WAN MAN KIT v. POON CHI MAN

HCPI 393/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 393 OF 1999

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J U D G M E N T

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Consent judgment on liability

1. By Order dated16 March 2000, Seagroatt J. ordered that judgment on liability be entered for the plaintiff against the defendant with damages to be assessed and with costs to be taxed if not agreed, and that the plaintiff's solicitors were to notify the Court in writing by letter by 1 May 2000 whether or not the assessment of damages could be made in December 2000. Subsequent to that Order, the assessment of damages was listed for hearing on 5 June 2000.

Plaintiff's personal background

2. The Plaintiff was 20 at the time of the accident in the early hours of 3 November 1997 and is now 22. After completing her form five schooling in 1995, she worked as a salesgirl for Winera Limited from 27 September 1995 to 11 December 1996. She took time off and went to the United States from December 1996 to March 1997. From 1 March 1997 to 31 August 1997, she worked as a senior salesgirl for Winera. In August, she started taking a graphic design course and continued with it until the time of the accident. After finishing her course in the morning, she worked for Soul as a salesgirl from 1 pm to 10 pm. Her employment with Soul commenced on 22 September 1997 and terminated on about the date of the accident. The defendant accepted that the plaintiff had been granted sick leave from 3 November 1997 to 2 December 1998 and from 2 February 1999 to 14 September 1999. She started work on 1 February 1999 because of financial difficulties. From 1 February 1999 to 30 September 1999 she was employed as a "technician" or sales assistant by Prescription Plus clinical skin care operated by Horspath Limited. She was promoted to trainee consultant as from 1 October 1999. She has been working at the product centre at Pacific Place throughout until 12 June 2000 when she would move to the product centre at Festival Walk.

Injury

3. She suffered fracture of right acetabulum. She was conscious, hemodynamically stable and had right hip tenderness. Because of excessive bleeding on the first occasion, she underwent 2 operations of open reduction and plating on 10 and 17 November 1997.

4. She was transferred from the United Christian Hospital to the Margaret Trench Medical Rehabilitation Centre on 26 January 1998 where she was trained with walking, joint mobilization exercise and strengthening exercise and received a three month course of treatment.

5. From mid-February 1998 to mid-April 1998, she received 35 sessions of out-patient physiotherapy treatment at the Centre. From 15 May 1998 she has been receiving continuing follow-up treatment at the Hospital and the next (the 12th) consultation is scheduled to take place on 27 June 2000.

6. She consulted Dr Lau Hoi Kuen on 24 December 1998 and on 20 March 2000.

7. At the request of the defendant's legal advisers, the plaintiff was examined by Dr Chun Siu Yeung on 14 December 1999 and attended a bone scan by Dr David W Yeung at the Hong Kong Sanatorium & Hospital on 5 June 2000, i.e. the first day of the assessment of damages.

8. There are 4 scars. The first is a 27-cm surgical scar from right anterior iliac crest extending distally and medially to the supra-pubic region, of about 0.4 cm wide, of darker pigmentation and slightly raised. There is another surgical scar curving downwards from lateral right gluteal region down the upper right thigh of 24 cm long and 1 cm wide, of dark pigmentation, mildly indurated, hypertrophic, with no crack or abrasion. There are small laceration scars on anterior right knee, not raised. Lastly, there are two pin tract scars on upper right leg.

9. The ranges of movement of her right hip (as compared with those of the left) are flexion 90 degrees (105 degrees); extension 15 (20); abduction 25 (40); abduction 25 (45); internal rotation 25 (35); and external rotation 15 (40). The leg lengths are equal for both legs, but her right thigh girth is 1 cm less and her right calf girth is 0.5 cm less.

10. Her permanent disability is 13% and her loss of earning capacity is 25%. These figures are expected to get worse in time.

11. She is still taking medication on a daily basis. She cannot run. After an hour or more of standing or walking, she feels pain in her right hip. I do not accept that the same is true for sitting. She had difficulty going up or down stairs or slopes or squatting. She has to sit down to take a shower and has difficulty putting on her socks or cutting her toe nails. Lying on her right side, whether during her sleep or in the course of other activities causes discomfort and sometimes pain. She has to curtail her social activities such as disco dancing, hiking, playing tennis, and shopping. She has to be careful with her weight and with her right hip movements in her activities, sexual or otherwise. She is apprehensive about travelling in a private car, taxi or public light bus and about wearing swim suits or short skirts or pants. Child bearing, to the extent of increased weight bearing, will bring increasing discomfort and pain.

Avascular necrosis and post-traumatic osteonecrosis

12. Dr Lau opined that the plaintiff had avascular necrosis of the femoral head with segmental sclerosis and collapse under the weight bearing area and estimated the chance of her coming to some form of operative treatment in the next 5 - 10 years at more than 50%. He thought that it was unlikely that repair or attempted repair would succeed.

13. Dr Chun insisted that there was no avascular necrosis. According to Dr Chun, the plaintiff was suffering from post-traumatic osteoarthritis of the right hip joint. In his report dated 14 December 1999, he stated that:

"With persistent exercises and avoidance of excessive stress on the right hip, I expect that her hip symptoms will be under control by conservative measures for about 20 years."

14. In his testimony, he asserted that with modification of activities in relation to the hip, the period was 30 - 40 years, i.e. a 1.5 to 2 fold increase of the 20-year period stated in his own written report.

15. On the question of avascular necrosis, Dr Yeung opined that the plaintiff was at the revascularization phase of avascular necrosis; that apart from a tiny focal area, the rest of the head was quite good and was unlikely to collapse; that in respect of the focal area, as it had not collapsed while it was cold, it was unlikely to collapse; that he had never seen a hot area going cold; and that the healing process was progressing satisfactorily.

16. Dr Yeung warned that the post-traumatic osteonecrosis would do more damage than the avascular necrosis.

17. Dr Yeung was an impressive witness and I accept the whole of his evidence. I find that the plaintiff is now in the revascularization phase of avascular necrosis; that the repairing or healing process is progressing satisfactorily; and that it is not probable that avascular necrosis is or will become a matter of concern to the plaintiff.

Total joint replacement operation and one revisional operation

18. Dr Chun accepted that it was unlikely for the plaintiff's osteoarthritis to be reversed; that it was probable that she would need a total hip replacement; and that if the total replacement should take place within 20 years, there was a more than 50% chance that the plaintiff would need one replacement or revisional operation.

19. Dr Chun did himself little credit by increasing the period during which the total replacement operation might be postponed from 20 years in his written report to 30 - 40 years in his oral testimony. I do not accept that even with "persistent exercises and avoidance of excessive stress on the right hip" or with modification of activities in relation to the hip, it is more probable than not that the operation would be put off for as long as 20 years. In any event, it is in my judgment unreasonable and unreal to require the plaintiff, now aged 22, to lead a disciplined life throughout the next 20 years by performing persistent exercises and avoiding excessive stress on the right hip.

20. On the other hand, I regard Dr Lau's opinion of 5 - 10 years as being too pessimistic. In passing, I note that Dr Lau's statement in this case is that "the condition of her right hip is expected to deteriorate rapidly and progressively in the next few years". In Leung Chun Tung v Siu Wai Cheong, HCPI No. 883 of 1995, 19 December 1997, Cheung J, unreported, 1997 HKC Lexis 1706, his observation was that "we can expect the condition of his left hip to deteriorate progressively and rapidly in the next few years".

21. As the plaintiff is 22, the probabilities are that she will require one total replacement and one revisional operation whether the total replacement should take place within 5 or 20 years from now. I accept the invitation of Miss Cissy Lam, counsel for the plaintiff, to assess damages on the basis of one replacement and one revisional operations.

Substantial injury

22. Mr Patrick Lim, counsel for the defendant, submitted that with one replacement and one revisional operations, the injury falls within the higher end of serious injury category. Miss Lam submitted that the injury falls within the substantial injury category. See Lee Ting-Lam v Leung Kam-Ming [1980] HKLR 657.

23. Leung Chun Tung v Siu Wai Cheong was a case of fractured left ilium and acetabulum with dislocation of left hip. A number of operations had been performed - open reduction of the fractured area, arthroscopy of the left hip, and left ilicar crest plate was removed. There was avascular necrosis of the femoral head resulting in collapse and flattening and advanced degenerative changes had occurred 7 years from the accident. There was 50% permanent disability and 40% loss of earning capacity, expected to increase in the next five years. The plaintiff there would have to undergo at least one primary and one revisional operation. The plaintiff there was an extremely active person. Cheung J awarded $600,000. The plaintiff there was more active but the plaintiff in this action is younger and she may in the course of time be with child. The range of damages for substantial injury as approved by the Court of Appeal in 1996 in Chan Pui-ki v Leung On and another [1996] 2 HKLR 401 was $540,000 - $660,000. In my judgment, the appropriate award in this case for PSLA is $700,000.

Past loss of earnings

24. At the date of the accident, the plaintiff's monthly earnings were $6,000 (salary) + $500 (attendance fee) + $1,110.70 (commission) + $6,000/12 (double pay) = $8,111 (rounded up to the nearest dollar).

25. The notional monthly earnings at the date of trial were $6,800 (salary) + $500 (attendance fee) + 2% x $150,000 (commission at 2% of average monthly sales amount in 1999 and 2000) + $6,800/12 (double pay) = $10,867 (rounded up to the nearest dollar).

26. The median pre-trial monthly earnings were ($8,111 + $10867)/2 = $9,489.

27. Her actual earnings from February 1999 to September 1999 as a technician amounted to $65,533 and from October 1999 to April 2000 as trainee consultant amounted to $71,738 (the average monthly earnings from October 1999 to April 2000 as trainee consultant being $10,248), adding up to $137,271.

28. At median pre-trial monthly earnings of $9,489, her pre-trial income from 3 November 1997 to 5 June 2000 (31 months 2 days) would have been $294,792 (after rounding up to the nearest dollar).

29. With actual earnings of $137,271 for the period from 1 February 1999 to 30 April 2000, and estimated income of $11,956 for the period of 1 month 5 days from 1 May to 5 June 2000 ($10,248 x 1 5/30), her past loss of earnings is $294,792 - $137,271 - $11,956 = $145,565.

Loss of future earnings

30. With notional monthly earnings at the date of trial of $10,867 and average actual monthly earnings at date of trial of $10,248, her loss of future earnings is ($10,867 - $10,248) x 16 (agreed multiplier) x 12 = $118,848.

Cost of future operation, care and therapy and loss of earnings during operation and convalescence

31. The defendant does not dispute the figures of $100,000 as the costs of the total replacement operation; $13,500 for post-operation care and therapy; $150,000 as the costs of the revisional operation; and $27,000 for post-operation care and therapy. These items add up to $290,500.

32. The loss of earnings during the total replacement operation and convalescence and during the revisional operation and convalescence is $10,248 x (3 + 6) = $92,232.

33. The award under this head is $290,500 + $92,232 = $382,732.

34. I reject the plaintiff's evidence that she deteriorated significantly shortly before the assessment. While I accept that some physiotherapy may be reasonable, the number of such treatments is not sufficiently large to make a further separate award under the heading of physiotherapy and I make no award for the plaintiff's claims for physiotherapy before trial and before operation.

Loss of earning capacity

35. In Chan Chi Shing v Tsang Fook Metal Engineering and others, CA, CACV238 of 1999, 21 December 1999, unreported, the Court of Appeal approved awards under this head.

36. The plaintiff's employer's business is likely to be adversely affected by an economic downturn. The average spending of each customer is slightly more than $2,000. That there is virtually no entry barrier for new entrants to work as technician is also a relevant factor.

37. More significantly, the plaintiff's hip condition will only get worse in the course of time.

38. It is probable that that her conditions will deteriorate to such extent that she will have to resign or be dismissed months before the total hip replacement operation.

39. This will happen again months before the revisional operation.

40. She may face the same difficulty during pregnancy.

41. If and when she does lose her present job, and in my judgment, it is probable that she will, she is likely to find it increasingly difficult, if at all possible, to find a new job. She has little or no vocational skill, and with each passing day and year, she will be ageing and deteriorating in health, skin and physical conditions. She will lose touch with her customers, beauty or fashion trend and market conditions. It is probable that getting a new job, whether equally or less well paid, will take many many months, if she should get one at all.

42. In my judgment, Mr Lim's suggestion of about 15 months earnings is far too low.

43. My task is to assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the substantial or real risk that the plaintiff will lose her present job at some time before the estimated end of her working life, having regard to the degree of the risk, the time when it may materialise, and all the circumstances of this case including the plaintiff's chances of getting a job at all , or an equally well paid job. I assess and quantify it at $369,000 which is about 36 months earnings.

Special damages and tonic food

44. Special damages have been agreed at $33,498. There is no evidence on the amount spent on tonic food. I consider Mr Lim's concession of $5,000 to be fair and reasonable and I award this sum.

Claim for provisional damages

45. Having regard to my findings on avascular necrosis and post-traumatic osteonecrosis, I make no award under the plaintiff's further or alternative claim for provisional damages under section 56A of the High Court Ordinance, Cap. 4.

Summary

Judgment

46. I order that judgment in the sum of $1,754,643 be entered for the plaintiff against the defendant, with interest at 2% per annum on $700,000 from 19 April 1999 to the date of judgment and interest at 5.77% per annum on $145,565 and on $38,498 from 3 November 1997 to the date of judgment. I also make an order nisi that the defendant pay the plaintiff costs of the action as from 16 March 2000 and that the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations.

Concluding note

47. I would like to record my thanks to both Miss Lam and Mr Lim for their helpful and able assistance.