SO CHUNG KWONG v. NG MING FONG

HCPI 527/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 527 OF 1998

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J U D G M E N T

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1. This is a claim for damages arising out of injuries suffered by the plaintiff in an accident on 18 February 1989.

Background

2. The plaintiff is called So Chung Kwong ("Mr So"). He was born in Canton in 1949. Having left school at the age of 16 he worked as a farmer before coming to Hong Kong at the age of 24, in 1973. In 1976 he married, and there are two children of the family, born in 1977 and 1981. They have for a number of years lived in a public housing estate in Shatin.

3. After coming to Hong Kong Mr So began working as a carpenter. He received no formal training, acquiring his skills by imitation and practice. He worked on a casual basis, that is making himself available in the workforce for hire at the daily rate applicable for carpenters. For two years up to February 1989 he was employed by Cheung Hop Decoration and Furniture Shop ("Cheung Hop"). By that date his daily wage was $320.00. At this time he was averaging 30 days work per month; almost without rest because the company was very busy and he made himself available for all the overtime which was offered.

4. On 18 February 1989 Mr So was involved in an accident giving rise to these proceedings. He had left home and was on his way to work. He was in the process of crossing Hung Mui Kok Road on foot when he was struck by a motorcycle being ridden by the defendant called Ng Ming Fong ("Mr Ng"). On his account he was hit from behind and pitched forward, partially breaking his fall by stretching out his hands. He was taken by ambulance to Prince of Wales Hospital where he was examined and found to have broken the scaphoid bone in his left hand as well as suffering minor abrasions. His hand was put in plaster and he was discharged but with follow up treatment for 12 weeks and thereafter therapy for another 6 months. But pain and lack of mobility persisted in his left wrist, right palm and right ankle, and he was given sick leave until March 1991. He returned to work in July 1991 but not as a carpenter and not full time. Up to July 1992 he worked on average 15 to 20 days per month as a watchman or cleaner earning up to $200.00 per day, the going rate for such menial activity. Only once, for 20 days in March 1992, did he work as a carpenter, earning the then going rate for carpenters of $480.00 per day. In July 1992, on the first day of more work as a carpenter expected to last for about a month, he suffered another accident not related to these proceedings. That has effectively put paid to his ever working again as a carpenter. Now he is employed on average 15 to 20 days per month as a painter or similar, and expects that to continue until his retirement at 60 in about 10 years time.

The claim

5. Mr So pleaded that the accident was solely caused by the negligence of Mr Ng, and sues him for compensation for the resultant pain, suffering and loss of amenities, past and future loss of income and reimbursement of medical and other expenses he has incurred.

The defence

6. Mr Ng denied liability, pleading that the accident was solely caused by Mr So's own negligence.

The issues

7. The matter came to trial before me on 27 May 1999, during the course of which the parties agreed on the issue of liability that judgment should be in favour of Mr So, subject to a contribution by him of 25%. I gave judgment accordingly.

8. What remained contentious was the extent to which Mr So was injured in the accident and the financial loss he has suffered as a direct result. It is his claim that he suffered not only the obvious physical injuries diagnosed at the outset but, much more seriously, injury to the brain, resulting in an affliction called organic personality disorder. This has resulted in a dramatic drop in intelligence, powers of memory and concentration, the onset of irritability alternating with emotional dullness, loss of sexual drive and deterioration in his marriage and relationship with his children. The disorder has diminished the quality of his life, in particular his family life, and prevented him from working more than intermittently as a carpenter, otherwise having to resort to menial activity for a considerably reduced income.

9. Mr Ng disputes that Mr So suffered any head injury as to result in brain damage in the accident giving rise to the personality disorder complained of. His defence is that Mr So has made up or exaggerated his symptoms or in the alternative is suffering from a psychiatric disorder not related to the accident.

10. The trial thus has centred on the extent of Mr So's injuries and the disabilities deriving therefrom. Those called to give evidence were first Mr So and his wife Madam Ku Siu Lan ("Madam Ku"), followed by a number of doctors including specialists and other professionals in related fields who were engaged by both plaintiff and defence to examine Mr So and report on his condition and state whether their findings were attributable to the accident. In certain areas there are significant differences of opinion by these professionals whose expertise in their various fields could not and has not been challenged.

11. My task is the difficult one of trying to establish what, on balance, the true picture is, the burden being on Mr So to prove his case.

12. A summary of the evidence now follows.

The evidence

13. Mr So was called first. Asked to elaborate on his pre-accident work situation he said that Cheung Hop employed him as a carpenter foreman, and that his duties included reading and interpreting plans and working drawings, supervising and organising the work to be carried out by other carpenters in the gang and co-ordinating their separate activities. For this he was paid at $320.00 per day, $40.00 per day more than the rate for carpenters at the time. By 1992 the rate for an ordinary carpenter had risen to $480.00 per day. His rate were he to have been able to continue to operate as a foreman would have been $560.00 per day, with consequent increases for inflation after that. He worked 30 days per month because his employer was very busy and work was available on Sundays and other holidays. Describing his condition after the accident he said he could no longer work as a foreman because he lost the ability to read and understand and commit to memory the data set out in plans and working drawings. Moreover he was nervous and scared. Though he was taken on by companies called Kin Kei and Brilliant Design to do some carpentry work it was spasmodic only; he could not work as before. His memory was bad and he could not concentrate.

14. Speaking of his family life he said that before the accident his relationships with his wife and children were close and loving and spontaneous with much shared activity. But things changed drastically afterwards. He became withdrawn and nervous. They stopped going out together and a long time ago social intercourse virtually ceased. His sexual libido has gone from active to non-existent. Although the family still lives together the others including his wife ignore him and lead separate lives.

15. Speaking of the accident itself he is no longer able to recall if he hurt his head, or lost consciousness. He concedes he made no reference to a head injury when first admitted. There is still a residual pain in his left wrist, now 11 years later, and it is not as flexible as it was before the accident. Ever since the accident he becomes frightened when walking on the footpath or when in the vicinity of vehicles.

16. He has over the years been interviewed by a number of doctors and specialists. On every occasion he did his best to respond to questions or otherwise perform to the best of his ability. He did not fake or exaggerate his problems.

17. In cross examination a short video tape was played in Mr So's presence. It was filmed on behalf of the defence by a cameraman on surveillance and some detail was not clear. It purported to show Mr So leaving his home, walking normally, apparently unphazed by traffic, meeting someone at a tea house and sharing a light meal, arguing with that person as to who should pay the bill, lifting and carrying a portable electric circular saw and departing. Asked to confirm that it showed him he agreed it did. Asked if the saw was his he said it was his employer's. He had been asked to take it home and he had done so. He was not then engaged in carpentry and he did not use it. He denied that his wrist had fully recovered. He denied that he made up suffering from memory loss. He denied that at least until his second accident in July 1992 he was quite capable of returning to work as a carpenter foreman.

18. The second witness was Madam Ku, Mr So's wife. She confirmed the dramatic change in her husband after the accident. Beforehand he had been hardworking, cheerful and responsible. Afterwards he was moody, depressed and had lost his confidence. He withdrew further and further from his family where before they had been close. Now they are virtually strangers. He became hot tempered, picky and now mutters to himself, sitting by himself on the balcony. He no longer helps with household chores. She is not aware of any event apart from the traffic accident that could have changed his personality so drastically.

19. And so to the medical evidence.

20. The first witness in this category was Dr Peter Yu. He is a psychiatrist engaged by those representing Mr So. He examined Mr So in 1991 four times before submitting his first report. In 1995, 1997 and 1998 he prepared and submitted three more reports, having seen Mr So once each prior to the reports of 1997 and 1998. The reports are comprehensive in detail.

21. Dr Yu confirmed from the witness box that he stood by his findings which he then went on to summarize. It was his conclusion that Mr So underwent a marked personality change as a result of the accident. This manifested itself in his relationships with his family and was the direct cause of their now having virtually nothing to do with him, and in his inability to perform simple mathematical and other mental functions necessary to work as a foreman carpenter. He concluded that Mr So suffers from a disorder known formerly as frontal lobe syndrome now called organic personality disorder. This is a more or less permanent affliction caused by injury to or disease of the brain. Tests conducted on Mr So ruled out the prospect of damage caused by disease. Though there was no medical or other evidence before him of a head injury suffered or complained of at the time of the accident, and although EEG and MRI tests and a CT scan later undertaken were to prove negative, Dr Yu formed the view that the disorder he diagnosed could only have occurred in the trauma of the accident but with brain damage so subtle that it did not show up on the tests.

22. The next witness was Mrs Hannah Chung. She is a clinical psychologist who conducted tests on Mr So to establish his IQ rating. She diagnosed dull normal, which is a percentile ranking of about 20. She found Mr So to have done his best and the results to be reliable. It was on these results that Dr Yu had relied to form the view that Mr So suffered a marked decline in his intelligence since pre-accident days; one of the factors to persuade him that he suffered from organic personality disorder.

23. Another Dr Yu came next whom I shall call Dr Y L Yu. He is a neurologist who examined Mr So and interviewed his wife in early 1999. He also had access to all medical records and other reports prepared prior to that date. It was his view that whilst there were no external injuries to the face or head that would be expected for there to be a brain injury, such could not be excluded. On an overall view he believed it more likely than not Mr So did suffer a minor head injury and this gave rise to post concussional syndrome. This probably caused the neuroses and personality changes diagnosed by the psychiatrists. But Dr Y L Yu went on to say that it is difficult to evaluate the relative contribution of the psychological effect of a trauma and that of a direct brain injury in case studies such as Mr So's.

24. The final witness called in support of Mr So's case was Miss Jocelyn Au. She is an occupational therapist, and was asked to carry out tests and assessments on Mr So in 1998. She found that the injury to his left wrist and right hand resulted in a permanently reduced strength in grip and pinch, which would limit his ability to perform as a carpenter because of reduced strength and endurance. She also found established a deterioration in mental function which would reduce his effectiveness as a carpenter working independently of supervision.

25. Finally in support of Mr So's case I was presented with reports prepared by Dr Philip Mao following his examination of Mr So in 1990 and again 1997. His tests and reports were limited solely to the injuries Mr So suffered to his hands and wrists and right foot. In his first report he found some limitations in his ability to move his left wrist and right wrist leading to a total impairment of 9% and loss of earning capacity of 10%. In the subsequent test he found an improvement in all areas and reduced the percentage impairment to 5% and loss of earning capacity to 7%.

26. And so to the defence case.

27. Dr Shroff was called first. He is a neurological surgeon, invited by the defence to interview Mr So in 1992 following which he reported on him. He saw him again in 1998 along with reports of other doctors and specialists submitted in the meantime and reported again. His findings were in marked contrast with those of the two Dr Yu's. He carried out or had access to the results of certain tests to establish the extent if any of a brain injury which might have given rise to or contributed to psychosis from which Mr So was suffering. The tests revealed no sign of injury. Whilst not discounting that microscopic injury might not show up in the tests yet cause or contribute to abnormal behaviour, he said such minimal damage would likely be manifested in a display of only mild symptoms. Those of such extreme disorder seen in Mr So would inevitably be spotted on a CT or MRI scan or EEG reading. Certainly this would be the case for an injury resulting in frontal lobe syndrome (organic personality disorder). It was his belief that during the course of the accident there was no head injury suffered at all. He pointed to there being no visible sign of any injury to the face or skull, when even a minor impact will result in bruising, the absence of complaint by Mr So of injury to his head, and no report of loss of consciousness. He said that psychological symptoms can arise spontaneously for no apparent reason. He concluded that Mr So having sustained no head injury in the accident, his psychotic condition could not be attributed to the accident.

28. The second defence witness was Dr Chung See Yuen. He is a psychiatrist who saw and reported on Mr So in 1998.

29. He formed the view that Mr So exaggerated or fabricated his symptoms of mental disorder because of inconsistencies in the various tests he devised. He believed he was not suffering from post concussional disorder or cognitive impairment and in particular from frontal lobe syndrome due to brain trauma because of the absence of any sign of concussion.

30. Finally for the defence was called Dr David Cheng, an orthopaedic surgeon invited to see and to report on Mr So in 1998. It was his view that there were residual deficiencies in the flexibility in his left wrist and found him to have 4% impairment and 3% loss of earning capacity.

Findings of fact

31. Whilst there are variations between the two orthopaedic surgeons as to the extent of Mr So's physical impairment it is apparent that the major areas of conflict amongst the experts are the extent to which Mr So is afflicted by mental impairment and whether that was caused by the accident.

32. Dr Shroff, a highly qualified and experienced neurological surgeon, expressed doubt on the genuineness and reliability of Mr So as he was asked to recount his problems, a reservation shared also by Dr Chung. Both are quite entitled to that view which may well have been fortified by Mr So's demeanour during the interviews. The remainder of the doctors and specialists formed a contrary view. Having considered all the reports before me and having had the advantage, denied Drs Shroff and Chung, of seeing and hearing not only Mr So but also his wife, I am satisfied that his record of events and of his personality changes were recounted to the fullest and most accurate extent as his diminished capacity allowed. In short his complaints are genuine; he is not a malingerer. I arrive at that conclusion mindful of the video tape played, which depicts Mr So as a man behaving normally. But the passage was brief, the picture was at times not clear and it does not really help to establish one way or the other the extent of his ailments. Much more reliable is the wealth of expert data on the subject and otherwise what I have seen and heard.

33. What is much more difficult for me to decide is as to when and how the personality disorders came about.

34. Dr Peter Yu probably saw, dealt with and reported on Mr So more extensively than the others. His expertise is unquestioned and his credentials are impressive. He was of the firm belief that Mr So suffers from organic personality disorder. As the combined medical view is that this can only be caused by brain injury itself caused by trauma or disease, and disease was ruled out, I cannot but help feeling, with due respect to Dr Yu, that he went searching for a trauma and concluded there must have been such in the accident because of the coincidence in timing. Yet it is quite apparent from Mr So's own account and from a preliminary assessment of his injuries that he broke his fall by putting out his hands; there is no evidence that his head or face struck the ground at all let alone forcefully. Any suggestion of loss of consciousness is at best speculative, Mr So never having been able to give a consistent account about that. Certainly he had his faculties when approached by Mr Ng, the motorcyclist, seconds later, and after that when in the ambulance.

35. The absence of positive results on the various clinical tests carried out do not extinguish the possibility of subtle, indeed microscopic, brain injury. But I pay heed to Dr Shroff when he says that minor injury causes minor disorders. Given as I am satisfied Mr So's unfortunate mental impairment is anything but minor, I am obliged to find questionable Dr Yu's opinion that he has organic personality disorder caused by injury to his brain suffered in the accident.

36. The burden being on Mr So as plaintiff to prove his case, I find I cannot on balance be satisfied he has on this vital issue.

37. His claim for loss must thus be limited to that occasioned by his physical incapacity flowing from the accident.

38. I come now to assess that loss.

PSLA

39. The first head of damages is known as PSLA; pain, suffering and loss of amenities.

40. In the leading case of Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657, the Court of Appeal stated that how much should be awarded under this head is directly related to whether the injury suffered falls into or outside the categories described, in rising order of severity, as serious injury, substantial injury, gross disability and disaster. This is to be established by comparison with other decided cases. The quantum is then determined by what has been laid down by the Court of Appeal, with due allowance to cost of living and other inflationary factors.

41. Counsel for Mr So, Mr Wu, has submitted that Mr So's afflictions fall at the top end of the serious injury category or within the substantial injury category. But that is on the basis that his mental impairment was caused by the accident, and I have not found that to have been established.

42. Counsel for Mr Ng, Mr Gidwani, proposes a figure of $100,000.00 based on two cases. One, with respect, is not on point and is of not much assistance. The other is more helpful. It is Chan Oi Ming v. Christian Family Service Centre and Cheng Yuk Kuen, unreported, No. PI 339 of 1995. In that case the plaintiff was involved in a traffic accident in which she suffered permanent damage to her left shoulder with ongoing pain and loss of mobility. She was awarded under the head PSLA $100,000.00.

43. What I have is a plaintiff who suffered certain physical injuries which, combined, were serious enough that they gave him a sick leave of two years, but which thereafter would have resulted in a minor reduction in his capacity to work at his chosen trade.

44. I propose to award $125,000.00 under this head.

Loss of Earnings

45. Before trial Mr So, though employed casually, was in effect working full time for the one employer and to capacity at that, namely 30 days per month. He was being paid $320.00 per day, some $40.00 per day more than the going rate for a carpenter. I accept Mr So's account that that was because he had the added responsibility of supervising other carpenters. There was nothing to suggest that he could not have continued in that role, with an income to match. But there is no guarantee that he would have continued to work a 30 day month. His then employer made it quite clear in a letter, produced by consent, that casual workers would be offered days to work only if it were available. That is something I have to take into account. All in all I am satisfied that Mr So could have expected to work as a carpenter foreman at the then going rate for 26 days a month. That is my starting point. I am also satisfied, in reliance on the evidence of the orthopaedic surgeons on both sides, that based on his physical injuries (for it is only those now that are applicable) he was entitled to sick leave for two years and after that could have returned to work as a carpenter (but not as a foreman carpenter). That he did not, but worked either not at all or spasmodically, and only intermittently as a carpenter, was probably due to his mental impairment and is not a matter I can take into account. In essence I have to make allowance for a notional income as a carpenter working a 26 day week from the date of cessation of his sick leave. Of course it goes without question that I have to disregard the accident he suffered in 1992 and the consequences of that which are not a matter for these proceedings.

46. I come now to calculate what his losses of income amount to.

Pre-trial losses

47. On his own account and figures submitted as reflecting the appropriate rate of pay for carpenters that would have risen from $280.00 per day in 1989 to $770.00 in 2000. He was a foreman earning 121/2% more. His range would have been $320.00 to $866.00 per day. That represents a mean, spanning 11 years, of $593.00 per day for a 26 day month. His gross would have been $2,035,176.00. His notional income, as an ordinary carpenter employed between March 1991 and February 2000 would have been from $450.00 per day to $770.00 per day. That represents a mean, spanning 9 years, of $610.00 per day; in all $1,712,880.00. His net loss is thus $322,296.00 from which should be deducted sick leave he was paid of $25,600.00 making $296,696.00.

48. This is the amount of his pre-trial loss of earnings.

49. I come now to his entitlement thereafter.

Future loss of earnings

50. My first task is to establish the appropriate multiplier, which bears to his age now and his expected age of retirement. He is 50 now and has a reasonable expectation that he would have worked as a carpenter until at least 60. I believe the appropriate multiplier is 8.

51. Adopting the same premise as pre-trial, namely, that but for the accident Mr So would have worked as a foreman carpenter, but because of the accident could expect to work as no more than a carpenter, the allowable loss amounts to the difference in income based on a 26 day month for a period of 8 years. That daily difference is $96.00 and overall becomes $239,616.00.

Loss of earning capacity

52. There is a claim under this head but Mr Wu frankly concedes it cannot be supported in the light of the claim made and awarded under the previous head.

Special damages

53. Actual expenditure Mr So says he has had to pay as a direct result of the accident comes to $4,489.00. As this figure is not disputed I shall not itemise it.

54. The allowable claim for special damages is $4,489.00.

Interest

55. There will in the usual way be an award for interest on the general damages and the pre-trial earnings.

56. Mr Gidwani argued that those representing Mr So had taken an inordinately long time to bring his case to trial, and the defence should be required to pay interest for only part of that time.

57. I disagree. The proceedings have taken longer than usual. But the circumstances surrounding Mr So, including his unfortunate mental impairment and second accident, have combined to add complications. In the circumstances interest will run to the date of trial without deduction.

58. There will be an award at 2% per annum on general damages from writ to trial (8 years) and at 6% per annum on the pre-trial loss of earnings and special damages from the date of injury to trial (11 years). These come to $20,000.00 and $198,782.00 respectively.

59. The allowable claims are as follows:-

PSLA	$125,000.00
Loss of income to trial	$296,696.00
Loss of future income	$239,616.00
Special damages	$4,489.00
	$665,801.00
Interest at 2% on $125,000.00 (8 years)	$20,000.00
Interest at 6% on $301,185.00 (11 years)	$198,782.00
	$884,583.00
Less 25% contributory negligence	$221,145.00
	$663,438.00

Judgment

60. Judgment is for the plaintiff in the sum of $663,438.00.

61. The parties are invited to restore the proceedings for argument on costs.