YIP MAU LEUNG v. THE UNIVERSITY OF HONG KONG

HCPI No. 542 of 1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 542 OF 1999

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Assessment of Damages

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Introduction

1. This is an assessment of damages following the entry of judgment on liability by consent on 20 December 1999 against the University of Hong Kong, the employer of the plaintiff, an artisan now aged 28. At the time of the accident at work on 28 May 1996, the plaintiff was aged 24. He fell whilst discharging his duties, injuring his right wrist and now seeks quantification of his loss and damage against the University.

The facts

2. The plaintiff who has attained form 3 education and an artisan by training commenced working for the University in April 1993. He was throughout his employment engaged as an artisan in the Department of Civil Engineering. On the date of the accident, he was assisting other workers in transferring sandstone to the laboratory of the department where he worked. As he did so, the rope he was pulling suddenly snapped, causing him to fall backwards. In the result, his right hand was injured. There was little doubt that he suffered severe pain in the right wrist at the time.

3. After the accident, the plaintiff attended the University Health Centre where tenderness at the base of the 2nd and 3rd metacarpals and limitation of the affected wrist, flexion and extension, were diagnosed. He was prescribed analgesic drugs and a course of physiotherapy treatment. He was granted sick leave from May 28 to September 5, 1999 and was able to return to his pre-accident work with occasional assistance from his colleagues and lighter duties being assigned to him. There were two subsequent periods of sick leave of shorter duration. These were from March 5 to March 6, 1997 and April 22 to May 13, 1999. The plaintiff is right hand dominant.

4. Response to treatment was slow and the plaintiff was initially referred to the Occupational Therapy Clinic in June 1996. In August of the same year, he was referred to David Trench Rehabilitation Centre for treatment and assessment. Conservative treatment by medication, splintage, physiotherapy and occupational therapy followed. The evidence disclosed that although residual pain over the right wrist continued, the plaintiff was able to bear the pain and continue in employment.

5. From the evidence, it is plain that the plaintiff has suffered in total three separate episodes of sprain injury to the same wrist. The first was on 5 November, 1994 when the he was playing badminton. This was the first occasion when sprained scapholunate ligament of the right wrist was diagnosed. On that occasion, the plaintiff underwent a period of physiotherapy and occupational therapy and it was noted that his response to treatment had been slow as was the case following his industrial injury for which he has brought suit. The significance of this first incident and its impact on the assessment of percentage of impairment were the subject of a divergence of opinion between the medical experts. Of that more later.

6. On 22 April, 1999, the plaintiff met with yet another accident, his third, involving the same wrist as he was engaged upon making screws in the department. He corrected the erroneous impression given in Dr. Tsoi Chi Wah, Danny's medical report dated 25 October, 1999, ("Dr. Tsoi") the injury had been sustained while he was attempting to tighten a screw. Treatment with analgesics and a further course of physiotherapy followed.

7. As a consequence of his injuries sustained during the course of his employment, the plaintiff has complained of experiencing difficulty discharging his duty with efficacy. He testified that he would feel pain in the dorsal section of his hand if he applied too much force when using tools such as hammer or screwdriver. His present predicament has also impacted aversely on his pursuit of leisure activities. Being an active and sporty person, it is his case that he is no longer able to play badminton which previously he would regularly play at weekends and holidays or to ride a bicycle. His hiking and camping activity has also had to be scaled down on account of his inability to carry too much weight with his weakened hand. Four photographs were referred to in the course of his testimony. They depicted him snow skiing during his one and only trip to a ski slope in South Korea, attending a friend's badminton competition and frolicking on a beach. That his strong and healthy interest in sporting activities has been curtailed to a degree seems clear. Although he is no longer able to play badminton, other sports and recreational activities remain open to him. To this extent, the asserted loss of amenities was decidedly overstated on the evidence.

8. Having heard the plaintiff, I am able to conclude that he was an essentially truthful and reliable witness despite the defence criticism of his credibility. It was contended that he was less than frank when relating the reason for not having applied for promotion to senior artisan in 1996. His evidence was that criticism by his supervisors over his performance at the time and insufficient notice of the vacancy caused him to miss the opportunity of applying. Whilst this aspect of his testimony was at odds with the evidence of DW2, Dr. Kwan and therefore, unlikely to have been true, the fact remained that he was telling the truth on all other material respects. In particular, his complaint regarding his injury is well supported by the medical evidence adduced.

The medical findings

9. The agreed medical evidence revealed that the plaintiff has suffered scapholunate laxity and dorsal wrist syndrome with dynamic carpal instability. An X-ray examination in September 1998 indicated an increase of the scapholunate gap, a deterioration of the condition. This was diagnosed by Dr. Boris Fung of Queen Mary Hospital. The uncontroverted opinion of Dr. K C Lau of the Hong Kong University Health Service dated 10 May 1999 suggested that the condition was difficult to treat. Surgery was offered but declined by the plaintiff, a reasonable refusal given the view of the defence expert, Dr. Danny Tsoi ("Dr. Tsoi") that surgery could lead to an additional problem of stiffness in the wrist. Dr. Lau was satisfied that the plaintiff was suffering from chronic right wrist pain with intermittent exacerbations that made it difficult for him to cope with his work as an artisan.

10. Dr. Chan Kow Tak ("Dr. Chan") stated that the plaintiff's right hand was weaker than his left hand, it showing about 70% of the left wrist strength even without the use of a grip power device. Similar tests performed by Dr. Tsoi with a dynamometer yielded significant and inconsistent variations in the grip strength of the injured hand leading him to conclude that the result was unreliable. He was however satisfied that the clinical features were compatible with the diagnosis of scapholunate subluxation.

11. Dr. Chan did not doubt the genuineness of the plaintiff's complaints, a view he formed following examination of the plaintiff in May 1999. That opinion confirmed at trial demonstrated that weakness, pain and stiffness of the right wrist would remain a problem for the plaintiff. He was further of the view that with his current disability, the plaintiff was suitable only for light duty work such as clerical or computer work. Dr. Tsoi agreed that heavy manual work would aggravate the condition or cause further injury to the wrist and that with his Form 3 education, the plaintiff's employment opportunity was now limited.

12. It is noted that that the clinical findings of these two doctors were broadly similar, differing only on interpretation. Dr. Tsoi considered that the first unrelated episode of injury to the wrist in November 1994 was considerably more serious than presented in the earlier medical findings on account of the slow recovery and the long sick leave taken. He volunteered that the injury could not have been a simple sprain. On that basis and assessing the plaintiff's current impairment of the whole person at 6%, he attributed at least 50% of the responsibility for the plaintiff's disability to the badminton accident. The two subsequent injuries he stated should each account for 1.5% of the remaining impairment. Disagreeing, Dr. Chan countered that all three accidents should bear equal contribution to the plaintiff's present condition. If it were necessary to embark on such an exercise, which for reasons to be stated later is entirely inappropriate on the authorities, Dr. Chan's analysis on contribution would be preferred. Neither doctor had examined the plaintiff at the time and Dr. Tsoi had himself admitted that he did not have any first hand knowledge of the severity of the injury sustained on that occasion.

13. Dr. Chan's assessments of permanent impairment of the whole person and loss of earning capacity were respectively 5% and 10%. Dr. Tsoi gave a similar figure for reduced earning capacity.

14. The plaintiff had also been examined and assessed by occupational therapists whose reports I have perused. In my considered view, their evidence did not take the matter much further. Mrs. Alice Tsang called by the defence doubted the veracity of the plaintiff's complaint of severe wrist pain which she considered had been exaggerated. From various tests performed yielding inconsistent results, she formed an impression that the plaintiff had been deliberately under performing. In short, she concluded that no significant dysfunction was indicated and that limitation in productivity in his existing employment was no greater than 5%. In contrast, Mrs. Shelley Chow's two reports and testimony were more sympathetic. She was the plaintiff's witness. I do not propose to dwell on their differences. Suffice it to observe that there is sufficient material in the medical findings placed before me on which to form a definitive view on the issue of assessment.

Effect of the three distinct injury episodes on quantum

15. Counsel for the defendant placed great store by the percentage of disability properly attributable to each of the three accidents in the opinion of the doctors who have testified in these proceedings. I have previously referred to their opposing views in this regard. Not surprisingly, counsel urged acceptance of Dr. Tsoi's apportionment, which it will be recalled attributed at least one half of the total impairment to the first accident. Summarised, it was the defence initial contention that damages for pain, suffering and loss of amenities should be determined solely upon the extent of impairment occasioned by the 2nd accident, the basis of the present suit. This narrow approach, later modified to permit the first accident to be considered as well but with an appropriate reduction in damages, totally discounted the impact of the third episode of injury on the question of impairment. The plaintiff's consistent position is that all three accidents are relevant when assessing the degree of impairment for which compensation is to be awarded.

16. It has been settled law from the line of authorities since Bourhill v Young [1943] AC 92 that once a wrong is established, the tortfeasor must take the victim as he finds him. The effect of a pre-existing vulnerability or susceptibility to injury of a plaintiff upon quantum was considered in Love v Port of London Authority [1959] 2 Lloyd's Report 541. It was a claim for personal injuries sustained by a lorry driver through negligence of the defendants' employees. The material portion of the judgment of Edmund Davies J upon which the plaintiff placed great reliance for his contention that the badminton accident and its effect on current impairment ought to be reflected in the final award, follows:

"To return to the plaintiff's condition from the accident up to to-day , one has to remember, of course, that the defendants must take the plaintiff as they find him, that is to say, with his already vulnerable personality. Accordingly, as far as special damages are concerned, (a) if, although a degree of neurosis because of the heart condition alone would have persisted and probably progressed even had there been no accident, such neurosis would not have prevented the plaintiff from working, and, (b) if the plaintiff's failure to work is attributable at least in part to neurosis caused by the accident, meaning thereby that but for his neurosis there would have been no absence from work, the plaintiff is entitled to be compensated in full for financial losses flowing from such absence, even though there was an accompaniment of heart disease, and neurosis caused thereby. For example, and taking Dr. Edwards's rough percentages, if what we may call the 70 per cent. heart neurosis would not have prevented the plaintiff working; but the addition of the 30 per cent. accident neurosis produced total incapacity, the defendants have to recompense the plaintiff for all special damages arising form the 100 per cent. neurosis which developed from these two causes. Conversely where the interruption in work would have occurred in any event, being caused by the progress of and crisis in the heart condition which has nothing to do with the accident, no special damages are recoverable" (at p. 545)

17. This eminently sensible approach was followed in Malcolm v Broadhurst [1970] 3 All E R 508. Geoffrey Lane J stated at p. 511 e-f of the judgment:

"The defendant must take the wife as he finds her and there is no difference in principle between an egg-shell skull and an egg-shell personality, Love v Port of London Authority. Exacerbation of her nervous depression was a readily foreseeable consequence of injuring her. Does the fact that it was caused, or caused to continue, by reaction to the husband's pathological bad-temper (itself the result of the defendant's negligence) put a stop to the defendant's liability? I think not. Once damage of a particular kind, in this case psychological, can be foreseen as here it could, the fact that it arises or is continued by reason of an unusual complex of events does not avail the defendant, Hughes v Lord Advocate. Moreover, it is not beyond the range of reasonable anticipation to foresee that if one does severe injury to husband and wife, when the wife is temperamentally unstable, her instability may be adversely affected by the injury done to the husband."

18. In determining the pertinence of the first and third accidents to the question of proper recompense in this case, it is as well to remember that causation is an issue solely for the tribunal seized of the matter rather than for doctors. To this extent, the apportionment of the percentage of impairment to each of the three accidents as offered by Drs. Tsoi and Chan, instructive and interesting though they may well be, is not entirely helpful. On the other hand, the observation of Hunter J in Lee Kin Kai v Ocean Tramping Co. Ltd. [1991] 2 HKLR 232 at p. 235 and 236 is directly in point. He said:

" ....In law there is sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. It is sufficient; it need not be shown to be the sole cause......

Thirdly, a judge when considering causation is not only entitled, he is bound, to use his common sense, to approach the question in the same a way as a juror."

19. In the instant case, I am duty bound to conclude that all three episodes of injury must be taken into account in assessing the true extent of the plaintiff's impairment for which he is to justly compensated. With his predisposition to injury following his badminton mishap, the 2nd accident at work consequently had a greater impact on his ability to perform his duties as artisan and on his enjoyment of amenities in general than would otherwise have been the case. The 2nd injury increased his vulnerability to further injury, a reasonably foreseeable consequence of the defendant's negligence as the occurrence of the 3rd accident has amply illustrated. For this reason, a determination of the award for pain, suffering and loss of amenities would necessarily encompass the total impairment suffered by the plaintiff as disclosed on the medical evidence.

Pain, suffering and loss of amenities

20. A number of decisions on quantum under this head have been referred to. No cases are by the nature of things on all four with the present circumstances. These authorities included Leung On v Chan Pui Ki [1996] 2 HKLR 401, Chung Hok Sung v Li Kam Ming & anr, PI No. 393 of 1995, Lee Wong Sin v Wong Shek Mei & ors, PI No. 769 of 1995, Chan Chung Lop v Chan Yun Sun [1999] 3 HKLRD 442, Yan Fai Wah v Kong Seung Chuen & anr, PI No. 664 of 1998, and Ching Kam v Au Wing Keung & anr, PI 765 of 1995.

21. The plaintiff's injury falls below the "serious injury" category in my view. That he has suffered a painful injury with a degree of residual impairment is accepted. Active though the plaintiff has been in the pursuit of leisure and recreational activities, as previously mentioned, his lifestyle has not been so materially affected as might have been painted. Badminton a sport he was particularly partial to and which he can no longer play is but one of many activities available to him. I cannot see why he cannot continue to hike and go camping, swim and do other equally gratifying things in his free time. In my considered view, an award of $300,000 would be appropriate. I so order.

Loss of earning capacity

22. Whilst it is plainly true that following his 2nd injury the plaintiff's ability to perform tasks normally assigned to his posting has somewhat been curtailed leading to the comment (as agreed) from the deputy head of his department that he was "not as good as that of other artisans". It is also accepted that he had been given lighter duties after reporting back to work. As previously noted, certain levels and types of work activities are no longer within his capacity to perform. To that extent, it would not be amiss to conclude that his competitive edge has been eroded should he ever find himself on the open market competing with able-bodied artisans.

23. In dealing with this head of claim, two English decisions offer guidance on the approach to be adopted. The leading case is Moeliker v A. Reyrolle & Co. Ltd [1976] I.C.R. 253. Browne LJ succinctly set out the relevant factors to be addressed in these terms:

". . . what has somehow to be quantified in assessing damages under this head is the present value of the risk that a plaintiff will at some future time suffer financial damage because of his disadvantage in the labour market . . . When the plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk that he will at some time before the end of his working life lose that job and be thrown on the labour market? I think the question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful' risk (see Davies v Taylor) per Lord Reid and Lord Simon of Glaisdale. Lord Scarman in Smith's case referred to a 'real' risk, which I think is the same test. In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases. For example, the nature and prospects of the employers' business; the plaintiff's age and qualifications; his length of service; his remaining length of working life; the nature of his disabilities; and any undertaking or statement by his employers as to his future employment. If the court comes to the conclusion that there is no 'substantial' or 'real' risk of the plaintiff losing his present job in the rest of his working life, no damages will be recoverable under this head.

But if the court decides that there is a risk which is 'substantial' or 'real', the court has somehow to assess this risk and quantify it in damages. Difficult as this is, the courts sometimes have to assess the money value of a chance in other contests . . .Clearly no mathematical calculation is possible. Lord Justice Edmund-Davies (as he then was) and Lord Justice Scarman said in Smith v Manchester Corporation that the multiplier/multiplicand approach was impossible or 'inappropriate', but I do not think that they meant that the court should have no regard to the amount of earnings which a plaintiff may lose in the future, nor to the period during which he may lose them. What I think they meant was that the multiplier/multiplicand method cannot provide a complete answer to this problem because of the many uncertainties involved. The court must start somewhere, and I think the starting point should be the amount which a plaintiff is earning at the time of the trial and an estimate of the rest of his working life."

24. Lord Justice Brown revisited the phrase 'substantial' or 'real' risk in Wren v North Eastern Electricity Board, 1978 C.A. No. 793 unreported, ruling on appeal "that the judge in this case was perfectly entitled to take the view he did, that there was a real risk, even though he described it as a 'slight' risk."

25. The evidence disclosed that the plaintiff has been working for the University since April 1993. Aged 28 at trial, he has about one half of his normal working life left. Employment with the defendant seems reasonably secure or as secure as one can expect. The University not being a commercial enterprise is not subject to the vagaries of market-driven forces. In contrast, lay-offs in financial downturns are not uncommon in the business sector. That is not to say that budget constraints and cost-cutting do not affect tertiary institutions, as they can and have from experience. In this connection, Dr. Kwan from the defendant commented that in his 10 odd years with the university, he had not encountered any plan to terminate staff. Regarding budget cut on staffing level, he fairly conceded that it was a matter within the province of his seniors. That said, he offered that artisans would not be prime candidates for termination in a cost-cutting exercise in view of their relatively low salaries.

26. As noted, the plaintiff has been kept in employment by a sympathetic and understanding employer despite his disability and inability in discharging certain manual tasks. The duties of an artisan encompass such activities as machining, mixing and pouring of concrete, painting as well as laboratory and field tests, with the main work being operation and testing of equipment that Dr. Kwan described as light duties. In his statement he remarked that "there will be a remote chance for the Plaintiff to lose his job only because of the disabilities, if any, caused by his injury". He obviously did not consider that the chance was likely to occur as he went on to say that he did not consider that the plaintiff's promotion prospect has been adversely affected by his injury. As the defendant has given and will continue to offer him indulgence by assignment of lighter duties, I do not consider that the risk of being let go (which necessarily comes with any employment) is either real or substantial in this case. This is so despite the fact that the university has not gone on record to commit itself to employing the plaintiff indefinitely. It follows that this head of claim is incompetent and must be dismissed.

Loss of chance of promotion

27. At the time of the accident in question, the plaintiff had reached the top of the salary pay scale for artisan, namely point 8. The next grade with promotion is senior artisan which carries two incremental points of MPS 9 and 10.

28. Counsel for the plaintiff submitted that but for the accident, it was likely that the plaintiff would have been promoted to senior artisan earning $15,160 by the time of the trial. This view, however, runs counter to the evidence of Dr. Kwan that there had been no opening at senior artisan level since 1996 and none would be available in light of the department's requirements. The plaintiff did not participate in the promotion exercise in 1996 not because he had been unaware of it. At present, 6 artisans in total, 3 being senior artisans are all that can be accommodated, given the work level in the department. Dr. Kwan considered that the plaintiff's promotion prospect had not been compromised by the accident, but he also admitted that candidates for elevation would be assessed on their ability to perform heavy duty work, and on their working attitude, diligence, craftsmanship and effectiveness. An inability to undertake heavy manual work must invariably be a factor working against the plaintiff, however sympathetic the defendant continues to be in the assignment of duties. In my considered judgment, the plaintiff's chance of future promotion on any view must be less optimistic on account of his disability. Recompense in monetary terms must follow. How then are damages to be assessed?

29. That damages for loss of opportunity are recoverable on the authorities such as Mulvaine v Joseph [1968] 112 S.J. 927 and Chaplin v Hicks [1911] 2 KB 788 is patent. In Mulvaine, supra, an award of L1,000 sterling was made against the taxi driver and owner to a professional golfer for loss of opportunity of competing in tournaments, the ensuing loss of experience and prestige which might have resulted in him becoming a tournament professional in America and loss of a chance of winning prize money. As observed in that case, the figure was bound to be speculative. I do not consider that the multiplier/multiplicand approach suggested by the plaintiff is the correct approach in this case as there are too many contingencies not presently quantifiable, such as when another senior artisan vacancy would become available. That may not occur for some considerable time. Openings are dependent upon retirement, dismissal, or resignation of present incumbents and possibly even on increased staffing requirements of the department. These are all speculative considerations. To suggest adoption of a multiplier of 16 as urged by the plaintiff or any other multiplicand would be plainly wrong as that would entail an assumption that loss has occurred that can be readily quantified. That is far from so. I propose to award a lump sum. In the circumstances, an award of $100,000 would be about right, and I so order.

Agreed specials

30. These concern medical and travelling expenses and special nourishment, totalling $5,644

Summary of awards

1. PSLA	$300,000
2. Loss of promotion	$100,000
3. Specials	$5,644
4. Less ECC award	$70,224
Total damages	$335,420

31. There shall be interest at 2% p.a. from the date of the writ on general damages and at half judgment rate on specials from the date of the accident to to-day and thereafter at judgment rate until full payment. The plaintiff shall have his costs of the assessment, taxed if not agreed and his own costs are to be taxed in accordance with the Legal Aid Regulations. The order for costs is nisi and the parties have 21 days from to-day to seek other costs orders if so advised. There shall be certificate for counsel.