CHENG WAI CHUN v. CHAN KWAN YIU & ANOTHER

HCPI 913/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.913 OF 2002

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J U D G M E N T

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1. The plaintiff met with a road accident on 14 April 2000 when she was knocked down by a reversing van owned by the 2nd defendant and driven by the 1st defendant. Judgment was entered by consent in favour of the plaintiff for 95% liability with damages to be assessed. This is the assessment of damages.

2. The plaintiff is a woman born on 21 March 1968. She met with a road accident on 14 April 2000 at which time she was 32 years old. Her age at trial is 36 years.

3. The plaintiff's claims, as set out in her Revised Statement of Damages, are as follows :

Special Damages	$43,932.00
Pre-trial loss of earnings (to December 2003)	$572.000.00
Husband's loss of earnings	$67,671.23
Mother's loss of earnings	$99,600.00
Future medical expenses	$30,000.00
Future loss of earnings : multiplier of 14	$2,184,000.00
PSLA : "substantial injury"	$500,000.00
Cosmetic injury award	$250,000.00
Loss of earning capacity	$120,000.00
Interest on the pre-trial losses
Interest on the PSLA

4. There are two major areas of dispute. The first relates to the plaintiff's injuries. There is no dispute that she suffered injuries to the right ankle. However, she later complained of back pain and it was found on X-rays taken in March 2001 that she had suffered a collapse fracture of the T12 vertebra. The plaintiff's case is that it was caused by the accident and the defendant denies this. The second dispute relates to the economic loss claimed by the plaintiff. At the time of the accident she was working in the family business operated by her husband which was a canteen in Tsuen Wan. She was not paid any formal salary. She claims that she has been unable to work since the accident and that the business has had to employ an extra cashier and an extra waitress to replace her. She also claims that her husband and mother both had to take time off work in the business and so the family lost income as a result of her accident. This the defendant does not accept. Before proceeding to the assessment proper, I will deal with the disputed issues of the back injury and whether the plaintiff can claim the wages of both a cashier and a waitress. The questions of the mother's and husband's loss of earnings, as well as the question of whether the plaintiff continues to be unable to do her pre-accident work, I will also deal with as part of the assessment proper.

5. Factual evidence came from the plaintiff herself, her husband and her mother. The medical evidence was adduced without the makers of the reports being called.

The back injury

6. At the time of the accident the plaintiff was 36 weeks pregnant with her third child. She was taken to the Accident and Emergency Department of Yan Chai Hospital and found to have a 3 cm x 3 cm wide laceration over the lateral side of the right ankle with bone sticking out. X-rays showed a comminuted fracture of the distal right fibia and tibula. She was sent to the Orthopaedics Department of Princess Margaret Hospital where she had an emergency operation for open reduction and internal fixation of the open bimalleolar fracture of the right ankle. She was sent to the obstetric ward for monitoring overnight and then was returned to the orthopaedic ward. On 19 April the ankle wound was treated with a skin graft taken from the inner right thigh. She was discharged on 28 April 2000, and according to a report from the Princess Margaret Hospital she had by then been taught to walk with a walking frame.

7. The plaintiff then went to the Tsuen Wan Adventist Hospital for her delivery. She was seen by an orthopaedic surgeon, Dr Yuen, and was treated by him as an out-patient up to 14 September 2000. She also had physiotherapy and walking exercises. She then went back to the orthopaedic out-patient clinic of Princess Margaret Hospital on 15 September 2000 and the medical report from that hospital shows that she was walking unaided and not complaining of right ankle pain. The fracture had healed satisfactorily. She was referred for pressure therapy for the scar to the right thigh. Ultimately the bone implants were taken out in March 2001.

8. On 10 November 2000, when seen at the out-patient clinic, the plaintiff complained of low back pain. This is the first recorded complaint of back pain after the accident. Local tenderness was found over the left loin. There was no neurological defect. She was sent for physiotherapy for the back pain and subsequent X-ray confirmed a collapse fracture of the T12 vertebra.

9. With regard to the back pain the plaintiff herself says that immediately after the accident, the pain in her ankle was so bad that she did not notice anything wrong with her back. However, she noticed back pain that night in the obstetric ward and told a nurse who gave her hot blankets. She told the doctor about the back pain the next day, but he was focussing on her ankle injury and in any event no X-ray of the back could be taken. The back pain was by then not so bad, probably because she was lying down. She was told how to use a walking frame, but not taught to walk at that stage, because she could not stand up. Before the birth she had severe back pain and had to lie on a board. She was mostly lying down or in a wheelchair until after the baby was born. She was able to put her legs down when the baby was four or five months old. When she wanted to carry the baby, she then felt back pain.

10. The plaintiff said that she had not had any other injury except for that received in the accident, between the date of the accident and November 2000. Now, apart from pain in the ankle which comes on if she has to stand or walk for an hour and itching of the scars, she suffers from weakness and numbness of the left leg, persistent pain in the lower back, and inability to lift heavy objects. In oral evidence, though not in her witness statement, she says that she cannot lift her left hand high; that is on the same side as the back pain.

11. Expert evidence on the plaintiff's orthopaedic injuries comes Dr Lau Hoi Kuen for the plaintiff and Dr Arthur Chiang Si Chung for the defendant. Both are well-known orthopaedic surgeons. In addition to their individual reports they produced a joint report. I will deal with the other aspects later and for the moment will concentrate on the back injury.

12. Both doctors agree that the X-ray films show wedging of the T12 vertebra. Dr Lau considers, from what the X-rays show of narrowing and decrease in lordotic curvature that the plaintiff would have been in significant pain from this injury. Dr Chiang says that low back symptoms are indicated but not necessarily significant pain.

13. Dr Lau says that since the plaintiff had no past history of back injury and no back problems before the accident, the collapse fracture of the vertebra should be related to it. The back pain was probably overshadowed by the ankle pain and helped by bed rest. Only when the back was exposed to more stress was she bothered by increasing pain. Dr Chiang says that although it is possible this cannot be concluded from the X-rays. Compression fractures with loss of vertebral height are painful in the first few weeks, and this would be so even if the plaintiff had ankle pain and was on bed rest. So there is a doubt that the fracture was sustained in the accident. At the same time, he cannot definitely rule it out. Dr Lau adds that to cause the fracture the injury would have to be severe, and unless there is documentation to show a later accident, the wedging has to be due to the accident in April 2000.

14. There is nothing to suggest that the plaintiff suffered any accident between that on 14 April 2000, and the time of the first recorded complaint of back pain in November 2000. She says she had none. I accept that to cause the back injury there would have to be a severe trauma and it seems inherently unlikely that, if she did suffer a severe trauma between April and November 2000, she would not have had treatment for it. There is therefore nothing to explain the back injury, other than the accident on 14 April 2000. The plaintiff's expert says that this accident probably caused the injury; the defendant's expert, while doubting that, cannot rule it out. In all the circumstances it seems to me that the conclusion must be that it is more probable than not that the back injury, along with the ankle injury, was sustained in the accident on 14 April 2000.

Cashier and waitress

15. The plaintiff's husband owns, inter alia, the "Jade Canteen" in Tsuen Wan. The plaintiff says that before her accident she worked there daily from 7 a.m. until 3 p.m. She would start off by preparing the change for the cash register and work as a waitress and cashier when necessary. When the waitress came on duty at 7.30 a.m. she would work as cashier. When the cashier came on duty at 8.30 a.m. the plaintiff would take orders, because it was the busy time. At 9.30 a.m. when things became quieter she would discuss the menu with the cook. About midday the canteen would become busy again and she would go to the cash counter and take telephoned orders for food deliveries. She would then help to pack up the food for delivery until 1 p.m. when she would go back to the cash counter; this was the busy time when the workers came in for lunch. After 2 p.m. she would help in calculating the bills for the food deliveries. For all this work she did not receive any official salary or pay into a mandatory provident fund although her husband informally gave her money.

16. After the accident, according to the plaintiff, she could not work and therefore her husband had to employ another waitress and another cashier. The plaintiff herself never went back to work; she felt that she could not, because of back pain and because she could not lift up her hand very high. Because of the back pain she could not sit for very long; after an hour or two she had to stand up and move around to make it feel better.

17. The plaintiff said that after the accident, her mother had stopped working to help her at home. She had a domestic helper but the latter could not cope with the whole household on her own while the plaintiff was in effect laid up because of the accident. The mother stayed with the plaintiff at home until the end of November 2000 and after that she continued to come in and help the plaintiff for about two years. Her husband also came home and helped her and he took her for medical treatment.

18. The plaintiff's husband, Mr Hui, confirmed that after the accident he had had to recruit an extra cashier and an extra waitress. The jobs could not be mixed up unless the person doing the two jobs was a proprietor. So he had to employ one of each. A new cashier, Leung Mun Yi was taken on to work from 7 a.m. to 3 p.m. and she worked from 15 April 2000 to 31 March 2001. Then the existing cashier, Kwan Lai Mei, who was an old employee and had been working in the canteen before the plaintiff's accident was put on to work 7 a.m. to 3 p.m. instead of, as formerly, 8.30 a.m. to 7 p.m. Three other cashiers were taken on in sequence to work for the 8.30 a.m. to 7 p.m. period, and the most recent one continues to do so. Originally the replacement cashier was paid $25.00 per hour but those taken on later were paid $6,200.00 per month. Two waitresses were taken on, in succession, to do the waitressing work that the plaintiff had been doing; and each of them was paid, and the latest one continues to be paid $25.00 per hour.

19. Mr Hui's own losses are claimed, not in respect of loss of earnings at the Jade Canteen but in respect of leave taken from his other businesses to attend the plaintiff at home and while taking her for treatment at hospital. He says that he was a manager of Golden Canteen Ltd, earning a salary of $260,000.00 per annum. He had two canteens to manage for this company apart from his own Jade Canteen. He had to have the consent of the Board of Directors to take leave, and someone had to be put in to do his work while he was away; so he had to compensate the company from his annual leave entitlement. He claims losses in respect of 95 days' leave.

20. From cross-examination it appears that when Mr Hui took time off to take the plaintiff to hospital he would normally spend about three to four hours on the trip. It is not clear why he had to take a full day off, each time.

21. Mr Hui says that the plaintiff's mother was also employed by him in one Eastma Co. Ltd as a clerk. When the accident happened, the mother decided to help to take care of the plaintiff and so her contract of employment was terminated so that she could help the plaintiff at home.

22. The plaintiff's mother confirms this and says that she lost earnings of $8,300.00 per month until November 2000. From cross-examination it appears that she was mainly engaged in rent collection for the Eastma Co. Ltd but that as part of her duties she went to the Jade Canteen to check the bills. She went there from lunch time to about 5 or 6 p.m. every day. She said that sometimes, if there was no work, the plaintiff herself would leave early; she would not be there at noon when the mother arrived. Very often however the plaintiff did not leave till 3 or 4 p.m. and sometimes she stayed late.

23. So far as the question of employment of a waitress and a cashier to replace the plaintiff is concerned, the defendant argues that the plaintiff cannot, before the accident, have put in the hours she claims. The mother's evidence tends to show that the plaintiff was not always there from 7 a.m. to 3 p.m. Further, it did not appear, until cross-examination of the mother, that she also had a role in the Jade Canteen as a part time cashier. In effect, if a cashier was taken on that would have been to replace the mother. A further uncertainty appears from the profit and loss accounts of the Jade Canteen which show that the difference in staff salaries between the year before and the year after the accident is $31,699.00. If a waitress had been taken on at $25.00 per hour, or about $5,200.00 per month, and a cashier at $6,200.00, the total extra wage bill per month would have been about $11,400.00; so the accounts do not support this claim.

24. Before the cross-examination of the plaintiff's mother it was certainly not apparent that she had been working in the Jade Canteen; even if she was being paid by another company; but that is clearly what was happening. The same cross-examination tends to show that the plaintiff herself was probably working rather more flexible hours than she says. So the real reason for taking on an extra cashier is probably the combined effect of the departure of the plaintiff and her mother. I do not believe that the plaintiff was doing work equivalent to that of a full-time waitress and a full-time cashier. I think that at best she can be regarded as doing half of one job and half of the other. So I would allow loss of earnings of $5,700.00 per month in respect of her absence from the canteen after the accident.

25. I turn to the assessment proper and will commence with the claim for pain, suffering and loss of amenity. In the Revised Statement of Damages the plaintiff seeks $500,000.00 for the orthopaedic injuries plus $250,000.00 for the cosmetic injury. In argument however counsel says that a global award is proper. This is the position also taken by the defendant, although the parties' figures differ. In the circumstances there is no need for me to consider the case law as to the appropriateness of separate awards as against a global award; I will make the latter.

26. As I have indicated I am satisfied that the plaintiff's back injury was caused by the accident. So she has to be compensated for the ankle injury, the back injury and the cosmetic injury. So far as the ankle injury is concerned, the pain and suffering at the outset seems to have been considerable. It was aggravated by the fact that, because the plaintiff was heavily pregnant, she could not be properly anaesthetised during the emergency operation to reduce the fractures. She says that she was only "half numb". She was confined to bed for some time; even after the birth of the child. She claims to have suffered from anxiety, depression and concern over the well-being of the fetus and I accept that. Then she had to have a further operation to remove the metal implants on 8 March 2001.

27. Looking however at the joint medical report it is clear that the plaintiff has now recovered well from the ankle injury. There is no need for her to worry about avascular necrosis of the talus or accelerated degenerative arthritis of the ankle. The implants are out and no further operations are needed. The scarring of course remains.

28. The experts, while disagreeing somewhat on the objective reasons for the continuing back problems of which the plaintiff complains, are agreed that there is a 10% permanent impairment of the whole person in respect of the back injury and a 2% permanent impairment in respect of the ankle injury. They both agree that she could go back to her pre-accident employment as cashier and waitress. Dr Lau says that she will suffer a significant loss of earning capacity; Dr Chiang says that the reduction in capacity should be mild.

29. Neither doctor says anything about the plaintiff's complaint of being unable to lift her arm properly and of being unable, because of that, to work as a cashier or waitress. I have some doubts about this complaint. If it were genuine it would surely have been mentioned to the doctors.

30. So far as the cosmetic injury is concerned, the plaintiff has a nasty scar on the right ankle and another one at the site on her inner thigh, from which the skin was taken for grafting. She complains of continuing discomfort from both of them and of being embarrassed by them; she says she cannot now wear a skirt and high-heeled shoes, and that when she swims, which she does often for the sake of relieving the discomfort in her back, she always takes care to cover up her thigh when coming out of the pool. She does not, now, like to go to the beach.

31. Dr Hsieh saw the plaintiff in October 2001 and assessed her as having a 10% cosmetic deformity disability. He suggested an operation for the ankle scar, at a cost of $80,000.00 with one or two minor revision procedures which would cost another $40,000.00. For the thigh scar he suggested intradermal steroid injections which should produce an acceptable result in about five years. Dr Nicholson, instructed by the defendant saw the plaintiff more recently, in July 2003. He assesses her permanent cosmetic disability at 4% and says that the scars have improved considerably since Dr Hsieh saw her. He agrees that the thigh scar could be treated with injections. As for the ankle scar he says that it could be treated by excision of the skin graft but this would leave a noticeable scar with only 20 to 30% improvement. The cost would be about $33,000.00. He also notes that when she came for examination she wore trousers and sandals which exposed the scar and that on a surveillance videotape taken in June and July 2001 she was shown walking in public in a dress and shoes that fully exposed her ankle scars.

32. I can sympathise with the plaintiff's feelings about her scars because she is a young woman and would obviously not want to be restricted in her choice of dress, whether in normal circumstances or when going swimming and the like, because of her scars. I do not think that the fact that she sometimes wears clothes which will expose the scars necessarily means that she is not embarrassed. She explained that when seen on the videotape she was just taking her child to her sister-in-law's flat in the next block and I do not think that going out casually for a short distance like that is particularly significant.

33. The plaintiff's injuries come within the "serious injury" category. Counsel for the plaintiff says that the overall award should be at least $750,000.00. Counsel for the defendant, relying on various cases, says that it should be no more than $400,000.00 including the back injury. In particular, she refers to Siu Kwai Hung v. National Fortune Investment Ltd & Anor, HCPI 577 of 1995 where an award of $235,00.00 was given for heel and back injuries; this would be equivalent to about $400,000.00 in today's money. Various cases on ankle fractures are referred to, in particular Chan Ming v. Wayfine Investment Ltd, HCPI 148 of 1997 and Hau Kit Ho v. Starway International Development Ltd, DCPI 329 of 2002 in which awards of $200,000.00 were made for fairly comparable ankle injuries. For permanent scarring Leung Yuk Kwan v. Maple Professional Beauty Centre Ltd [2003] 1 HKLRD A17 is referred to. I think the scarring is not so bad here.

34. Looking at the plaintiff's position overall and taking into account the factors I have set out above I think a proper global award to cover the ankle injuries and scarring together with the back injury is $600,000.00 and that will be awarded.

Loss of earnings

35. Both the medical experts agree that the plaintiff is able to go back to work as a cashier and waitress, and that a reasonable period of sick leave would have been 18 months. She however believes that she could not go back to work because of her back problems and her difficulty in raising her arm. On the latter there is no medical evidence and I do not see why, if she needs to get up and move about every so often, that would make it impossible for her to work as a cashier. Given that the plaintiff now has a fourth child, since the one with which she was pregnant when the accident happened, and given that there is no real support for her evidence of inability to lift her arm, it seems likely that her staying off work is a matter of choice. So I do not accept that she is entitled to continuing loss of earnings.

36. The plaintiff will be awarded pre-trial loss of earnings for 18 months, at the figure given above of $5,700.00 which will amount to $102,600.00. MPF needs to be added at 5% so the final figure is $107,730.00.

Husband's loss of earnings

37. On the evidence I do not see how the husband can justify a full day off, every time the plaintiff had to be taken for out-patient treatment. The defendant agrees a figure of $23,110.40 on the basis of 15 days while the wife was in hospital and half a day for out-patient visits. I consider that this is the proper basis and will allow that figure.

Mother's loss of earnings

38. I accept that the mother left her job to look after the plaintiff, and that this was necessary given the state of the plaintiff and her family responsibilities. The alternative would have been to hire more domestic help. The evidence is that she had to stay with the plaintiff until the end of November 2000 and she says that she went back daily thereafter, and overall she looked after the plaintiff for about two years. I doubt, however, that the mother's presence was really necessary for the period of 12 months claimed. I will allow nine months at $8,300.00 which amounts to $74,700.00.

Special damages

39. Some of the figures for medical expenses are agreed. Those which remain in dispute relate to the back injury and since I have found that it resulted from the accident, they will be allowed. Insofar as travelling expenses are not agreed, the defendant says the plaintiff should have taken public transport to go for out-patient treatment, instead of being taken by the husband in his car. It seems to me perfectly reasonable to take the car if one has a car. The alternative is a taxi. There is no reason why a sick woman should take the bus. I will allow these expenses as claimed. Medical equipment and daily items are agreed. Under the head of "other expenses" the plaintiff seeks compensation for her monthly swimming pass up to date, i.e. 33 months ($6,600.00 against $5,400.00 originally claimed), plus a further 12 months at $2,400.00. I accept that she does go swimming and both experts agree that it is good for her back so I will allow this. The total figure claimed is allowed plus the extra for the swimming pass; so the final revised figure is $47,532.00.

Future medical expenses

40. The figure claimed under this head is $30,000.00. The orthopaedic experts agree that the plaintiff should have physiotherapy at a cost of $10,000.00. Dr Hsieh recommends surgery on the scar at $80,000.00; Dr Nicholson does not think it would help much. In any event the plaintiff does not seem to want surgery; she says she is scared of it. I do not think this can be allowed especially considering that it is not pleaded and I have made substantial allowance for the scarring in the PSLA. Both dermatologists agree, Dr Nicholson somewhat reluctantly, that injections would help the thigh scarring though there is some dispute over the extent of follow-up needed. In the circumstances I will allow the figure of $30,000.00 originally claimed.

Loss of earning capacity

41. Dr Lau says that if the plaintiff did go back to work she would suffer a loss of earning capacity of about 15%. Dr Chiang says that the reduction in her capacity to work would likely be of a mild degree. Assessing permanent physical disability and loss of earning capacity in percentage terms has been held to be of little assistance to the court; see Li Wan Choi v. Choi Wan Hing & Anor [2000] 4 HKC 549. It is difficult to say what this sort of figure means in the context of loss of earning capacity which depends on a finding that the plaintiff suffers or is likely to suffer a financial disadvantage in the employment market in future.

42. The plaintiff has not gone back to work. If she had to seek work in the open labour market it is difficult to say what disadvantage she might suffer. However I think it must be accepted that she would suffer at least a mild degree of incapacity and this would be bound to have some effect on her employability, though probably a small effect. At best she can be allowed a figure roughly equivalent to six month's earnings; say $33,000.00.

Total award

43. The damages are assessed as shown below. Since the judgment is for 95% liability, the adjusted figures are shown in the third column.

	95%	100%
Special Damages	$47,532.00	$45,155.40
Pre-trial loss of earnings	$107,730.00	$102,343.50
Husband's loss of earnings	$23,110.40	$21,954.88
Mother's loss of earnings	$74,700.00	$70,965.00
Future medical expenses	$30,000.00	$28,500.00
PSLA:	$600,000.00	$570,000.00
Loss of earning capacity	$33,000.00	$31,350.00
Total		$870,268.78

Judgment

44. There will be a final judgment in favour of the plaintiff for $870,268.78 with interest at 2% on the figure of $570,000.00 for pain, suffering and loss or amenity from the date of the Writ and on the special damages and loss of earnings (including those of the husband and mother) at half the judgment rate from the date of the accident, and costs (from the date of the interlocutory judgment) to be taxed if not agreed. Since the judgment is to be handed down the costs order will be nisi.