WONG YI MAN v. YEUNG HEI MAN

HCPI 364/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 364 OF 2011

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ASSESSMENT OF DAMAGES

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1.  This is a personal injury claim. Judgment has been entered on 15 November 2011 after default of Defence and the case has now come to this court for damages assessment.

I.  Background

2.  The plaintiff suffered a fracture of her left knee joint in a wakeboarding accident on 8 July 2008. She was 24 years old and working as a hair stylist at the time.

3.  She had severe injuries :- fractured lateral tibial plateau of left knee with depression and displacement, comminuted fracture of proximal fibula, and medial collateral ligament injury. Her recovery was unfortunately complicated by wound infection, arthrofibrosis of the knee joint and supracondylar fracture of left femur. All were known complications for such injuries and remedial surgeries.

4.  The plaintiff had since undergone a series of 7 operations (including open reduction and internal fixation, arthroscopic medial ligament repair, manipulation under anaesthesia and arthroscopic release) as well as intensive physiotherapy sessions.

5.  Despite all the treatment, her recovery progress was slow.  The plaintiff currently still has obvious swelling, effusion and residual inflammation in her left knee.  Functionally, she still has medial ligament instability, left knee and hip gross stiffness, weakness and instability, and she walks with a limp.  There is left thigh and calf muscle wasting due to disuse.  Cosmetically, there are several long unsightly scars and spot scars on the left leg.

6.  Two further operations are planned for next year due to her persisting joint stiffness.

7.  Further, Dr Tsoi Chi Wah Danny, the expert Orthopaedic surgeon, opined that she would likely require a total knee replacement by the age of 60 because her injury unfortunately involved the knee joint.

8.  Cosmetically, Dr Otto Au, the expert in Plastic Surgery, opined that her scars could not be improved by any surgery. However, laser treatment might improve the texture and colour of the scars, and fat injection might improve the depressions in the knee.

II.  Pain, suffering and loss of amenities (“PSLA”)

9.  The plaintiff claims HK$700,000 under this head.

10.  Mr Lin, Counsel for the plaintiff, has provided this court with various precedents, eg Lo Wai Yin v Li Chun Kou HCPI 26 of 2006, Wong Tsan Ming v Hop Lee Frozen Meat Co. Limited HCPI 73 of 2007, Lai Chi Ming v Ng Pak Chuen HCPI 1085 of 1999.  The PSLA awards in these cases ranged from HK$500,000 to 600,000.

11.  Although the injuries in these cases all concerned with fracture in the lower body: eg pelvic bone or bones in the leg, they are less substantial than the current case, both in terms of the severity of the initial injury, extent of remedial surgeries required, and long term disability.  For example, in none of these cases did the plaintiff require 9 or more remedial operations.

12.  Therefore, I think HK$700,000 is reasonable under this head of claim and I would award this sum.

III.  Pre-trial loss of earnings and MPF

13.  During the hearing, I have assessed the nature of the plaintiff’s work history in detail.  Clearly, as a hair stylist, the plaintiff was in a highly competitive profession.

14.  At the relevant time, the plaintiff’s aim had been to accumulate enough clients so that she could become a “freelance” hair stylist.  This would have enabled her to work in various hair salons with more favourable terms like a bigger share of the profit.

15.  After the accident, despite the fact that she was still on sick leave, and despite her disabilities and ongoing physiotherapy treatment, she returned to work in February 2009 in order to serve and, hopefully, retain her existing clients.

16.  However, the plaintiff’s injury had affected her endurance at work.  Perhaps more importantly, she had to be on sick leave frequently due to ongoing physiotherapy treatment and surgical procedures.  As such, she could not retain her client base.

17.  From then on until around February 2011, the plaintiff was struggling between several jobs, alternating between being employed as a full time hair stylist at various salons (stable but lower income) and coming out as a “freelance” stylist (unstable but with prospect of higher income).

18.  Despite her dream to become a hair stylist, she eventually gave this up and, after several changes of jobs, became a clinical beautician.  She still had difficulties trying to find a suitable job.  She is currently still looking but the prospect of another operation early next year meant that she would not be able to find any long term job at this stage.

19.  Based on the above, I accept that the plaintiff had been diligently trying to pursue her career which was hampered by her injuries. She had been earning around HK$12,000 per month at the time of the accident.  But for her injuries, she may have a prospect of earning up to HK$20,000 per month. Instead, during the pre-trial period of some 5 years, she earned a total of HK$306,244.69.

20.  I think a reasonable average of her pre-trial earnings would be around HK$15,000 per month.  Her pre-trial loss of earnings and MPF (from 8 July 2008 to 18 September 2013) should be HK$(15,000 x 62.3 months x 1.05) – 306,244.69 = HK$674,980.31.

IV.  Future loss of earnings and MPF

21.  It is difficult, if not impossible, to quantify exactly how this injury has affected the plaintiff’s future career in view of her need for further operations and the unpredictable nature of recovery.

22.  However, I think that a reasonable estimation would be that the plaintiff would sustain a 20% loss of earnings, or around HK$4,000 per month, in the future due to her injury.

23.  In applying the multiplier in Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1 and on the assumption of retirement at age 65, her loss of future earnings and MPF should be: HK$(4,000 x 12 months x 23.65 x 1.05) = HK$1,191,960.00.

V.  Loss of earning capacity

24.  It is clear that the plaintiff will be at a disadvantage in the labour market, especially if she wished to be in the beauty industry with her long term disability both physically and cosmetically.  I would therefore award a global sum of HK$80,000 under this head.

VI.  Future Medical Expenses

25.  Based on Dr Tsoi’s opinion, I would award HK$180,000 for the costs of the likely future total knee replacement.

26.  Based on Dr Au’s opinion, I would award HK$84,000 for future cosmetic procedures (HK$50,000 for 10 sessions of laser treatment and HK$34,000 for fat injection procedure and follow-up consultations).

27.  The plaintiff has also claimed for loss of earnings for the expected period for convalescence from her future surgical procedures under this head of claim. However, the award I have allowed under “loss of future earnings and MPF” has already taken into account, as best estimation, the impact of future procedures on her future earnings so I would not allow a separate claim under this head.

VII. Special damages

28.  I would award reimbursement of HK$32,816 for medical expenses, HK$10,000 for tonic food and various “health” products/equipment and HK$2,500 for travelling expenses.

VIII.  Interest

29.  Interest should be calculated as follows: -

(a) Interest on PSLA at the rate of 2% per annum from the date of the Writ to the date of Judgment;

(b) Interest on pre-trial loss of earnings and MPF and special damages at half judgment rate from the date of the accident to the date of Judgment.

IX.  Summary

30.  I summarise the above awards as follows:

	HK$
PSLA	700,000
Pre-trial loss of earnings and MPF	674,980.31
Future loss of earnings and MPF	1,191,960.00
Loss of earning capacity Future medical expenses	80,000 264,000
Special damages	45,316
Total:	2,956,256.31

31.  The total claim should therefore be HK$2,956,256.31 plus interest as calculated above.

X.  Cost

32.  The defendant shall pay the plaintiff’s costs of this action to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.