $100,000.

78.  I note $100,000 represents almost 12 months’ wages at $8,500 per month.  Given that she has only five years before retirement age, I consider this is somewhat excessive.  Both Dr Wong and Dr Tsoi considered the plaintiff should be capable of performing work with light to moderate manual work, such as cleaning, petrol station attendant or security guard.  The plaintiff did not remain long in employment for three reasons:

(1)   the work was too heavy;

(2)   the work involved prolonged bending of her neck; or

(3)   her services were no longer required due to the seasonal nature of the work.

Save that the plaintiff stated that she was looking for work, there were no details of any attempt to obtain work of the nature suggested by the experts and so I am not prepared to accept that there is a real risk of her losing a job to the extent argued for by her counsel. 

79.  I allow $50,000 for the risk of losing a job, representing a risk of unemployment of about six months over five years.

Special damages

80.  The plaintiff claims $7,000 for medical expenses, $6,000 for travelling and $6,000 for tonic food, analgesics and ointment.

81.  I take into account that the plaintiff had a pre-existing condition for which she was referred to an orthopaedic specialist in May 2011.  This indicates that expenses in the nature of those claimed would have been incurred in any event.  Hence, I reduce the claim by 40% to take into account such eventuality.  I award $11,400.

Conclusion

82.  I award the plaintiff the following:

PSLA	$180,000.00
Pre-trial loss of earnings and MPF	$815,698.40
Future loss of earnings	$439,916.40
Loss of earning capacity	$50,000.00
Special damages	$11,400.00
Total	$1,497,014.80

Interest

83.  I award interest on PSLA from the date of the Writ to the date of trial (30.5 months) at 2% per annum and interest on pre-trial losses from the date of the accident to the date of trial (60.75 months) at 4% per annum.

Costs

84.  The plaintiff has been substantially successful.  Costs should follow the event.  I make an order nisi that the defendant is to pay the plaintiff’s costs, to be taxed if not agreed, and the costs are to be taxed in accordance with Legal Aid Regulation.