WAI YIN WA v. LAMINATE ENTERPRISES LTD.

HCPI-514OF 1997

THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.514 OF 1997

________________________

________________________

_________________________________

ASSESSMENT OF DAMAGES

_________________________________

Background

1. The Plaintiff claims against the Defendant for damages arising out of an industrial accident which occurred on 25th April 1994. Judgment on liability was obtained after trial before Hon. Pang J. on 17th November 1988. The case was then set down for the assessment of damages before a Master. The hearing was adjourned when it came before me on 20th April 1999. The Defendant was granted leave to file further medical reports and witness statements. Leave was also granted to the Defendant to file a Re-Re-Amended Reply (i.e. Second Reply) to the Plaintiff's Revised Statement of Damages. No such Reply was filed when the assessment of damages resumed before me on 4th October, 1999.

Preliminary issue

2. Ms. Pinto, counsel for the Plaintiff, applied for and was granted leave to amend the Revised Statement of Damages, which was filed on 5th October 1999. The Re-Revised Statement of Damages incorporated the Plaintiff's two recent admission to the Psychiatric Ward of the United Christian Hospital and amended the amount claimed for medical and travelling expenses.

3. Mr. Kwok, counsel for the Defendant, applied to amend the Defendant's Further Reply to Revised Statement of Damages. Apart from dealing with the Plaintiff's new amendment, the Defendant wished to allege, for the first time that the Plaintiff's wages at the time of the accident was lower than $7,020 claimed, and to amend the multiplier from 12 to that of 9. After hearing submission from both counsel, I refused to allow the proposed amendment save in respect of answer to the Plaintiff's amendment.

Practice Direction 18.10 provides:

" 10.1. .....Where an item of claim in the revised statement of damages is not agreed, the defendant shall state in his answer, whether or not he agrees, subject to liability, that such item is recoverable and, if so , the amount of damages he considers is recoverable in respect thereof...........'

4. I was of the view that the Plaintiff was quite entitled to adopt the figure of $7,020 stated by the Defendant on the Form 2 as the monthly wages at the time of the accident. The Defendant had never raised any objection and had in fact adopted the same figure to work out their calculation of the loss of earnings in both the first Reply and the Further Reply. The purpose of filing and serving the Revised Statement of Damages and Answer is to allow parties to state clearly the issues in contention. No reason has been offered as to why it has taken the Defendant so long to apply for the amendment, particularly when general leave to amend was granted by me back in April this year. The Plaintiff relying on the Answers, has understood that the sum of $7,020 was not challenged. To allow an amendment at such a late stage in the absence of good reasons is both unjust and prejudicial to the Plaintiff. I therefore refused the application. It should be noted, however, that the Defendant's said calculation was only up to March 1997. I allowed the Defendant to adduce evidence in respect of the monthly wages the Plaintiff would have earned but for the accident from April 1997 onwards.

5. As to the application to amend the multiplier from 12 to 9, Mr. Kwok informed me that it was because he has come to a different view from that of his instructing solicitors. I was of the view that the matter of applicable multiplier was to be decided by the Court hearing the assessment of damages. The court may not accept the respective figures suggested. However, where the Defendant has suggested a multiplier in his Answer, though the Plaintiff did not accept it, it may well be argued that as far as the Plaintiff is concerned, the Defendant would not contend for a multiplier lower than that stated in the Answer. There may also costs implications should the Plaintiff failed to get the multiplier proposed. To allow the Defendant to amend the suggested multiplier of 12 to 9 for no better reason but a difference in opinion between counsel and instructing solicitors, and in the absence of good reason why the amendment was not sought earlier, would have been both unjust and prejudicial to the Plaintiff. I also refused to allow such an amendment.

6. Leave was only granted to the Defendant to file A further Reply in answer to the Re-Revised Statement of Damages.

Plaintiff's injuries and treatment received

7. There is no dispute that the Plaintiff's right hand was trapped between the rollers of a machine and she sustained injury to her right forearm and right hand. She was taken to the Accident and Emergency Unit of the Kwong Wah hospital ("KWH") the same morning. The medical findings on examinations (agreed document, item 23 of the bundle) were:

" 1. Bruise and tender, dorsal aspect of right forearm.

2. Bruise and tender, dorsal aspect of the right hand.

X-ray of right forearm and right hand: no fracture was detected."

8. She was discharged with pain killers and 7 days' sick leave.

9. The Plaintiff sought herbal treatment upon discharge from the KWH though what the exact treatment was is unclear.

10. On 27th May 1994 (two days after the accident), she attended and was admitted to the Hong Kong Baptist Hospital ("HKBH"). Dr. Tseng Hing Chuen, who was not called as a witness, described the Plaintiff's condition when he saw her on 27th May 1994 in a letter to the Defendant's solicitors (agreed document, item 35D of the bundle): Dr. Tseng found, inter alia, that "...she had severe swelling on her right hand, fingers and forearm. She also had a 5x5 cm discolo[u]red blister over her mid-dorsal forearm and another necrotic ulcer distally. She had extensive dermatitis with minor blistering of variable sizes over her right forearm and hand..." Dr. Tseng's diagnosis was that the Plaintiff suffered from:

" 1 Post-Compartment syndrome of stiffness of right hand and forearm.

2 Right forearm skin necrosis.

3 Right forearm and hand dermatitis and cellulities.

She definitely had herbal dermatitis with evidence of herbal staining plus red, warm, swollen skin and multiple blisters of variable size and confluence signifying dermatitis.

In presence of herbal dermatitis, of such severity as to cause extensive blistering over the area that herb was applied, superimposed infection could not be ruled out and is always possible."

11. The Plaintiff had a minor debridement operation on 3rd June 1994 and a split thickness skin graft operation on 6th June 1994. She was discharged on 8th June 1994. She had a pressure-garment treatment regime from 29th June to 30th August 1994.

12. The Plaintiff was seen at the Orthopaedic and Traumatology Department of the United Christian Hospital ("UCH") on 28th December 1994 and the clinical diagnosis was reflex sympathetic dystrophy ("RSD"). She was referred for physiotherapy treatment at the same hospital (see agreed documents, items 25 & 26 of the bundle). She attended treatment from 5th January to 7th August, 1995 and from 2nd September to 29th September, 1995. She was discharged as no further improvement with the treatment was expected.

13. When the Plaintiff attended the Orthopaedic and Traumatology Department of UCH on 28th December 1994, she was observed to be "depressed and cried easily" upon examination. She was then referred for psychiatric treatment. The Plaintiff was first seen at the psychiatric unit of UCH on 17th May 1995 for "insomnia, low mood, anxiety as well as residual arm and neck discomfort" She was diagnosed to suffer from"depression, of moderate severity and tendency to recur" (agreed document, item 28 of the bundle). She was admitted into the inpatient ward of UCH in August, 1995, October 1995 and April 1997. She was given two courses of Electroconvulsive therapy. On 7th October 1997 she was admitted to the Psychiatric Ward of the Pamela Youde Nethersole Eastern Hospital ("PYNEH") for further inpatient treatment (agreed document, item 27 of the bundle).

14. The Plaintiff was again admitted into the Psychiatric Ward of UCH from 5th July to 14 August, 1999, and again on 13th September 1999. At the time of the hearing, the Plaintiff was still an in-patient of the said hospital.

15. None of the doctors or staff of KWH, HKBH, UCH, or PYNEH were called to give evidence. Instead, both the Plaintiff and the Defendant called expert medical witnesses. On the orthopaedic issue, the Plaintiff called Dr. Lau Hoi Kuen ("Dr. Lau") while the Defendant called Dr. Lam Kwong Chin ("Dr. Lam"). On the psychiatric issue, Dr. Wong Chung Kwong ("Dr. Wong") was called by the Plaintiff and Dr. Benjamin Lai ("Dr. Lai") was called by the Defendant.

Issues involved

16. I have related the Plaintiff's injuries and treatment in detail as they are most relevant to the following issues before me:

1. Given that the Plaintiff was found to have suffered from bruises and tenderness and was discharged with pain killers and 7 days sick leave after attending KWH, and that she had to undergo debridement and skin graft operation at the HKBH shortly afterwards, does the herbal treatment amount to a novus actus interveniens breaking the chain of causation, or has contributed to the extent of disability (both orthopaedic and psychiatric) suffered by the Plaintiff?

2. Further, there being no dispute that the Plaintiff suffered from a depressive disorder, apart from the issue of causation, the question is whether her condition amounts to Major Depressive Disorder ("MDD") or Dysthalmic Disorder ("DD"), the former being more serious.

Before turning to the expert medical evidence, it should be noted that the Defendant has produced a surveillance tape (exhibit D5) showing the Plaintiff on different occasions, either by herself, with her husband, or with her sons.

Orthopaedic evidence

17. It is convenient at this point to set out the comments of Dr. Tseng regarding the Plaintiff's orthopaedic conditions. When Dr. Tseng was asked whether the debridement and skin graft operation was likely to be necessitated by "physical/mechanical trauma" to Plaintiff's hand or the "application of herbs or other treatment", gave the following answer:

"The physical/mechanical trauma produced the main initial damage. Complication by herbal treatment made surgical treatment mandatory. Without the initial trauma, no herbal treatment might be necessary in the first place. Even if herbal treatment is applied for minor trauma, rarely would necrosis of such extent appear and surgical debridement and/or skin grafting is/are rarely required."

Dr. Tseng also gave reasons for his opinion:

"........................................................................................

Without the crush injury, pure herbal application usually don't produce skin and fascial necrosis and underlying myositis as well as compartment syndrome, as seen in Madam Wai's case.

............................................................................................

In Madam Wai's case, subfascial necrosis and infection had remained localised to the area beneath the forearm necrotic skin patch, which suggested that the source of subfascial infection that leads to surgical debridement is related directly to the crush injury."

18. Dr. Tseng was of the view that in the Plaintiffs' case, had there been no herbal treatment " [a]t most, her crush injury produced a Moderate compartment syndrome initially, which if uncomplicated by infection, may usually improve gradually......... However, in Madam Wai's case, herbal dermatitis and cellulitis made surgical intervention a must

...........................................................................................

In Madam Wai's case, the initial crush injury must be the primary factor that caused the subsequent skin necrosis.

Subsequent herbal treatment must also have contributed to the extent of injury by contaminating the skin necrosis and blisters induced by the crushed injury. Most importantly, cellulitis and subfascial infection created a surgical emergency that required urgent antibiotic and surgical debridement and drainage."

19. Dr. Lau prepared two reports on the Plaintiff, one dated 28th April 1998 (exhibit P3A) and the other dated 12th June 1999 (exhibit P3B). Dr. Lau found that the Plaintiff suffered from a combination of the effect of "Shoulder-hand syndrome, Volkmann's ischaemic contracture and reflex sympathetic dystrophy". As to the effect of the herbal treatment, Dr. Lau agreed with Dr. Tseng's opinion and was of the view that the "trauma itself should bear all responsibility" in relation to the permanent disability suffered by the Plaintiff. Dr. Lau disagreed with the suggestion that the herbal treatment was either the sole or main cause of the surgery. Dr. Lau agreed that on the orthopaedic disability (and disregarding her psychiatric problems), the Plaintiff may be able to do"simple jobs such as car-park attendant, lift operator or messenger."

20. Dr. Lam has also prepared two reports on the Plaintiff, one dated 6th May 1998 (exhibit D1A) and the other dated 19th April 1999 (exhibit D1B). Dr. Lam was of the view that the initial injury was a minor one and that the main trauma came from the "improper treatment by the bonesetter". It should be noted that although in the original report (exhibit D1B), Dr. Lam has described "scalded wound", "hot herbs" , "skin burnt" etc. (emphasis added), he agreed in court that there was nothing on the record to justify such descriptions and adopted the descriptions "damage to the skin," and "skin damage and dermatitis" instead. Dr. Lam was of the view that the Plaintiff's present disability was due to RSD, and that, "based on the severity of the disability caused by the trauma itself and the damage to the skin", he would "attribute only a very minor part to the initial trauma, say, 1/5 of the responsibility".

21. Does the herbal treatment amount to novus actus interveniens? Although there is a conflict of evidence as to how and why the Plaintiff sort such treatment, I am satisfied it matters not whether the Plaintiff acted on the advice of the supervisor, Madam Hung Fan Bun ("Madam Hung"), or of her own accord, when she sought such treatment. I accept the submission of Ms. Pinto, with reference to Yu Ki v Chin Kit-lam and Another [1981] HKLR 419, where the court held that it was "reasonable for any person of Chinese race to decide at any stage that Chinese herbal medicine or the attentions of a bone-setter are likely to be beneficial, whether or not he has previously sought conventional medicine and treatment, or still receiving it", per Roberts, C.J. at p. 422. Not only that I agreed with the decision by the learned judge, I also bear in mind that since 1981 Chinese medicine and treatment has gained more recognition in our society. I find that it was reasonable for the Plaintiff to seek herbal treatment after she sustained the initial crushing injury.

22. Does the herbal treatment contribute to the extent of permanent disability suffered by the Plaintiff? Although Dr. Tseng was not called as a witness, I accept that he was in the best position to observe the condition of the Plaintiff and to explain the need for the surgery. There is a difference in opinion as to the "severity" of the Plaintiff's initial injury based on the medical report from KWH (with reference to "7-days leave"). Dr. Lam was of the view that the injury was minor, as indicated by the fact that she was discharged with"only 7 days leave". Dr. Lau, on the other hand, was of the view that such period of leave "does not necessarily suggest that the injury was a minor one". Dr. Tseng has this to say about the matter: ".............7 days leave sick leave was recommended on discharging Madam Wai. This suggested that the first examining Doctor already noted the severity of the soft tissue injury and therefore granted seven days of sick leave to Madam Wai in the first visit instead of the usual practice of one to two days sick leave issued by A&E Department for minor injuries that will be subjected to further extension follow up.

23. From Dr Wu's notes, the degree of "Bruises and Tender right forearm ....and hand" suffered by Mdm. Wai, although significant, (as implied by the seven days sick leave), was much less than the degree of damage witnessed by me two days later in Baptist Hospital....". The best person to explain the significance of 7 days sick leave is of course the doctor who had recommended it. Unfortunately I do not have the benefit of his testimony. Although the Plaintiff's condition was somewhat complicated by the herbal treatment, I am satisfied on the evidence before me, particularly the findings and comments by Dr. Tseng, that the Plaintiff did not suffer a very minor initial injury as suggested by the defence. I further find that the initial crush injury was the primary factor that caused the subsequent skin necrosis, and that the herbal treatment has contributed to the injury. Having made these findings, was there a case for the plea of novus actus interveniens, alternatively, should there be an apportionment to reflect the contribution.

24. I find the following passage in Munkman on Damages for Personal Injuries and Death, 10th ed. useful:

"In general, if the original damage has left the plaintiff exposed to risks of misfortune, misjudgment or accident which would not otherwise have risen, further damage from the materialisation of these risks may be recoverable, unless it was wholly due to the negligence or deliberate act of the plaintiff or a third party" (p. 27).

25. There is no evidence before me as to what kind of herbal treatment the Plaintiff had received. According to Dr. Tseng, the herbal treatment has contaminated the skin necrosis and blisters induced by the crush injury. A reasonable inference to be drawn, on a balance of probabilities, is that the Chinese herbalist was negligent in treating the Plaintiff. However, I am satisfied that the nature of the subsequent 'medical mistreatment' does not amount to a new intervening factor. I find the chain of causation has not been broken and the plea of novus actus interveniens failed. Further, I find that it was the original crush injury suffered by the Plaintiff which has exposed her to the risk of the misfortune in suffering further damage due to the negligent herbal treatment, I therefore reject the defence contention of apportionment. If I were wrong in my approach and an apportionment is to be made in recognition of the effect of the herbal treatment, on the basis that the initial crush injury was the primary factor that had caused the subsequent skin necrosis with the herbal treatment contributing to the extent of injury, I would have thought a deduction of 20% reasonable, leaving the Defendant liable to 80%.

Psychiatric evidence

26. Dr. Wong has prepared three reports on the Plaintiff, dated 2nd May 1998 (exhibit P1A), 6th September 1998 (exhibit P1B), and 2nd June 1999 (exhibit P1C) respectively. In gist, Dr. Wong, with reference to the available medical reports and notes on the Plaintiff, was of the view that the Plaintiff suffered from MDD. The relevant part of DSM-IV concerning MDD (exhibit P2A) and DD (exhibit P2B) were admitted in evidence. In order to qualify as MDD, a Major Depressive Episode must be present. "The essential feature of a Major Depressive Episode is a period of at least 2 weeks during which there is either depressed mood or the loss of interest or pleasure in nearly all activities" (p. 320 of P2A). Dr. Wong was of the view that the Plaintiff satisfied criteria A(1), (2), (4), (5), (6), (7), (8) and (9); B; C; D; and E set out on page 327 of exhibit P2A. Dr. Wong also placed reliance on the use of Electroconvulsive therapy and depot Haldol injection on the Plaintiff to indicate the seriousness of her condition.

27. As to the causation of her mental illness, Dr. Wong offered the theory of"necessary versus sufficient causes". According to Dr. Wong, a necessary cause is "one that is absolutely essential to cause the illness, such as the bacteria in the case of a bacterial pneumonia", a sufficient cause, on the other hand, is "one that predisposes the person to the condition, such as weak health in the case of pneumonia". Dr. Wong was of the view that the accident was the necessary cause to the Plaintiff's psychiatric problem as she was free from such illness before the accident. It should be noted that Dr. Wong did not change his opinion after viewing the said surveillance tape.

28. Dr. Lai prepared two reports on the Plaintiff, one dated 18th August 1998 (exhibit P4A), and the other dated 7th May 1999 (exhibit P4B). Dr. Lai diagnosed the Plaintiff to be suffering from DD. "The essential feature of Dysthymis Disorder is a chronically depressed mood that occurs for most of the day more days than not for at least 2 years" (p. 345 of exhibit P2B). Such diagnosis can only be made "if the initial 2-year period of dysthymic symptoms is free of Major Depressive Episode (Criterion D)." (p. 346 of exhibit P2B).

29. Dr. Lai disagreed with Dr. Wong's diagnosis of MDD and was of the view that the diagnostic criteria required for MDD were not met. As to causation of the psychiatric illness, Dr. Lai was of the view that in the Plaintiff's case, there are multiple causative factors: her unhappy childhood; unhappy married life in China; marital discord in Hong Kong; loss of working ability due to the accident; and unemployment.

30. I will first deal with the issues of MDD and DD. Both Dr. Wong and Dr. Lai relied on medical records and notes made by other doctors on the Plaintiff, and their examination of the Plaintiff in 1998 and 1999 to form their opinion. The question whether the symptoms of the Plaintiff in the initial 2-year period amount to MDD or not would best be answered by the doctors treating her during that period. None of those doctors were called to give evidence. After carefully considering all the evidence before me (including the demeanour of the Plaintiff when giving evidence; the video-tape evidence; the various medical reports and the evidence of both experts in court), I prefer the view of Dr. Lai to that of Dr. Wong. I find that the Plaintiff was not suffering from MDD, but DD, a comparatively less serious condition. I find it illogical to use the treatment received by the Plaintiff to infer that her condition must have been serious. The Plaintiff could easily have called the doctors who had treated her to testify that she was suffering from MDD if that was indeed the case. Instead, the Plaintiff was content to rely on interpretation made Dr. Wong on the notes made by the consulting doctors (such as, "broken sleep" on 13.9.95; "still withdrawn" on 27.9.95, "psychomotor retardation" on 25.10.95, "mildly depressed" on 7.1.97, "depressive" on 20.1.97; to name a few) to come to the conclusion that a Major Depressive Episode was present.

31. I should mention here that when the Plaintiff was interviewed by Dr. Wong and Dr. Lai on different occasions, she has presented a rather different personal picture. In gist, the picture painted for Dr. Wong was that the Plaintiff had a happy childhood; that she got on well with her parents-in-law after marriage while stilling living in China; and that she had enjoyed a good marital relationship with her husband. On the other hand, the story she told to Dr. Lai was that she had an unhappy childhood; she didn't get along with her in-laws in China; and there was marital discord between her and her husband. Although the Plaintiff denied having told Dr. Lai such a version, there was no suggestion to Dr. Lai that he had not accurately reflected what the Plaintiff has told him when he gave evidence. I certainly have no reason to disbelieve Dr. Lai. Since the Plaintiff's husband was not present when Dr. Lai interviewed her, I can only guess that the Plaintiff was more forthcoming with her feelings, particularly when it related to her husband and his family.

32. I now come to the causation issue. Although I agree with Dr. Lai's diagnosis of DD, I prefer Dr. Wong's "necessary versus sufficient causes" to Dr. Lai's "multiple causative factors". I am satisfied that on the evidence before me, the Plaintiff was free from psychiatric illness before the accident. The accident and the resultant injury with the inability to work was the prime cause of the Plaintiff's depression. Even though with the Plaintiff's disposition and family situation, the depression might have been triggered if the accident had not occurred, the fact remains that it was the accident that has triggered the depressive illness.

Pain and suffering and loss of amenities of life ("PSLA")

33. Before I consider whether the Plaintiff's case fell into the "substantial injury" or "gross disability" set out in the case of Lee Ting Lam [1980] HKLR 657, I wish to make some observation on my assessment of the evidence of the Plaintiff and the surveillance tape. The Plaintiff is an uneducated woman who is undoubtedly suffering from psychiatric illness, though I have ruled that she was suffering from DD instead of MDD, she was indeed rather slow in her response at time when answering questions in court and she did look rather dull when captured on video. Whilst accepting that she has lost much use of right limb, I do not believe that she was as incapable as she had made out. There was no difficulty when she used her right hand to eat, or to tear open a packet of sugar. She could definitely carry something with her right hand, though not heavy items. I have serious reservation as to her testimony that she could not properly cook and had to relied on ready made food. I am of the view that the Plaintiff has exaggerated the extent of her disability.

34. Ms. Pinto submitted that the Plaintiff's case come into "gross/substantial" injury category. That was of course on the basis of MDD. As a result of my findings and observations, I am satisfied that the Plaintiff's case falls into "serious/substantial" injury category. In Lee Ting Lam, the general range of awards for "serious injury" was $60,000 to $80,000, and for "substantial injury", $80,000 to $100,000. These sums have since been updated periodically with the latest one in the case of Chan Pui-ki, H.C.A. No. A2006 of 1992, (judgment in July 1996). The relevant range of awards are $400,000 to $540,000 and $540,000 to $660,000 respectively.

35. The Plaintiff's pain and suffering and loss of amenities of life is assessed at $540,000.

Loss of Earnings

36. I have already ruled that the Defendant could not challenge the Plaintiff's pre-accident monthly earnings of $7,020 and have allowed evidence to be adduced as to the earnings the Plaintiff would have earned but for the accident as from April 1997. In the Defendant's Reply to Revised Statement of Damages, the Defendant disagreed with the assumption of 7% per annum increase in the Plaintiff's earnings. The defendant adopted the Consumer Price Index figure of 15.9% from October 1994 to November 1997 and contended that the loss of earnings up to March 1997 was $265,230 [(7,020 + 7,020 x 115.9%) x 0.5 x 35 months]. The Defendant in its Second Further Reply to Revised Statement of Damages contended that the current monthly wages of a worker employed by the Defendant in similar position as the Plaintiff is $5,940. Alternatively, the Defendant relied on the average wages for a female general worker according to government statistics of March 1999 as between $5,151 and $6,677.

37. Although no explanation was given as to how this amount of $5,940 came about, when one looks at the payment record of Ms. Wong Siu Mei annexed to the statement of Madam Hung (exhibit D3), it can be seen that it was the amount received by Ms. Wong for the month of March 1999. Apart from the said statement, Madam Hung also gave oral evidence with reference to the said record. According to Madam Hung, the Defendant paid the Plaintiff a higher daily rate of $270 with no allowance when the Plaintiff was first employed. She said that the Plaintiff would not have had any increase in the daily wages but would have had received $10-20 daily allowance for 1997 and 1998 had the Plaintiff not met with the accident. She pointed to the said record and said that Ms. Wong, who was performing duties over and above those originally done by the Plaintiff was receiving a daily wage of $240 from March 1997 with a daily allowance of $60. She also testified that since 1998, the economic downturn was such that the number of working days were reduced so that for every other day of the total working days, the worker only worked half-day.

38. I have perused the said record. From April 1997 to March 1998, Ms Wong worked on average 22 days per month. She started working half-day at times since the latter half of April 1998. However, those days do not amount to half of all the working days as testified by Madam Hung. I do not think that Madam Hung has deliberately lied. Rather, I find that it was just a generalization made by her as it can be seen from the record that in some months, the number of days with half pay indeed amounts to half of the total number of working days. I have made a calculation as to the average monthly income from May to December 1998 and from January to March 1999 (i.e. full months in which Ms. Wong was paid both full and half daily wages), the amounts came to $5,722.50 and $5,680 respectively.

39. Apart from the inaccuracy I have already mentioned (i.e. number of days in which Ms. Wong only obtained half pay), I do find Ms. Hung an honest and reliable witness on the issue of earnings. I accept the Plaintiff would not have had any increase to the daily wages and that she would have had about $10-20 daily allowance from March 1997 to the date of trial. I also accept that Ms. Wong performed more duties than the Plaintiff. I find the Defendant's suggestion of adopting Ms. Wong income reasonable. However, since the Defendant, who was in a position to state in response to the Plaintiff's Statement of Damages what the Plaintiff would have earned with reference to Ms. Wong's income, has chosen not to do so in its Reply; but adopted an increase in line with inflation up to March 1997. I will adopt the Defendant's approach though in reality the Plaintiff would not have enjoyed any increase.

40. From April 1997 to March 1998, in line with Ms. Wong's earnings, I will adopt a daily income of $300 and an average working days of 22 per month. The monthly income for this period would have been $6,600 (300 x 22) but for the accident.

41. As for the period from April 1998 to date of trial, since the defendant's adoption of Ms. Wong's latest income at $5,940 turns out to be more advantageous to the Plaintiff than to adopt an average figures of either $5,722.50 or $5,680 mentioned above, I will adopt $5,940 as a starting point. I note on the record that Ms. Wong was paid double pay (year-end bonus) for the year 1997 (paid on 15th January 1998) and for 1998 (paid on 27th January 1999). The double pay for 1997 simply says "one month" and the amount was $7,020. The bonus for 1998 was calculated on the basis of the full daily rate (i.e.$240) x 26 days. It is not apparent how the bonus of $7,020 amount to "one month" when Ms. Wong's daily rate was $240. I do not have the benefit of counsel's submission on this point. I am nevertheless satisfied that the Plaintiff would have been entitled to double pay had she been employed and I will take that into account. I find it reasonable to adopt the basis of the daily rate x 26 days for the calculation of bonus. The Plaintiff's daily wage was $270, her entitlement of double pay would have been $7,020 ($270 x 26). A sum of $585 ($7020 - 12) has to be added onto the amount of $5,940, making a total of $6,525. I adopt this figure as the monthly earning of the Plaintiff at the time of trial.

42. I also find that the Plaintiff did try to resume duty with the Defendant and was unable to do so due to her orthopaedic problems. Together with her psychiatric problems, I am satisfied that she was and still is unable to work.

(a) Pre-Trial Loss of Earnings

(i)	From May 1994 to March 1997:
	[(7,020 + 7,020 x 115.9 %) x 0.5 x 35 months = $265,230
(ii)	From April 1997 to March 1998:
	(no adjustment is made to monthly income to reflect the bonus, rather, the bonus is added on separately)
	($300 x 22) x 12 months + 7,020 = $86,220
(iii)	From April 1998 to date of trial:
	(the bonus entitlement has already been reflected in the monthly income)
	$6,525 x 18 months = $117,450
	Total: $468,900.00

(b) Future Loss of Earnings

43. Both Dr. Lau and Dr. Lam opined that the Plaintiff could have taken up light jobs with her orthopaedic disability. I have to bear in mind that she was suffering from Ddas well. Although Dr. Lam did not consider "life long treatment" to be expected (page 5 of exhibit D4B) ( I will return to this issue later in considering future medical expenses), it remains a fact that the Plaintiff would have to receive treatment for a considerable period of time. The Plaintiff was born on 26th March 1958. She was 36 at the time of the accident and 41 at the time of assessment. With her orthopaedic disability; her psychiatric illness which necessitates treatment; her age; her lack of formal education; and the economic downturn, it would not have been realistic to expect her to get employment in the open market.

44. Ms. Pinto referred me to a "Multiplier Table for Non-fatal cases up to July 1996 by Michael Ozorio, QC & Victor Gidwani (2nd ed.)" and proposed a multiplier of 13. Having perused the said table, I am of the view that 13 is on the high side. But for the fact that the Defendant has proposed a multiplier of 12 in its Reply to the Revised Statement of Damages, I would have considered a multiplier of 10 more appropriate in the Plaintiff's case. Adopting the Defendant's proposal of 12, the amount awarded is $939,600 ($6,525 x 12 x 12).

Special damages

The following special damages are admitted by the Defendant:

1. Medical expenses - $17,612

2. travelling expenses - $2,932.

There is, however, a dispute on the amount for the tonic food.

Tonic Food

45. The Plaintiff claims $20,000 under this heading. She testified that she had purchased tonic food in the form of "deer antlers" and "deer tails" as nourishment. No receipts were adduced to support her claim. On the authority of Yu Ki (ibid), where there is no evidence as to the 'advisability or suitability' of such food (per Roberts C.J. at p. 421), a nominal sum is recoverable where it is believed that the food would be helpful to the Plaintiff's recovery. Given the seriousness of her orthopaedic condition, and that the Defendant offered $15,000 in its Reply to Revised Statement of Damages, I allow a sum of $15,000.

Future Medical Treatment

46. As I reject Dr. Wong's diagnosis of MDD, his suggestion of treatment is not applicable. Although Dr. Lai suggested psychotherapy in the form of once weekly half-hour session for three months and then once a fortnight for another three months, and then to re-assess the need for further psychiatric treatment (page 5 of exhibit D4B), even taking into account whatever anxiety the Plaintiff might have experienced when the trial was pending, the fact remains that she was hospitalised from 5th July to 14th August this year, and again on 13th September and was still hospitalised at the time of the assessment. There is no testimony from doctors currently treating her to inform me of her condition, prognosis and treatment. Doing the best I can under the circumstance, I will make the assessment on the basis that she requires treatment for the next 2 years. In the first 12 months, I allow a half-hourly session once a week. For the next 12 months, once a fortnight. It could well be that in reality treatment would not be in such format or duration. However, in the absence of evidence and in adopting an over-all approach, this assessment will take into account any contingency of needing future inpatient treatment.

47. There is the added difficulty of whether the Plaintiff should have private treatment or continued to be treated in public hospitals. While not in any way suggesting that doctors at public hospitals are not properly qualified, I do accept Dr. Wong's evidence that the turn-over of doctors at public hospitals would mean that the Plaintiff would be seen by different doctors. Further the Plaintiff might not have as long a session at a public hospital as with a private practitioner. I am satisfied that it is reasonable for the Plaintiff to have treatment by a private practitioner. According to Dr. Wong, the cost for a one-hour session ranges from $2,000 to $5,000 in the private sector (page 17 of exhibit P1A). I adopt the figure of $3,500 for one hour, the fees for a half-hour treatment is therefore $1,750. For the first year the amount will be $91,000 (1,750 x 52 weeks). For the second year, $45,500 [(1,750 x (52 weeks - 2)), making a total of $136,500.

Loss of Pension Rights

48. Ms. Pinto submitted that the Plaintiff would have been entitled to the benefit of the Mandatory Provident Fund Scheme to the extent of 5% contribution from the employer.

49. I accept that the Plaintiff would have been so entitled. However, I do bear in mind that up to the present, the relevant section (i.e. section 7A) of the Mandatory Provident Fund Scheme, Cap. 485, has not been in operation yet and allowance must be given for that. I will allow 10 years under this item: $39,150 ($6,525 x 12 x 10 x 5%)

Costs for Fund Management

50. The Plaintiff has abandoned this claim.

Quantum of damages:

1.	PSLA -			$540,000
2.	Loss of Earnings:
	Pre-trial	$468,900
	Future	$939,600		$1,408,500
3.	Special Damages:
	Medical -	$17,612
	Travelling -	$2,932
	Tonic food -	$15,000		$35,544
4.	Future Medical Expenses			$136,500
5.	Loss of Pension Rights			$39,150
			Total	$2,159,694
				========

Interest

1. Interest on the PSLA award of $540,000 at the rate of 2% per annum from date of Writ (25th April 1997) to date of judgment.

2. Interest on the special damages of $35,544 and the Pre-trial loss of earnings of $468,900 at half the judgment rate (5.65% per annum) from date of accident (25th April 1994) to date of judgment.

Costs

51. In order to save legal costs, I have indicated to counsel that I would make a nisi costs order.

52. This assessment has taken 5 days. Although the Defendant failed in its plea of novus actus interveniens and on the issue of contribution, I did find the Plaintiff to have suffered from DD instead of MDD. I am of the view that about 20% of the actual assessment and the preparation should be allocated to this particular issue. I make the following nisi costs order, such order to become absolute should no application to review is made within 14 days:

1. The Defendant do pay 80% of the total costs of the assessment to the Plaintiff, to be taxed if not agreed.

2. The Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

3. There will be certificate for counsel.