IP SHUK HING v. YUEN YUK WAI AND ANOTHER

HCPI 216/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.216 OF 1999

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J U D G M E N T

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1. On 12 October 1996 at about 2:30 p.m., the 42-year-old plaintiff was struck by a private car, driven by the 1st defendant and owned by the 2nd defendant, as she attempted to walk across Fu Kin Street, a service road nearby her house at Lung Hang Estate at Shatin.

2. The collision caused a hairline fracture to the Gerdys tubercle, a small bone in her right knee, and a contusion to her head.

3. She claims that the collision also brought about, or substantially contributed to various neurological and psychiatric symptoms including the clinical depression she presently suffers and accordingly made it impossible for her to work following the accident.

Liability

4. There was no real issue that the 1st defendant was negligent in driving the car owned by the 2nd defendant at the time of the accident.

5. On 8 April 1997 at Shatin Magistracy, the 1st defendant pleaded guilty to an offence of careless driving arising out of the collision with the plaintiff.

6. In this trial, the 1st defendant called no witnesses as to the events of the collision and did not himself give evidence. That meant the only substantial evidence before me as to the events surrounding the accident came from the plaintiff herself as there was no other witness called in this regard by any party.

7. The plaintiff's evidence was both oral and by way of her adopted statement. She said she had approached the service road, intending to cross it, stopped and looked to her right. She satisfied herself there was no car coming and then commenced to cross the street. She had taken one step onto the road when she suddenly saw the defendants' car driving quickly towards her. She was unable to get out of its way and it struck her on her right side and threw her onto its bonnet. She then fell to the ground and lost consciousness.

8. There are certain inconsistencies in the plaintiff's version of events. Firstly, from her evidence, there is no explanation as to how it was she had not seen the vehicle proceeding along the street towards her when, according to her evidence, immediately before being struck, she had stopped to check the street was clear.

9. From the photographs at p.7024-7028 of the agreed bundle, it is quite apparent that Fu Kin Street and the view along it is relatively unencumbered by any permanent obstacle, and that from where the plaintiff was, as marked by her in the photograph at p.7025, she, on the face of it, would have a clear view down the street to her right in the direction from which the defendants' vehicle came.

10. Why she did not see the defendants' car when she stopped and looked down that street just prior to taking a step off the curb and being struck is unexplained in the evidence she gave.

11. In my judgment, her evidence in this regard does not make sense. I bear in mind in assessing her evidence that she was, immediately after this point of time, struck quite traumatically by a motor vehicle and, to some extent at least, had her state of consciousness impaired and, as will be seen, subsequently suffered some cognitive impairment.

12. Nevertheless to be struck by a motor vehicle in broad daylight after taking one step onto Fu Kin Street after having, on her evidence, immediately before that checked to make sure the street was clear of oncoming traffic quite simply does not ring true.

13. The plaintiff was cross-examined in some detail. It was put to her that she had substantially crossed Fu Kin Street when the defendants' car had collided with her and that she had in fact crossed completely in front of the path of the car. It was put to her that at that stage, she had then taken, for some unknown reason, two steps backwards into the path of the defendants' car and had struck it on its right front. All this she denied.

14. It is true that the damage to the front of the defendants' car, including the depression in the bonnet, was on the middle to right side of its frontal area. It is difficult to see how the plaintiff could have been only one step onto the road from the curb so as to damage the right frontal area of the defendants' car at impact.

15. If that were so, it would mean that the defendants' car swerved off the road into her. In her evidence, she did not suggest this had happened. In my view, this is another area of the plaintiff's evidence which does not make sense.

16. Taking the plaintiff's evidence as a whole, together with the other evidence contained in the case, I have concluded that the likelihood is that the plaintiff had substantially commenced her journey across Fu Kin Street and that is why she was struck by the right frontal area of the defendants' car.

17. I should also say at this stage that in the photographs, particularly at p.7028, are shown a trail of what appears to be gloves and tissues and other objects from the middle of the street to the curb. There was no evidence that there were the plaintiff's or that they came to be in the photographed portions as a result of the accident or indeed when they came to be upon Fu Kin Street. Accordingly, there is no evidence connecting these items to the accident and I place no weight upon them.

18. Another matter which should be mentioned is that it was common ground that the bent road stanchion shown in the top photo on p.7028 had no involvement in the accident.

19. Nevertheless, regardless of the inconsistencies in her evidence, I am satisfied that the plaintiff has established negligence on the part of the 1st defendant.

20. There was nothing on the evidence to obstruct the view of an oncoming driver along Fu Kin Street. A person such as the plaintiff crossing or intending to cross the street at the ramp area shown in the photograph at the bottom of p.7028 would have been plainly in view of an oncoming driver sometime before she reached the roadway and a driver, if he had been keeping a proper lookout, would have been quite aware that that person would likely proceed to cross the street.

21. Accordingly, I conclude that even given the inconsistencies in the plaintiff's evidence, taken as a whole her evidence together with the 1st defendant's conviction for careless driving in respect of this incident and the operation of s.62(1) of the Evidence Ordinance, establish liability in the 1st defendant.

Contributory negligence

22. I think it is fair to say that this was the real issue insofar as the question of liability was concerned.

23. I have already mentioned that there were areas of the plaintiff's evidence which did not make sense.

24. In my view, these inconsistencies arise in the plaintiff's evidence for the simple reason that she did not properly check the road for oncoming traffic prior to walking out onto it. In my view, her evidence as to having taken only one step onto the road is an attempt by her to understate her actions in this regard.

25. I am satisfied on all the evidence, including the evidence of damage to the defendants' car, that the plaintiff had gone far enough at least onto Fu Kin Street so as to cause the 1st defendant to swerve to his left in an unsuccessful attempt to avoid her. That is supported by the location of damage on the car and is further supported by the fact, accepted as common ground, that the car ran off the road and into the flower bed or trees above the curb. It is supported also by the location and direction of the skid mark which is shown both on the agreed police sketch plan at p.7023 and the photo at the top of p.7025. Further damage is shown to the curb itself in that photograph.

26. From this, in my view, the likelihood is that the 1st defendant swerved off the road to avoid the plaintiff but, even so, struck her on her right side with the right frontal area of the car.

27. I am satisfied that the plaintiff commenced her crossing of the road into the path of the defendants' car and did so because she had not properly checked to see that it was safe for her to do so, but that she did not step out immediately into the path of the car and was in clear view for an appreciable time before the collision.

28. Taking all these matters into account, I attribute 80% of the blame to the 1st defendant and 20% to the plaintiff. In arriving at that apportionment, I bear in mind my finding that both the plaintiff and the 1st defendant failed to keep a proper lookout but that the obligation to do so on the driver of a motor vehicle, in the circumstances of this case, travelling at a relatively high speed, it seems to me, is greater than that of a slow moving pedestrian. In Baker v. Willoughby [1969] 3 All ER 1528, Lord Reid said :-

"A pedestrian has to look both sides as well as forwards. He is going at perhaps 3 m.p.h and at that speed is rarely a danger to anyone else. The motorist has not got to look sideways although he may have to observe over a wide angle ahead and if he is going at a considerable speed he must not relax his observation for the consequences may be disastrous ... in my opinion, it is quite possible that the motorist may be very much more to blame than the pedestrian."

That judgment involved a case where both the pedestrian and the motorist had failed to keep a proper lookout.

29. In my view, the driver of a motor vehicle travelling on a road where, as in this case, pedestrians might well be expected to cross, has a duty to allow for that in the precautions he takes or should take in the course of his driving. In other words, when driving on a feeder road in the vicinity of a housing estate, a driver should be particularly alert for pedestrians.

30. There is no suggestion that the plaintiff ran onto the road, or entered the road between parked vehicles or otherwise proceeded at anything but a regular pace. She did not come suddenly out into the path of the defendants' car. She was not walking unexpectedly onto a busy thoroughfare. Instead she walked down a ramp onto what appears to be a relatively quiet estate street. In my view, the apportionment I have arrived at properly reflects the balance of blame in those circumstances.

Liability of the 2nd defendant

31. The plaintiff's case so far as the 2nd defendant's liability is concerned is that, at the material time, he was the owner of the motor vehicle driven by the 1st defendant. This was not in issue.

32. There was no evidence adduced before me as to how or in what circumstances the 1st defendant came to have possession of the car at the time of the accident. Nor was there any evidence as to the nature of the relationship between the defendants. There was no evidence as to the purpose or reason for the 1st defendant to be driving the 2nd defendant's car at the time of the accident.

33. In short, apart from the unchallenged fact that the 2nd defendant owned the car involved in the collision, there is no other evidence capable of throwing light upon the question of his liability for the negligence of the 1st defendant.

34. The car was a private vehicle, not on the face of it a vehicle used for commercial purposes, and nothing concerning its appearance or equipment would suggest anything as to its use being other than for private purposes at the time of the accident.

35. At the end of the day I cannot, on the state of the evidence, infer any relationship of principal and agent or any other relationship existing between the 1st and 2nd defendants so as to render the 2nd defendant vicariously liable for the negligence of the 1st defendant.

36. In respect of this issue, I was provided with a number of authorities by the plaintiff : Shirley June Dunnicliffe v. Leung Wing and Another [1963] HKLR 62 and Hewett v. Bonvin [1940] 1 KB 189. Those authorities predate but are on all fours with Launchbury v. Morgans [1973] AC 127, perhaps the leading case as to the vicarious liability of owners whose vehicles are involved in accidents whilst being driven by another.

37. Lord Wilberforce stated in that case that it is necessary for the plaintiff to show that the driver was using the vehicle for the owner's purposes under a delegation of task or duty. The court reaffirmed the principles of vicarious liability involving owners of motor vehicles as requiring some proof of the owner having some interest in the purpose for which the vehicle was being used.

38. In the present case there is no evidence as to what the purpose of the 1st defendant was in using the vehicle. There is insufficient evidence as to the circumstances of user of the vehicle for me to draw any inference as to the purpose of the 1st defendant's use of the vehicle.

39. The plaintiff has not established her case against the 2nd defendant and accordingly I give judgment for the 2nd defendant.

Quantum

40. It is common ground that the plaintiff sustained physical injury to her right knee involving a hairline fracture of the small bone called Gerdys tubercle. She received also a blow to her head which resulted in a haematoma and a disputed degree of loss of consciousness.

41. Arising from the blow to her head, it is common ground between the plaintiff's neurological evidence and the defendants' evidence that she suffered some degree of post concussion syndrome evidenced by memory and concentration impairment. There is dispute as to whether she additionally has psychiatric and psychological problems of depression and post trauma stress disorder.

Right leg injury

42. So far as her physical injuries are concerned, there is considerable dispute on the evidence as to the degree of residual impairment she has suffered to her right leg.

43. On her evidence, she still suffers knee pain and can only walk with the use of a stick. She says that pain prevents her from performing fully her household chores as she has to set and rest on occasion and cannot, for example, use ladders to clean high items. She says she cannot carry as much shopping as before. The leg injury, according to her, has interfered with her sex life and prevents her sleeping normally.

44. On 9 July 1999, the plaintiff was seen by Dr Lam Kwong Chin, an orthopaedic specialist who gave evidence in the defendants' case. He described the injury to the Gerdys tubercle as a crack fracture which in the normal course would heal after immobilisation within four to six weeks. He said the small bone involved is not weight bearing and not part of any articulated surface. Patients are allowed full weight walking immediately.

45. He said X-rays show the fracture to have healed completely with no residual traces remaining. He was of the view that the plaintiff's complaints of continuing severe residual pain were not consistent with the healed state of her right knee. He reported that during his examination, the plaintiff screamed in pain. In his opinion, this reaction was totally out of proportion to the healed state of the injury.

46. In his view, the plaintiff was exaggerating her symptoms. He found further support for this in seeing, on occasion, during his examination, the plaintiff display full extension capacity in her right leg, yet on specific examination of the legs range of movements, she could not extend it beyond 30( from horizontal. She had flexion limited to 70(, i.e. a range of movement of only 40( before her reports of pain prevented further movement. He had not been able to find any significant wastage in the muscles of the right leg.

47. In short, Dr Lam was unable to find any physical basis for the plaintiff's complaints of pain relating to her right knee. He assesses her loss of capacity as the result of the knee injury as being 1%.

48. Dr Lee Po Chin, for the plaintiff, examined her on 17 April 2000. He found her walking with a stick and with a limp. Upon examination, he found she could fully extend her right leg but had flexion limited to 100( giving a range of movement of 100(.

49. He had recorded incorrectly her leg girth measurements in his working notes but says he was able to correct them. He says those measurements indicated the patient's right calf girth was greater than her left leg calf girth but that her right leg thigh girth was less than her left leg thigh girth. In both measures, the differential was about one centimetre. He disagreed with Dr Lam's evidence that a differential of one centimetre was insignificant.

50. He agreed he found the muscle strength in the right leg to be normal and that there was no evidence of ligament laxity or impairment. He agreed that if the plaintiff's complaints of pain were genuine, then he would have expected greater muscle atrophy in the right leg than he had found. He eventually agreed the reason he thought the girth differentials of one centimetre were significant was because they were asymmetrical. He could not elaborate on this and agreed that such differentials may be normal and that a one centimetre differential was not very significant in any event.

51. I accept Dr Lam's opinion that the plaintiff had exaggerated her leg injuries on examination. In my view, she had exaggerated her evidence in this regard in court also. Dr Lee was of the opinion that the existence of residual pain from a wholly healed Gerdys tubercle fracture would depend on associated injuries. There was no evidence of any associated injuries in the plaintiff's case. Dr Lee agreed there was no ligament laxity or impairment. In my view, even on Dr Lee's findings, there was no physical basis for the symptoms reported by the plaintiff.

52. Indeed from the video screened in evidence during the defendants' case, the plaintiff shows a surprising ability to walk about in public quite briskly and without a limp albeit with a stick. She does not appear to place much reliance on that stick, however, in being able to walk. Her appearance in that video was in considerable contrast to her hesitant and apparently difficult progress to the witness box during this trial.

53. From a consideration of the evidence as a whole, I am satisfied that the plaintiff's evidence should be approached with caution. In my view, she has exaggerated her case on a number of occasions.

54. I believe Dr Lam's evidence as to the plaintiff's leg injury is reliable and accurate. I accept she exaggerated her symptoms to both Dr Lam and also Dr Lee. In my view, Dr Lam is right in his opinion that the plaintiff suffers a very minor degree of residual disability in her right leg.

Post Concussion Syndrome

55. It is common ground the plaintiff suffered no evident physical brain injuries. Both the plaintiff's and defendants' medical experts agreed she had some degree of Post Concussion Syndrome ("PCS"). All found upon examination symptomatology supporting a diagnosis of PCS. She reported, according to the hospital notes, symptoms consistent with PCS at a relatively early stage. Those symptoms included headache, dizziness, irritability and memory impairment.

56. I accept that the plaintiff did suffer from PCS as a result of the accident on 12 October 1996.

57. The neurological tests, she was subjected to, confirm a real deficit in her attention and repetition abilities. That is consistent with her claimed inability to concentrate. Those same tests showed she had a borderline memory deficit which is consistent with her claims of forgetfulness following the accident.

58. In my view, her cognitive deficit could be accurately described as mild to moderate. I accept she also suffered the symptoms of headache, instability and dizziness she complained of following the accident.

59. Dr Woo K.W., a neurologist called in the defendants' case, was taken in some detail through the existing hospital notes and reports. In his opinion, those reports and notes were indicative of a gradual recovery from a mild event. He said that improvement in PCS cases typically occurred over 1 or 2 years and that the plaintiff's medical impairment from PCS and its associated cognitive symptoms was now mild. This opinion was reinforced in Dr Woo's view by the plaintiff's ability to copy the records of payments made by her in respect of travel expenses and domestic helpers expenses from her husband's injured documents. He agreed that depression could be a symptom of PCS but said that the symptoms usually composed anxiety and somatic symptoms.

60. Professor W.S. Poon, a neurologist called by the plaintiff, regarded her cognitive deficit as moderate. After his first examination, he found that she had no other neurological deficit apart from cognition. Those cognitive deficits were, in his opinion, a severe impairment of her memory based on her ability to perform a serial mathematical subtraction test and her failure to remember some of her own personal particulars. Together with her other complaints, he regarded her as having PCS. He saw her 18 months after the accident and agreed most patients with PCS recover fully within 12 months. In his report of 8 April 1998, he said "Her persistent symptoms and poor memory is more than what I anticipate from the severity of brain injury".

61. He agreed that by the time of his second examination of the plaintiff on 30 November 1999, there had been some cognitive improvement. Her long term memory was now intact, although her concentration was still poor.

62. In other words, Professor Poon found some improvement in the plaintiff's cognitive impairment when he saw her on the second occasion. That is consistent also with the gradual improvement Dr Woo found in the hospital records.

63. Dr Woo further said that the reliability of the cognitive tests the plaintiff was subjected to depended on her co-operation, and that perhaps is self-evident.

64. Dr K Singer for the defendant and Doctors M.Y. Law and Peter Ho for the plaintiff were psychiatrists (in the case of Dr Law, a trainee psychiatrist) who also gave evidence to the effect that the plaintiff suffered from PCS. They differed in their opinions of the severity of the symptoms the plaintiff suffered. Those symptoms found by them were partly from their own observations of the plaintiff and partly from earlier medical reports and notes produced to them.

65. Albeit experts in psychiatry, and I accept Dr Law as an expert in this regard also as he had been practicing in the field for four years, they were, in my opinion, qualified also to give evidence on the symptomatology of PCS as well. That, from the evidence, is a disorder which I am satisfied overlaps the fields of neurology and psychiatry.

66. In my view, Dr Singer is correct when he describes the plaintiff's overall symptoms as mild in degree. His evidence as to the gradual improvement in her symptoms generally was consistent with Dr Woo's evidence to the same effect.

67. Dr Singer also expressed concern that the plaintiff was exaggerating her symptoms. He gave objective reasons for this view. I do not place great weight on all of his comments in this regard, but some are in accordance with other evidence in this case. He points out her lack of co-operation in some aspects of his examination.

68. He points out, for example, her exaggeration of the time period during which she says she was unconscious following the accident. She told him she came back to consciousness in the hospital ward. Hospital notes record her as being "alert on arrival".

69. I take note also in this regard that the plaintiff told Dr Law that she had been unconscious for half a day. Yet the hospital notes show that only one hour after the accident she was registering a full reading on the Glasgow Coma Scale, i.e. was fully conscious.

70. As in other aspects of her evidence and her presentation of symptoms to examining doctors, I am satisfied she exaggerated her symptoms.

Post Traumatic Stress Disorder (PTSD)

71. Dr Law and Dr Ho were of the opinion that the plaintiff, in addition to PCS, suffered also from symptoms relating to PTSD. Those symptoms included and overlapped to some extent with the symptoms making up the plaintiff's PCS. Additionally, they encompassed her complaints of anxiety, nightmares, insomnia and aversion to the scene of the accident and to crossing roads generally.

72. Dr Singer was less certain that the plaintiff suffered from that particular disorder. I am satisfied she did suffer the symptoms which go to make up this disorder as a result of the accident and that, in general, her complaints as to the type of symptom she suffered in this regard, setting aside severity for one moment, are generally reliable. That is because, it seems to me, too great a coincidence she would be able to come up with symptomatology falling within a recognized psychiatric disorder without there being a basis in fact for her complaints. I take into account that she had not had any complaint of these symptoms recorded or noted prior to her marital difficulties at the end of 1998 and early 1999. But almost immediately upon her admission to hospital in February 1999 following her attempted suicide, she provided these symptoms to Dr Law in a coherent group which fell within the elements of PTSD. These symptoms, and the report of them to Dr Law as back-dating to the time of the accident did not include depression as relating to the accident. Her report of depression to Dr Law, her treating psychiatrist at that time, was related only to her marital difficulties.

73. On the whole of the evidence before me and taking into account the plaintiff's exaggeration of her symptoms, I consider the PCS and PTSD symptoms overall to be in the mild category and accept the opinion of Dr Singer in this regard.

Depressive Disorder

74. It is in this area that issue was firmly joined.

75. Although all of Dr Ho, Dr Law and Dr Singer were of the view that the plaintiff presently suffers from a depressive disorder, they differed as to its causation.

76. Dr Ho and Dr Law were of the opinion that the plaintiff had developed depressive symptoms following the accident and that her discovery of her husband's extra marital affair at the end of 1998 simply worsened that existing depression as reflected in her suicide attempt or attempts in early 1999.

77. Dr Singer was of the opinion that the plaintiff's present depressive symptoms were wholly due to her discovery of her husband's marital affair.

78. The defence case is that the husband's affair was an independent and intervening cause of the plaintiff's depressive disorder.

79. The plaintiff's case is that the depressive disorder is the most severe of her current psychiatric symptoms and originated in the accident in 1996 and continued through to and was worsened to its present degree by the marital problems arising from her husbands infidelity and that, further, that infidelity came about also as a result of the original accident due to her inability to have a proper sex life with her husband and her personality changes.

80. The plaintiff's evidence in regard to this was that she first learned of her husband's affair in late 1998. This was a few months before her suicide attempt in February 1999. She said when she found out about the affair, she started drinking heavily whereas before that she had been a light drinker. She said she drank heavily as a result of the depression she suffered. That depression started after the accident but worsened after she found out about her husband's affair.

81. I accept, and it is not in issue, that the depressive order the plaintiff presently suffers is the most severe mental or psychiatric impairment she has or will suffer from.

What caused the plaintiff's present depression

82. It is common ground so far as the various hospital notes and reports are concerned which were in existence before the February 1999 suicide attempt by the plaintiff that there is in them no mention or record of the plaintiff complaining of depression or of any depression being observed in her prior to her discovering her husband's infidelity and her suicide attempt in February 1999.

83. Further, Dr Law agrees he was not told by the plaintiff she was depressed before she found out about her husband's affair. He says though that depression could be a symptom of PTSD.

84. Dr Peter Ho bases his opinion that the plaintiff was suffering from depression prior to the revelation of the husband's affair on reports that she had occasionally burst into tears after the accident and had become irritable and lacked motivation. He also suggested in evidence that the plaintiff's symptoms of PCS and PTSD were worsening over the years 1997 and 1998. I must say his opinion in that regard seems at odds with those hospital notes which refer to the plaintiff's improvement in symptoms in this regard, and I have considerable reservations about his evidence in this regard.

85. Dr Singer formed the view that the plaintiff's depression was wholly attributable to the husband's affair on the basis that depression can be, but is unlikely to be, a symptom of PTSD which she may have been suffering from as a result of the accident, as well as the fact that there was no mention of depression in any of the clinical notes or reports made prior to her finding out about the affair.

86. I am not satisfied that the likelihood is that the plaintiff's depression originated even in part from the accident. It seems to me most unlikely that if the plaintiff had depressive symptoms before her husband's affair was known to her that there would have been no mention of this in any of the not inconsiderable notes and reports on her condition compiled in the two years between the accident and her becoming aware of her husband's affair. I bear in mind that she had been attending occupational therapy and been subjected to cognitive tests over that period.

87. I take into account that depression is a psychiatric symptom and that the plaintiff did not see a psychiatrist until after her suicide attempt in February 1999, at which time, she complained of depression. Nevertheless if depression was a symptom of any significance which she suffered after the accident, I find it surprising it went unreported and unnoted. Further at the time she was seen after her suicide attempt by Dr Law, she did not relate back her depression to the accident as she did with her PTSD symptoms.

88. In my view, the basis for Dr Ho's and Dr Law's finding that the plaintiff's depression pre-dated the husband's affair is insubstantial when compared to the reasons I have referred to above given by Dr Singer for his opinion that the depression emanated wholly from the marital difficulties of the plaintiff.

Was the husband's affair an intervening cause

89. The plaintiff's case is that the husband's infidelity, in any event, regardless of whether her depressive state was a pre-existing state or not, was itself brought about by her accident, and accordingly, so was any depression she suffered as a result of that infidelity.

90. Her evidence in this regard is that as a result of her inability to have sex and her personality change her husband became alienated from her and eventually took a mistress.

91. I find it difficult to accept the plaintiff's evidence in this regard. Firstly, as I have found already, in my judgment, she was exaggerating her residual leg disability. I cannot see, on the evidence of both Dr Lam and Dr Lee, that any residual pain would interfere with her sex life to the extent she claims. In my view, she was exaggerating her leg impairment. An example of her exaggeration in this regard in her evidence is her claim to have used a wheelchair for many months after her discharge from the Cheshire Home in November 1996. She said it was over a year after the accident before she could walk simply with a stick.

92. Yet between December 1996 (two months after the accident) to January 1998, the hospital follow up notes never record her requiring a wheelchair but always record her as walking with a stick, and on one occasion as walking unaided. Even the notes of the Cheshire Home record her as using a wheelchair only in the first day or so of her admission.

93. Secondly, as I have said, I accept that her PCS and PTSD which included symptoms of instability or bad temper was improving and was mild in nature.

94. In all of those circumstances, I cannot say it was likely that the husband's affair was caused by the mild symptoms the plaintiff displayed. There was no evidence from the husband in this regard. Nor was there any evidence as to when the husband's affair began and I am asked to infer from the plaintiff's evidence that the reasons for his infidelity perhaps some two years after the accident were the impairments to her leg and mental state, both of which were mild.

95. I am unable to infer from the facts I have found or from any other evidence in this case that the husband's affair was caused by the symptoms, physical and mental, suffered by the plaintiff as a result of the accident. All that has been presented to me as evidence in this regard in the plaintiff's assertion that the husband's affair was brought about in that way. In my view particularly given the caution with which I feel her evidence should be approached, that is not enough.

96. Accordingly, I do not take account of the plaintiff's present depressive state so far as damages are concerned.

97. I do take into account her symptoms within the disorders of PCS and PTSD I find were brought about by the accident.

PSLA

98. As I have said I am satisfied that the accident was the cause of the plaintiff's leg injury and the symptoms she complained of making up her PCS and PTSD disorders.

99. Those symptoms were, I am satisfied, headaches, dizziness, poor memory, poor concentration and irritability. I am satisfied also that she experienced additional symptoms relating to PTSD. I accept that these symptoms involved anxiety, occasional nightmares and insomnia.

100. The level of these symptoms, as I have said can properly be described overall as mild, interfering to some extent with her ability to enjoy life.

101. The symptoms seemed to have been improving slowly over the time prior to the events concerning the plaintiff's marital difficulties. However in the opinion of Dr Woo, the cognitive deficiencies the plaintiff suffers from have probably stabilized. I accept that. In my judgment, the plaintiff will suffer mild to moderate cognitive function indefinitely. The emotional symptoms relating to PTSD and PCS will likely show continued slow improvement.

102. In my judgment, there is likely to be only a very minor permanent disability in the plaintiff's right knee.

103. I have taken into account a number of comparable cases provided to me by counsel, including Chan Siu Lun v. Hui Cho Yee, PI No. 120/97; Liu Jianhui v. May Ho Graham, C.A.25/95.

104. In my view, an award of $300,000 representing about 60% of the current minimum range for serious injury as set out in Chan Pui Kee v. KMB (1996) HKLJ 395 after allowing for inflation is appropriate.

Past loss of earnings

105. The plaintiff was, at the time of the accident, earning $5,000 per month as a babysitter. She was minding her 5-year-old nephew. Out of the $5,000, she spent several hundred to a thousand dollars for the child's food and drink. I accept that a working balance would be about $4,300 per month. She was granted sick leave up to September 1997 in respect of both her orthopedic and neurological disabilities.

106. The defence case is that by January 1998, she was capable of taking up gainful employment. That proposition is based on a hospital note that on 14 January 1998 described her memory as "fair". The same note, however, detailed other evidence of forgetfulness and is, in my view, inconclusive. Another hospital note of July 1998 suggests her memory was still improving and that her instability or bad temper was "as before".

107. I bear in mind, however, the defence neurologist, Dr Woo's opinion that the cognitive disabilities of the plaintiff have stabilised. I accept that that is now so, even though there had been improvement in the early months following the accident.

108. Given that those disabilities relate to the plaintiff's concentration, memory and repetition skills, I agree with the plaintiff's submission that regardless of her physical disabilities, she was effectively rendered unfit for her work as a childminder or far any of her previous employments up to trial.

109. In my view, she could, had there been no accident, have continued her employment as a babysitter. There was nothing in the evidence to suggest her employment would have terminated in that regard before trial.

110. That is a period of 46 months at $4,300 per month. It is accepted by the plaintiff that that amount would not have increased prior to trial. I accordingly award an amount of $197,800 for pre-trial loss of earnings.

Post-trial loss of earnings

111. The plaintiff is now 45 years old. Her work history prior to her babysitting for her sister-in-law was somewhat chequered. She had, before babysitting worked in a variety of other fields, including as a messenger and as a worker in factories.

112. She had worked only intermittently since her marriage in the mid-seventies. Although there was some uncertainty in her evidence, it appears her total working years in various jobs since 1976 was no more than about 8 years.

113. Obviously during the course of that history, she had had to raise her children all of whom are now adults and no longer are impediments to her future employment.

114. I accept with her existing cognitive deficits she is unable to perform the work she had done in the past. Her lack of concentration and memory impairment, in my view, render even factory work unacceptable.

115. No other occupation was proposed in the course of evidence apart from a sheltered workshop.

116. Albeit her cognitive disabilities are mild to moderate, they are of the sort which are required for most jobs.

117. Accordingly, I allow her full loss.

118. Nevertheless, I accept the plaintiff was unlikely to have worked continuously over the remainder of her working life, given her past history.

119. Considering her age and her past working history, I take a multiplier of 7.

120. Accordingly, her future loss of earnings is $4,300 x 12 x 7 or $361,200.

Agreed special damages

121. Certain expenses have been agreed :

Tonic food is agreed at $20,000.

Medical expenses are agreed at $4,278.

Prosthetic services are agreed at $3,447.

Two other areas are in issue.

Travelling expenses

122. The plaintiff's claim is based upon documentation prepared by the plaintiff and her husband. That documentation sets out travelling expenses of the plaintiff and her husband for the purposes of the plaintiff attending treatment.

123. So far as those records are concerned, they include expenses of travelling by taxi by the plaintiff's husband from hospital to his place of work and frequent visits during the day by the husband to the plaintiff travelling by taxi when she was hospitalised.

124. In my view, the frequency of travel by taxi by the husband was, on the limited evidence before me in this regard, an unreasonable expense.

125. The travel by taxi by the plaintiff was reasonable in respect of her attending orthopaedic treatment for her leg and also in respect of her attending treatment or examinations for her PTSD and PCS complaints at an early stage of her treatment. In my view, by the date of her admission in respect of her suicide attempt, the symptoms of her PTSD and PCS were mild and would not have prevented her travelling by public transport.

126. In my view, and on the findings I have set out above, travel by her after February 1999 was mainly due to her treatment for depression. So far as that part is concerned, I do not include it in any damages awarded.

127. Taking all those matters into account, in my view, a reasonable assessment of proper travelling expenses would be $12,000.

Helper expenses

128. The plaintiff paid Madam Lo Sau Yung $4,500 per month from November 1996 to August 1998 and $5,000 per month from September 1998 to August 1999 as a domestic helper.

129. Her evidence was that she required, effectively, full daytime supervision.

130. Madam Lo gave evidence to the effect she had received these monies for helping the plaintiff on a daily basis from 10 a.m. to 4 p.m.

131. In my view, from the medical evidence in this case, the plaintiff was capable of substantially independent living from April 1997 as recorded in the hospital notes at p.139.

132. Accordingly, I award her the full amount of Madam Lo's wages up to that time. That is a total of $27,000 for the period of November 1996 to April 1997. From that time, in my view, the plaintiff required only part-time help for specific tasks such as cooking and some cleaning and shopping given the improving state of her impairments.

133. Accordingly, from May 1997 to, perhaps somewhat generously, February 1999, I allow her only $2,500 per month up to her admission to hospital as a result of her suicide attempt following her husband's affair in February 1999. That is 22 months and an amount of $55,000.

134. In my view, from that time forward and from the evidence of the video of August 1999 and the evidence of Dr Singer and Dr Woo and the hospital notes, the plaintiff so far as any residual effects of her PCS and PTSD were concerned as a whole was only mildly impaired in her daily living and, even allowing for the stabilised mild to moderate impairment in her cognitive functions of memory and concentration would thenceforward not require any substantial help or supervision.

135. But I accept that as her cognitive functions of memory and concentration seem to have stabilised at mild to moderate impairment levels, she will require some assistance in tasks such as cooking. I accept that that claim should be assessed, given the plaintiff's age, over the next 12 years as submitted by the defence.

136. In my view, the minimal supervision required should be allowed at the rate of $1,000 per month. That is $144,000. That is a combined total of $226,000 under this head of damage.

Future medical expenses

137. I make no award for future medical expenses. Those expenses, it is accepted, are expected to arise entirely out of her treatment for her present depression which, I have found, was caused by her husband's infidelity rather than by the defendants' negligence.

138. Accordingly, I award damages to the plaintiff, allowing for her contributory negligence, as follows :-

		Less 20% contributory negligence
PSLA	$300,000	$240,000
Pre-trial
Loss of earnings	$197,800	$158,240
Post trial
Loss of earnings	$361,200	$288,960
Agreed special
Damages :
Tonic food	$20,000	$16,000
Medical expenses	$4,278	$3,422
Prosthetic services	$3,447	$2,757
Travelling expenses	$12,000	$9,600
Helper expenses	$226,000	$180,800
Total :	$1,124,725	$899,780
	========	======

139. Accordingly, the plaintiff is awarded as against the 1st defendant $899,780.

140. I order costs nisi to the plaintiff as against the 1st defendant, to be taxed if not agreed. I order costs nisi to the 2nd defendant as against the plaintiff, to be taxed if not agreed. The Plaintiff's own costs is to be taxed in accordance with Legal Aid Regulations.

141. Interest on general damages to run at 2% from date of writ to date of judgment. Interest on special damages to run at half of judgment rate from date of accident to date of judgment. Interest from date of judgment to be at judgment rate.