CHENG CHO FAI v. LAW KA CHUNG

HCPI 1005/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1005 OF 2006

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J U D G M E N T

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1. “Major Depressive Disorder” and “Post-Concussional Syndrome ‘PCS’” are medical terms going through our courts more frequently these days.  However there is no actual judicial decision so far in respect how PCS would have affected a plaintiff’s loss of pre-trial earnings and his earning capacity.  (There are however some decisions in respect of pain and suffering.)  In this case I would have to sail through this unchartered sea, though there are some unsatisfactory circumstances here.  Before I make myself clearer, I will first deal with the basic facts of this case.

The accident

2. On 17 January 2004, Cheng Cho Fai (aged 25) was driving a motorbike on the fast lane along Tai Pak Tin Street towards Shek Yam East Estate.  He was hit by the Defendant’s motor vehicle coming out from a minor road Tung Chi Street and turning right into Tai Pak Tin Street.  The defendant had failed to fully check the oncoming traffic on his right side on Tai Pak Tin Street especially when his view of an oncoming car in the fast lane thereof was actually partly blocked by a motor vehicle on the slow lane; and this car intended to turn left into his Tung Chi Street.

Liability

3. The parties have reached agreement that the defendant is liable to the plaintiff but the plaintiff is 20% contributorily negligent.  Therefore I am not even concerned with how this 20% was reached between the parties.

Injuries

4. The plaintiff’s pre-accident job was a chainman[1] in Hyundai-CCECC Joint Venture.  This kind of surveyor’s job required very accurate eye-sight.  Unfortunately the injuries the plaintiff sustained, as helpfully listed out by Mr Patrick Lim, Counsel for the defendant, are as follows :

(1) comminuted fracture of the left distal radius with partial median nerve injury;

(2) bilateral maxillary fractures;

(3) left multiple orbital floor fractures;

(4) mobile horizontal teeth 21, 22 and 23;

(5)    sunken in left eye with double vision, enophthalmos, diplopia and ptosis of the left eye; and,

(6) post-concussional syndrome.

5. The plaintiff had undergone seven operations since the accident on 20 January 2004, 27 January 2004, 6 April 2004, 5 May 2004, 28 July 2004, 28 December 2004 and 13 April 2005.

Prognosis

6. In the joint orthopaedic report by one Dr Lau Hoi Kuen (“Dr Lau”), he found tenderness with reduced range of motion in the plaintiff’s left wrist.  He was of the opinion that the plaintiff’s left wrist injury had reached maximal medical improvement.  He considered that further degeneration was not expected.  His assessment was that the plaintiff’s impairment for his wrist injury was at 2% of the whole person and concluded that he would be able to continue his work as a survey assistant, with only mild reduction in efficiency.  That was only in respect of his orthopaedic injuring and not his injured eye condition.

7. In the joint neurological report by one Dr Yu Yuk Ling (“Dr Yu”), he noted that the plaintiff complained of constant headache, difficulty in concentration and deterioration of memory in his follow-up visits every three months.  Dr Yu opined that the plaintiff suffered from permanent post-concussion syndrome which entailed headaches, impaired concentration, subjective impairment of cognition and memory, irritability and insomnia.  His assessment was that the plaintiff’s impairment of the whole person was at 3% for his neurological injuries.

8. Dr Samuel Hui (“Dr Hui”), the plaintiff’s eye doctor, had performed laser barrier treatment for both his eyes in 2004 and repair of left orbital floor in the same year.  A repeat operation for left orbital reconstruction was performed in the subsequent year.  However, the plaintiff’s condition of enophthalmos, ptosis and diplopia did not significantly improve.  Dr Hui considered that the vertical diplopia notably interfered with his daily life and that such condition was likely to be permanent.  He assessed total loss of vision of the left eye, a 25% impairment of the visual system and 24% whole person impairment.

9. Even the defendant’s doctor, one Dr Paul Cheung (“Dr Cheung”) was of the opinion that the plaintiff’s diplopia was severe and assessed it as only 75% impairment of the left eye and overall 15% permanent impairment of the whole person.  He specifically referred to an updated Edition (5^th) of The Guides to the Evaluation of Permanent Impairment published by the American Medical Association in which his assessment was based upon.  He did not recommend further operation as no significant improvement is to be expected.  He considered that the plaintiff would be unable to return to his previous employment as a chainman or jobs requiring operation of dangerous machines.  He suggested other viable choices, such as delivery worker, car park attendant, cleaner, salesman, watchman, cashier or masseur. 

10. Based on the above, it is evident that both Dr Hui and Dr Cheung agreed that the plaintiff’s condition of diplopia was considerably severe and permanent.

PSLA

11. Miss Josephine Pinto, counsel for the plaintiff, submitted the figure of $800,000 but she did not elaborate her assessment in her written submissions.  She later explained in court that this figure should be broken down as follows : (i) $500,000 for the plaintiff’s eye injury, (ii) $200,000 for residual pain and stiffness in his left wrist based on Mehmood Khalid v. Million Harvest, (HCPI 1401/2006 unreported 20 June 2007, per Saunders J); and (iii) $200,000 for his post-concussional syndrome, based on Wu Kin Leung v. Incorporated Owners, (HCPI 1684/2002 unreported, per Sakhrani J 4 April 2005).

12. This would give a total of $900,000.  Taking a global approach, she discounted this figure by about 11% and came up with $800,000.

13. It should, however, be noted that the plaintiff’s wrist condition is apparently not as severe as in Lau Chi Man v. KCR (DCPI 501/2005 per Deputy Judge K. Lo, 17 May 2006) in which $220,000 was awarded to the plaintiff therein.  Further, although in Wu Kin Leung v. Incorporated Owners of Fu Tor Lay Sun Chuen Stage 1 (HCPI 684/2002 4 April 2005 per Sakhrani J,), $200,000 was awarded to that plaintiff who also had permanent PCS, as he was struck on his head, his head injury was found by the trial judge as minor head injury and his epilepsy (which in any event, is not found in the case before me) was mild in nature and has not recurred since 2000 (§59 thereof). 

14. Mr Lim for the defendant submitted that the amount should be in the region of $400,000 to $420,000 under this heading.  In particular he submitted that the injury of the left wrist should not be more than $100,000.  The reason was that one should not put too much emphasis on a weaker wrist at this stage.  He used the analogy of a regular gym-goer, though hurt in his muscle, would need time to re-build his strength after an accident.  The plaintiff was in fact a gym-goer before the accident.  I accept this analogy.  But the plaintiff was so depressed that he did not want to see anyone or to go out unnecessarily.

15. On the other hand, none of the cases submitted were cases of double vision.  In Chan Kin Ka v. Siu Tung Hung, (HCPI 570/1998 per Sakhrani J, 16 July 1999), the plaintiff suffered 56% permanent disability of the left eye and an overall 14% disability of visual system.  He was awarded $350,000.  The overall condition of that plaintiff was less severe than our present case. 

16. The case of Ho Yam Pai v. Tse Tak Ming, (HCPI 91/1996 per Master Chung (as he then was), 16 April 1997) is more similar to our present case in which the plaintiff’s right eye was assessed to be 100% permanently disabled (in short, blind) and his visual system was 24% permanent disabled.  He was awarded $450,000.  Counsel for the plaintiff also invited me to consider Hang Huu Duc v. Hambo Engingeering Ltd, (HCPI 172/2004 per Deputy Judge Muttrie, 14 November 2005) in which the plaintiff had lost his left eye 100% and was awarded $550,000.  This is a fairly recent case decided in 2005.

17. Based on the above cases, I am of the view that the figure should be more than that in Chan Kin Ka but less than Ho Yam Pai or Hang Huu Duc; taking however into account the inflation factor during the time lapse.  Hence, the amount I have come up with is $500,000 for the injury to the eye alone.

18. I have however conducted some research on my own and have found two relevant cases (not cited by either counsel) in which the victim suffered from double vision like our plaintiff.  They are :

(1) Kei Yiu Fuk v. Wong Ching Nam, (HCPI 355/2002, 16 December 2003, per Master Jeffries); and

(2) Harvey v. Welltex International Develpmental Ltd & Another, (HCPI 818/1998, 28 March 2001 per Deputy Judge Woolley).

19. In Kei, the plaintiff suffered from enopthalamus of the left eye, a sunken left eye, diplopia and nose area pain and numbness of left cheek.  The most serious lingering problem to him was diplopia, like the present plaintiff.  Master Jeffries awarded him $300,000.

20. In Harvey, the victim suffered from double vision among other serious injuries such as fracture to the pelvis, extensive damage to the bones of his face, etc.  Fortunately, the plaintiff recovered extremely well and only had residual pain in his face and hip.  He also suffered from Post-Traumatic Stress Disorder and Depression.  The doctor in that case was optimistic that he would be able to recover further.  It would appear that the injuries the victim suffered in that case was more severe than Cheng in our case.  What is strikingly similar, apart from the condition of diplopia, was the close to full prospects of recovery for his other injuries similar to the left wrist of the plaintiff before me.  (The degrees of pain of course are different.)  What is also significant in that case is the method the court adopted in calculating the total PSLA.  Deputy Judge Woolley came up with the sum of $450,000 after considering the totality of the plaintiff’s injuries and the extensive injuries he had to endure.

21. Further, the defendant herein submitted a surveillance video which showed the plaintiff crossing Cam Street during the “red man” signal after observing the traffic on his left hand.  This was evidence intended to indicate the minimal impact of diplopia on the plaintiff’s daily life, but of course not so, as far as his works are concerned.

22. Based on the aforementioned reasons, I have come up with the global figure of $700, 000 for all the injuries the plaintiff have suffered and the pain he will have to endure in future.

Pre-trial loss of earnings

23. The plaintiff was employed by Hyundai-CCECC Joint Venture as a chainman.  As such he would be required to use both eyes to ascertain measurements by handling certain instruments.  Those measurements would have to be very accurate.  He was paid by his employer until he was dismissed on 15 April 2004, with one month salary in lieu of notice.  His monthly income there and then was eventually agreed between the parties herein at $10,734 in the midst of the trial.

24. The plaintiff is clearly entitled to full loss of earnings during a period of reasonable sick leave.  Dr Cheung allowed sick leave up to August 2005 while Dr Hui is of the opinion that an appropriate period of sick leave would be up to May 2006.  I accept Dr Hui’s opinion of sick leave for 25.5 months.

25. After the recommended sick leave, the plaintiff is entitled to partial loss of earnings, i.e. his last salary less his income from June 2006 up to August 2008, the date of judgment.  In fact the plaintiff had no income at all up to the date of trial because he said he could not find one for several months after he had used all his efforts to do so.  Afterward he just gave up finding one because he was so depressed as a result of the accident.

26. Accordingly, counsel for the defendant submitted that the court should assess the plaintiff’s loss of earnings according to a notional salary the plaintiff could have earned.  He further invited the court to adopt the notional income figure of $7,300 as indicated by the Government statistics.

27. On the other hand, counsel for the plaintiff submitted that, in respect of notional salary per se, the aforesaid double vision problem would foreseeably lower the plaintiff’s expected earnings.  She submitted that a figure of $5,500 should be adopted instead.  She cited the Court of Appeal case : Li Wan Choi v. Choi Wan Hing [2000] 4 HKC 529 at pp.554-555, Rogers VP and Le Pichon JA said :

“… the residual disability would thus make it more difficult for the plaintiff to find a job and any job that he took could be expected to pay less than if the plaintiff were wholly fit... he cannot be expected to obtain the full salary which a wholly fit waiter could obtain because of his residual disability.  A substantial discount would be called for…” [Emphasis added]

28. With respect, I share the same view.  It is foreseeable and certainly reasonable for the plaintiff to accept any job offer even if the salary was lower than the market salary.  His disability should call for some discount.  I will therefore take the figure of $5,500, as suggested by counsel for the plaintiff, for those jobs he would have found.  It is evident from other cases that the pay of jobs for an injured man can only attract a salary of about $5,500.  A similar result could be found in Leung Po Chun v. Yat Lee Booth Construction Co. Ltd, CACV399/2007, per Tang VP, Yam and Stone JJ 6 June 2008 and at page 13 para. 51, Tang VP said :

“  However, there was evidence that between January 2005 and 17 August 2006 [i.e. the pre-trial period], a period of 19 months, the plaintiff had worked roughly for 15½ months with 4 different employees, as cleaning worker, store keeper, casual worker, or delivery working earning between $4000-$5000 a month.

   The learned judge did not deal with such evidence in his judgment.  [Instead the trial judge just took the notional income the plaintiff therein could have earned according to the Government statistics].  In our view there is no reason why such evidence should not have been accepted.  Having regard to the evidence of the work he was able to obtain and what he was actually earning, we do not believe that the learned judge was justified in placing total reliance on the Government statistics to the exclusion of evidence regarding what the plaintiff actually had been earning.”

The plaintiff’s unemployment before trial due to PCS

29. This would lead me to the actual but total unemployment of the plaintiff herein after the sick leave period but before trial.  In this respect, counsel for the defendant submitted that the plaintiff’s efforts of finding employment for three to four months after his sick leave period was unsatisfactory as there was no documentary proof of the job applications he made during that three to four months period.  The plaintiff said he had registered with the Labour Department and produced his registration card (at p.337) during cross-examination.  That was September or October 2006.  He had given his resume to the Labour Department and had a copy of that himself at home.  He was not asked to produce that resume later.  He applied for jobs by locating them on the net at <http://www.jobs.gov.hk>.  He also called up one Ms Yuen of the Labour Department at the telephone number stated on the card.  He had no hard copies for each and every application of him.  I believe him.  

30. The plaintiff further said that he was actually suffering from symptoms of Major Depressive Disorder and PCS.  A psychologist report from one Ms Valda Cho (“Ms Cho”) dated 4 May 2007 was submitted in support of his contention during his oral evidence. 

31. I must say I find it both surprising and disappointing that no up-to-date report was obtained.  In fact, when questioned in court, Miss Pinto appeared to pull that report out from her sleeve, so to speak, and later on explained that the plaintiff himself “did not think a final report would be of any great use”.  I find it most surprising and disappointing that such an able and experienced counsel as Miss Pinto could not persuade her client the necessity of an up-to-date clinical psychologist’s report.  Without such a full report, it is not possible for the court to ascertain whether the plaintiff should be entitled to the full loss of earnings up to the date of trial (and the amount of PSLA), because of his post traumatic depression condition.  This had been certified by Ms Cho, a clinical psychologist but it was only an interim report written in the midst of his depression after about six months of treatments with further sessions on mood regulation were recommended. 

32. According to the plaintiff, he stopped receiving treatment after March 2008.  But before, during, and after the treatment, he had been very moody with temper tendrum.  He lost his temper very easily and frequently.  These bouts of temper were all directed against his family members especially his parents, who, he admitted in his evidence in tears, love him so much.  It is not unusual that those who are dear and near to a victim of an accident would have to suffer together with the victim.  Cheng knew his father was in court all the time throughout the trial and Cheng’s elder brother was also here most of the time.  Cheng said he knew all his family members are very concerned and caring for him.  He just could not control himself.  Eventually he promised he would try to control himself when he is sad and depressed.  I however expressed my empathy for him.  He has lost one eye.  Before that he liked his work in a reputable company.  He must have thought that he would have a very bright future with many good things waiting for him.  However at his tender age, all these things have gone just because he was run down by a careless driver.  It must be very difficult for him to bear because he is, after all, very young.

33. However, on the limited evidence before me, I can only take a reasonable period of depression from June 2006 (i.e. post-sick leave date) to the end of July 2007 (i.e. only two months after Ms Cho’s opinion) as I have no other independent report to certify the plaintiff’s condition; apart from his own evidence which I accept as genuine.  Another way of looking at his issue of PCS is the plaintiff was “psychiatrically sick” and therefore could not gather himself together to find a job.  He should take that period as a kind of sick leave period. 

34. But I must say the most difficult assessment in this area is how much efforts a victim had asserted to come out of his depression and how much a defendant should be responsible for a plaintiff’s depression in PCS.[2]

35. In sum, the total pre-trial loss of earnings are :

(A) Sick leave: $10,734 x 25.5 months + 5% of MPF = $287,402.85.

(B)“Depressed” period, June 2006 to July 2007, i.e. 14 months : $10,734 x 14 + 5% = $157,789.80.

(C) Period with notional earning, August 2007 to August 2008, i.e. 13 months: $10,724 – $5,500 x 13 + 5% = $71,307.60.

Total (A + B + C) = $516,500.25.

Post-trial loss of earnings

36. The multiplier has been agreed upon as 16.

37. The award under this head is ($10,734 – 5,500) x 12 x 16 + 5% MPF = $1,055,174.40.

Loss of earning capacity

38. Counsel for the plaintiff estimated that the plaintiff will be out of work for approximately 15 months due to his disability.  The defendant submits that 9 months would be more reasonable.  It is here that I think a full clinical psychologist report on the depressive condition of the plaintiff would also help.  But then there is none here.  Thus I cannot take this condition into account at all. 

39. From the admitted evidence before me, I consider 12 months to be a reasonable period.  Hence, the loss of earning capacity is: $5,500 x 12 x 5% MPF = $69,300.

Future medical expenses:

40. Dr Hui recommended future eye surgery to correct the plaintiff’s diplopsia, which was estimated by him at $70,000.  The plaintiff wanted to have future surgery, though Dr Cheung advised against it.  Further, Dr Yu, the joint neurological expert, estimated $1,200 for further systematic treatment for headache and dizziness.

41. Both parties have agreed that on the safe side, the amount of $70,000 should be paid into court with liberty for any party to apply for payment out when circumstances warrant such an application.

Special damages

42. This has been agreed at $265,416.00.

Conclusion

43. For the aforesaid reasons, I make the following award :

(1)	PSLA	$700,000.00
(2)	Loss of pre-trial earnings
	A + B + C	$516,500.25
(3)	Loss of post-trial earnings :
	($10,734 – 5,500) x 12 x 16 + 5% MPF	$1,055,174.40
(4)	Future medical expenses	$71,200.00
(5)	Loss of earnings capacity
	$5,500 x 12 x 5% MPF	$69,300.00
(6)	Special damages agreed :	$265,416.00
	Total :	$2,677,590.65
	Less 20% contributory negligence	$2,142,072.52

44. There shall be judgment for the plaintiff in the sum of $2,142,072.52.  However part of the judgment sum of $56,000.00 (i.e. 80% of $70,000.00) shall be paid into court within 14 days hereof with liberty to the parties to apply for payment out.

45. There shall also be interests :

(i)  at 2% on general damages from writ to judgment;

(ii)  half judgment rates from accident to judgment on special damages and accrued loss of earnings.

Costs

46. The plaintiff shall also have the costs of the action to be taxed if not agreed.  The plaintiff’s own costs shall be taxed according to Legal Aid Regulations.

[1]   The word “chain” here means “a measuring line in land — surveying, consisting of one hundred jointed metal rods.”  (See Shorter Oxford Dictionary)  Thus the word chainman is used colloquially for land surveyor.

[2]  We must remember that even a blameless and upright man by the name of Job in the land of Uz, cursed his own birth date when he encountered calamities.  Even the ‘comfort’ of his three good friends together with a young man called Elihu did not help at all.