CHOW SHUK YAN v. THE SECRETARY FOR JUSTICE

HCPI 880/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 880 OF 2005

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J U D G M E N T

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1.  The Plaintiff is suing for damages for head injuries sustained in fall from height at work. 

2.  Liability has been admitted.  The trial is on quantum.

Background

3.  The Plaintiff was born on 29 March 1982.  She was 20 at the time of the accident, and 26 now.

4.  At the time of the accident, the Plaintiff was a student for the Associate Degree of Music at the Hong Kong Institute of Education (HKIE), and she also worked part-time as lifeguard with the Leisure and Cultural Services Department.  In the afternoon on 1 October 2002, she fell about 2 m to the ground from a makeshift lifeguard stool. 

5.  The Plaintiff was sent to A&E of Princess Margaret Hospital (PMH).  She felt dizzy but was fully conscious (15/15 on the Glasgow Coma Scale).  Otoscopy showed no haemotympanum (middle ear bleeding).  X-rays showed no skull and neck fracture.  No neurological deficit was found.

6.  After going home, she felt persistent dizziness, occipital headache and tinnitus (she now claims also convulsion and cramps), and was admitted to PMH on the same night.  CT scan showed no brain haemorrhage but mild atrophy (wasting).  She was discharged on 8 October.  MRI conducted later in January 2003 showed no abnormality of the brain.

7.  Ever since discharge, the Plaintiff complained of persistent tinnitus, headache, dizziness and convulsions (in issue as to when first set in), and she had to go to hospital from time to time. 

8.  On 8 November 2002, she started consulting neurosurgery specialist at PMH, at about half yearly interval. 

9.  On 6 December 2002, the Plaintiff attended PMH neuro-clinic and was prescribed Stemetil (anti-motion sickness) and Panadol tablets.

10.   On the next day, she was admitted to Yan Chai Hospital with persistent vertigo (dizziness) with suspected Hyper-Ventilation Syndrome (HVS).  She spent 2 days in hospital, and was prescribed Stemetil, and dizziness and tinnitus were relieved.

11.  On 11 March 2003, the Plaintiff attended follow-up at PMH neuro-clinic.  Dizziness and headache gradually improved but remained.  She stopped the follow-up after November 2003.

12.  On 31 August 2003, the Plaintiff attended A&E of Yan Chai for left ear ache.  The left ear external canal was congested and eardrum bulging.  On 15 September 2003, she consulted the Yan Chai ENT clinic for left hearing impairment since August 2003.  Pure Tone Audiogram (PTA) was normal.  Diagnosis was Otitis Media (middle ear infection).  The medical notes stated this episode was unrelated to the accident.  The Plaintiff was supposed to attend follow-up at the ENT clinic but she defaulted follow-up in December 2003 and June 2004.

13.  The Plaintiff also consulted Chinese medicine practitioners in the Mainland weekly.  That lasted until September 2004.

14.  On 3 November 2004, the Plaintiff lost consciousness in the morning and she attended A&E of Caritas Medical Centre at about 2 pm.  No drug was prescribed.

15.  On 12 September 2005, the Plaintiff suddenly developed HVS when playing the recorder.  She was sent to A&E PMH.  She refused Stemetil and was discharged against medical advice.

16.  HVS means breathing too heavily, leading to excessive inhalation of oxygen and depletion of carbon dioxide in the body, associated with muscular spasms, bodily cramps and convulsions.

17.  According to the Plaintiff’s witness statement, she began to have breathing difficulties and convulsions from the end of 2004.  The first medical record for HVS was the one dated 12 September 2005.  However, she now claimed in her evidence that she first experienced such attacks on the night of the accident.

18.  On 17 January 2006, the Plaintiff had HVS attack at home.  She was admitted to A&E PMH with uprolling eyeball upon arrival with suspected convulsion.  She was given the usual re-breathing bag treatment (to inhale the exhaled carbon dioxide in the bag).

19.  On 27 January 2006, the Plaintiff started seeing Dr Brian Choa, neurologist in private practice, for treatment of headache, dizziness and tinnitus.  It continued for 2 years.  The consultations were quite frequent first, settling to about monthly.  She received basically 4 types of medication: Neurontin (for convulsion and pain), Sibelium (headache, dizziness and tinnitus), Nerislom (vertigo) and Neotropil (memory).  At times, she was also given Valium (minor tranquilizer).  Her conditions improved.

20.  On 14 August 2006, the Plaintiff had headache, dizziness and limbs twitching at work, and was admitted to A&E Queen Mary Hospital.  Valium (oral and intravenous) was given.

21.  On 2 November 2007, the Plaintiff was taken by ambulance to A&E Yan Chai for dizziness, twitching of limbs and suspected pseudo seizure.  She was hospitalized for a day.

22.  Meanwhile, she continued to see Dr Choa regularly.  She saw Dr Choa for the last time on 21 November 2007.  There was no treatment record since.

23.  The Plaintiff complained that her condition deteriorated during Easter 2008.  From June 2008, she consulted Chinese medicine practitioners at the Baptist Hospital.

24.  The Plaintiff was granted various periods of sick leave from date of the accident until August 2003 (totalling 90 days). 

25.  As to study and work, the Plaintiff started learning piano in 1990 at the age of 8, and passed Grade 7 examination in 1998.  She started teaching some piano in 1999.

26.  The Plaintiff did not do well in her School Certificate in 1999 and re-sat in 2000 with slightly better grades (1 D, 5 E’s and 1 F).  She took her A-Levels in 2002 (2 E’s, 2 F’s and 1 U) and was admitted to the Associate degree course in HKIE.

27.  In early 2003, the Plaintiff resumed taking piano lessons.  She failed Grade 8 piano in April 2004, but passed a month later in May.

28.  After graduating from HKIE, the Plaintiff started teaching children’s music classes in October 2004.  In November 2004, she worked as an assistant music teacher at Melocity Music Learning Centre.  From January to July 2005, she worked full time at Melocity earning $7,000 per month, and the contract was renewed for another year from September 2005 to July 2006.  Thereafter, the contract was not renewed, and the Plaintiff took up music and instrument classes on an ad hoc basis. 

29.  Since December 2005, the Plaintiff also started teaching at the Grace Piano Company.  Her students are mostly Grades 1 to 3.  The fees charged by the company for Grade 3 are $680 per month for 4 x 45 minutes sessions or $900 for 4 x 60 minutes sessions.  The Plaintiff’s income was 50% share of the fees of the number of students assigned.

30.  The Plaintiff had also worked as a qualified lifeguard and coached swimming during summer since 1999.  She had also worked as a fitness trainer.  She had to give up swimming due to a near drowning episode after the accident.

Medical evidence

31.  The medical report dated 21 August 200X of Dr Po Yin-Chung of PMH Neurosurgery Department stated the Plaintiff had Post-Concussion Syndrome (PCS) with headache and dizziness related to the accident.  Dr Po deferred to the ENT specialists for their opinion on tinnitus.

32.  The medical report dated 21 March 2005 of Dr Ng Tat-Yuen, the Plaintiff’s ENT expert, stated that tinnitus will likely to be permanent, and will limit the full potential as a music teacher. 

33.  The report dated 24 January 2006 of Dr Lee Wai-Chung, the Defendant’s ENT expert stated that tinnitus without hearing deficit constitutes no impairment according to the American Medical Association Guidelines.  He saw the problem lied more with HVS, and recommended psychological and respiratory therapy.

34.  The report of Dr Brian Choa dated 23 February 2006 stated that the symptoms of headaches and dizziness might persist, but motion sickness and nausea could be completely relieved.  Tinnitus had become lower pitched and less disturbing, but even subtle changes in hearing might have significant impact on a musician.

35.  The experts were told that the Plaintiff did not have tinnitus before the accident.  However, that is now admittedly not the case.

36.  The Medical Report for Employees’ Compensation dated 3 January 2003 by Yan Chai ENT Department stated that the Plaintiff first attended OPD of Yan Chai on 21 March 2002, complaining of sudden left hearing loss followed by bloody discharge resulted from pricking ear.  Pure Tone Audiogram was normal.  She complained of left ear tinnitus and occasional dizziness on 22 August 2002.  On 2 October 2002, she had dizziness/vertigo.  The doctor noted it was difficult to comment whether the condition was likely or unlikely to have related to the alleged accident as the Plaintiff had dizziness attack before the head injury episode. 

37.  The Joint Report dated 10 March 2006 of the neurologists Dr Robert Ho (for the Plaintiff) and Dr Edmund Woo (for the Defendant), inter alia, noted impaired mental functions (memory and speech slurring).  However, the doctors conducted another joint examination of the Plaintiff on 13 October 2008 just before they gave evidence.  Much in their earlier joint report has been overtaken by the subsequent joint examination.

38.  Dr Ho said that the Plaintiff’s higher mental functions (orientation, memory and recall) had improved significantly since 2006.  Mini-Mental State examination was close to normal.  The only problem was counting backwards.  In any case, Dr Ho said playing music should be least affected as the right brain deals with music and the left brain with mathematics.  She gave very good account of events since the last examination in 2006.  For the memory test, she faulted slightly first but got it right eventually.  Dr Ho opined that with medication by Dr Choa, headache and dizziness improved, and tinnitus had qualitative improvement (lower pitched).  Panic attacks also improved with less frequent hospital attendance.  However, after stopping seeing Dr Choa and taking the anti-convulsion drug (Neurontin), the symptoms came back.

39.  Dr Ho said that HPV is usually a reaction of anxiety and emotional distress triggered by the underlying medical condition (such as the symptoms of headaches, dizziness and tinnitus under PCS).  Dr Ho considered as outdated Dr Woo’s idea that head injury without loss of consciousness is considered mild.  Patients may develop sever PCS even with “mild” head injuries.  By common sense, the symptoms will improve with treatment.  One can also learn to cope with HVS and not dramatize it.  By treating headache (e.g. with Panadol) and psychological help to cope with HVS, the situation will improve.

40.  Dr Ho recommended continual consultation with a neurologist.  He considered the dosages the Plaintiff had received from Dr Choa were low.  He also considered the Valium dosages at times low.

41.  Dr Woo did not differ much from Dr Ho.  He agreed that the symptoms of headache, dizziness and tinnitus were consistent with the type of injury received.  He also agreed that panic attacks were generally emotionally triggered by anxiety and nervousness.

42.  However, Dr Woo disagreed that a head injury could be considered severe (i.e. leaving severe deficit) irrespective of loss of consciousness and post-traumatic amnesia.  From a neurological aspect, mild head injury will leave mild residual deficit.  The Plaintiff had no loss of consciousness and no amnesia as she could recount the accident well.  Her head injury was considered mild. 

43.  Dr Woo considered the Plaintiff had reached a stage that no further medication on a continual basis is necessary.  There is no clinically proven drug for tinnitus.  Some react to Neurontin, others not.  But if the Plaintiff feels relieved by medication, he would not argue with prescription from time to time, albeit as placebo.  The main problem is panic attacks, and the Plaintiff should learn to deal with it with psychological help.  He felt the Plaintiff might have let herself carried away with the symptoms and panic attacks.

44.  The Joint Report dated 2 April 2006 of the psychiatrists Dr Benjamin Lai (for the Plaintiff) and Dr Peter Yu (for the Defendant) also dealt with memory impairment which had been overtaken by events.  Both experts recommended psychotherapeutic sessions (8 to 12) for relaxation and breathing techniques.  Although both experts agreed that the Plaintiff was credible with no impressions of attempting to exaggerate or dramatize, Dr Yu however suggested presence of psychological factors which are histrionic character traits including self-dramatization, theatricality and exaggerated expressions as well as being suggestible.  He considered that psychotherapy will lead to significant improvement (even complete resolution) of HVS within months as she gives up distorted efforts to seek attention.

Plaintiff’s claim

45.  The Plaintiff’s original claim amounted to $13 million, on the basis that she missed an opportunity to advance her career by taking a bachelor degree course in Australia, could no longer pursue her lifelong dream of teaching music to children, and loss of congenial employment as a piano performer.  During cross-examination, it transpired that the HKIE course did include music teaching for children, and the overseas course related to the music industry instead, and she had not taken the prerequisite entry examination of International English Language Testing System (noted she failed English at O Level and got an E at A Level).  Her grades in piano are bare passes and not in the league of performers.  In any case, the Plaintiff agreed that she could be a music teacher for children. 

46.  However, she maintains that the symptoms of PCS and HVS attacks have affected her teaching career so far, and deterioration since April this year will have significant adverse impact in future. 

47.  Madam Chong, proprietress of Grace Piano, said the Plaintiff had 3 seizures in 2 years, and often had to swap classes due to milder attacks.  That affected the number of students willing to learn from her.

48.  Mr Yau, for the Plaintiff, has reduced the claim substantially to about $3.3 million as follows:

Pain & suffering and loss of amenities(PSLA)	$500,000
Pre-trial loss of earnings	$1,082,633
Post-trial loss of earnings	$1,846,800
Special damages	$63,982
Future costs of medical care	$48,250
LESS: Employee’s Compensation	($152,839)
	$3,388,826

Discussion

49.  It is common ground that the Plaintiff had a fall on the head, and experienced headache and dizziness, and less frequently, HVS attacks.  On the other hand, she passed her Grade 8 piano examination, and completed the associate degree in music within 2 years after the accident. 

50.  There was no organic abnormality of the brain.  Tinnitus might be persistent, but the Plaintiff said she had more or less accepted it.  Historically, the other symptoms of PCS (headache and dizziness) have improved substantially under treatment by Dr Choa.  HVS may be viewed as psychosomatic in nature, and the Plaintiff’s prognosis is very positive given further medical and psychological treatment. 

51.  Mr Shum, for the defendant, submitted that given the positive prognosis on HVS, the Plaintiff could work normally as a music teacher, though not very hard.

52.  Although there are objective evidence of panic attacks and convulsions, the onset of HVS attacks, frequency and degree of headache and dizziness, and effect on the Plaintiff’s person and will depend on the Plaintiff’s own account.  There are factual issues the resolution of which will be relevant on the assessment of her condition, which in turn will be an assessment of her credibility.

(1)  When did HVS set in?

53.  The plaintiff said she had very disturbing tinnitus and twitchings and cramps immediately after the accident.  The first medical record relating to HVS was however on 12 September 2005.  Although the admission record of PMH on 7 December 2002 stated suspected HVS, both Dr Ho and Dr Woo said HVS encompasses heavy breathing and cramps, muscle spasms and stiffening.  The medical reports stated no such findings.  Dr Ho said heavy breathing might be confused with HVS.  Be that as it may, the pleadings and witness statements never stated cramps or convulsion immediately after the accident but only later. 

54.  I find that the Plaintiff is exaggerating her symptoms by claiming an earlier onset of HVS.  That will have an adverse effect on her credibility.

(2)  Pre-existing ear injury and tinnitus

55.  The Plaintiff concealed from the experts her pre-existing left ear injury, tinnitus and headache and dizziness.  Under cross-examination, she admitted she had middle ear infection before the accident.  She told the experts she did not have any injury before because she did not regard that as injury.  She said she did not have tinnitus because the tinnitus before was milder and the tinnitus after the accident was louder and of a high pitch like a fax machine.  She could not recall whether she had told the doctor of the ECC board whether she had dizziness before accident, but said even if she had done so, it was nothing special because anyone could have dizziness due to a late night sleep. 

56.  I find that the Plaintiff had lied to the experts on pre-existing ear injury and tinnitus.  Her lame explanation also shows that she is not a forthcoming and reliable witness.

57.  Tinnitus is not the Plaintiff’s most serious complaint.  She said the pre-accident tinnitus was lower-pitched and was less worrying, and that was what she told Dr Choa of the post-accident tinnitus before the alleged relapse in April this year. 

58.  The defendant’s ENT expert, Dr Lee Wai-chung, noted in his report dated 24 January 2006 that the plaintiff’s complaint of mild background tinnitus (sounded like electric noise) which was just noticeable but certainly not disturbing her in any way.  When asked about this, the plaintiff said she could not remember whether she had told Dr Lee so, and later added that she should not have said so.  I see no reason to doubt Dr Lee’s record.

59.  Having regard to the fact that the pre-accident tinnitus, headache and dizziness had not affected the Plaintiff’s swimming and work as life guard, I am inclined to accept that the symptoms before the accident was not too serious.  In any case, she said in evidence that had learnt to cope with tinnitus.  I find that if the Plaintiff continues to receive the medication she had under Dr Choa, the problem will be acceptable.

60.  As to the effect of tinnitus on her appreciation of timbre or tone quality, the experts said it might limit her full potential as a musician.  I note that she failed her aural test in the Grade 7 piano examination (10/18 with pass at 12), but she bettered at the Grade 8 examination (15/18).  Having regard to what I will say on her potential career as a musician, I do not think tone quality will loom large in the overall consideration. 

(3)  Post-accident middle ear infection and loss of hearing

61.  During August to September 2003, the Plaintiff had middle ear infection and temporary loss of hearing. 

62.  At one stage, Mr Shum suggested the possibility of novus actus interveniens breaking causationby the accident.  But physical examination and PTA showed no abnormality and loss of hearing.  I find that this episode has ended with no general effect on the assessment.

(4)  Prognosis

63.  Be it mild or severe head injury and residual deficit, out-dated or up-to-date neurological theory, the fact remains that the Plaintiff has HVS, which is psychosomatic in nature.  The point is whether HVS can be managed or abated, and whether the disruptive effect on her is exaggerated.

64.  Mr Shum pointed out that the plaintiff defaulted follow up at PMH neuro-clinic in 2004, and she defaulted Yan Chai ENT clinic in 2004.  It shows the Plaintiff had recovered well and did not need follow up.

65.  The Plaintiff said the doctor at Yan Chai told her the tinnitus and headache would disappear after a while, so she did not go for follow up.  When the condition continued, she lost trust in the doctor and went to seek Chinese medical treatment in the Mainland instead.   

66.  The fact remains that the Plaintiff had attended hospital and consulted Dr Choa for 2 years notwithstanding she defaulted follow-ups.  The question is how frequent and how serious is her condition.

67.  The plaintiff said she had frequent seizures during her study at HKIE, but the sick bay record shows 3 attendances or so.  The hospital records documented 4 HVS attacks between 2005 and 2007.  Dr Choa’s record also did not show frequent HVS attacks either.

68.  The plaintiff said in evidence that with medication prescribed by Dr Choa, dizziness and tinnitus has improved.  She was experiencing the symptoms about 2 times a month and she could bear with it.  She thought there would not be much more improvement and she ceased seeing Dr. Choa in November 2007.

69.  But she said that after a few months, she experienced the symptoms nearly on a daily basis, and she consulted the present Chinese medicine practitioner.  When asked why she did not go back to Dr Choa or other doctors, she said she was too busy and it cost too much to consult private doctors, and she had to accept the reality.

70.  The Plaintiff is not legally aided, where most probably she is eligible given her means.  She said she did not want to burden her family any more with seeing western doctors.  I fail to see why she would rather not apply for Legal Aid and be hard up on medical fees and suffer on a daily basis.  The only conclusion is that she did not need to see doctor.

71.  Mr Yau reiterated that the medical experts’ opinion is that the Plaintiff seems credible and was not dramatizing.  With the utmost respect, the finding of facts and credibility is the province of the Court.  In this case, the experts were unfortunately not apprised with the facts that the Plaintiff had concealed from them her ear infection and tinnitus before the accident, she was inconsistent on the onset of HVS and convulsions, and the claims were inflated where she had to concede a substantial reduction. 

72.  The Plaintiff’s panic attacks happened before my own eyes.  The first time the Plaintiff attended Summons on 10 October 2008, she had a mild convulsion and had to be helped out of court.  At some stage during cross-examination, her hands started to shake.  Her father asked whether she needed to take a break.  She said she wanted to continue, and answered questions and the trembling stopped.  On a later day, she faced some tough questions and her trembling started again, and she had to stop her evidence and be helped out of court.  The trembling was resolved within a short time after the Plaintiff calmed down and breathed normally.  Of course the panic attacks were not faked.  But I noticed that the Plaintiff could control it on one occasion, but let herself carried away with the panic attack on the second occasion when she thought she was facing difficulties.  I have make known observations.   Dr Woo shared my view, and Dr Yu’s view in the joint psychiatric report is not dissimilar. 

73.  Looking at the records, the HVS attacks happened once a few months, half yearly or longer at times.  Of course, there are bound to be  other less serious episodes without attendance by doctors.  But that really depends on the credibility of the Plaintiff.

74.  From what I have set out above, I find the Plaintiff has exaggerated on the onset of HVS attacks, and the frequencies and disruptive effect of headache, dizziness, and the HVS attacks.

75.  I agree with the experts that with psychological and respiratory therapy, HVS can be managed in the future.

(5)  Future career

76.  Mr Yau pointed out the difficulties in assessing the earning capacity of the Plaintiff as she is just starting her career.  There is also the added difficulty of self as opposed to fixed employment.

77.  The Plaintiff said she had to leave Melocity because she was affected by headaches and seizures so often that she was not productive.  However, the pay record of Melocity did not reflect any (or much) sick leave deduction.  Given my view of her credibility and looking at the medical evidence, I do not accept that she could not hold on to a fixed job.  I find that she would rather develop a career of private piano teaching, supplemented by ad hoc music classes in pursuit of higher income.

78.  As a private piano cum music teacher, Mr Yau pitched the Plaintiff’s notional income high with busy schedules. 

79.  Mr Shum submitted the potential earnings of a self-employed person is in reality limited by one’s level of calibre, ability and experience.  He likened it to the practice at the Bar where the income would vary considerably.  Mr Shum pitched the Plaintiff’s level as mediocre.

80.  I am afraid that I have no crystal ball, and I can only project into the future by looking into the past, and draw comparison from common experience.   There may not be much savour in the task, but I am duty bound to make the assessment.

81.  The plaintiff did not do well academically.  Her grades in piano were bare passes.  She did better at HKIE, but still could not be regarded as with merit.  With respect, judging from the examination results, which may be a good objective guide for professional skills for want of better assessment, I am of the view that the Plaintiff could only be regarded an average music or piano teacher.  The positive prognosis of PCS and HVS would mean not be too much disruption of her work.  Of course, given creativity or entrepreneurship, she might pursue a prosperous career in children’s music education or music industry.  But that is another matter, where there is no suggestion of any incapability as a result of the accident.

82.  By the same token, the effect of tinnitus on her appreciation of timbre or tone quality would not have loomed large as otherwise in the case of the finesse expected of a concert pianist or record disc producer.

83.  With such observations, I shall move on to the separate heads of damages.

PSLA

84.  The Plaintiff’s claim is $500,000.  The Defendant’s answer is $200,000.

85.  Mr Yau referred to my judgment of Yeung Tung Sang v Jamsart Cleaning Service Co Ltd [2004] 2 HKLRD 54where the plaintiff sustained severe head injury from fall with brain damage and was in coma for 4 days with 2 operations, scar and depressed skull, a weak arm, mild cognitive impairment, mild depression and risk of traumatic epilepsy and was awarded PSLA of $450,000.

86.  Mr Yau submitted the pain and suffering might be less than Yeung Tung Sang, but loss of amenities no less, with headache, dizziness and HVS as well as effects on both music and swimming.  Hence, PSLA should be $500,000. 

87.  He also referred to Poon Man Chun v Li Sau Yee HCA 2294/1992 (19 April 1994) per Kaplan Jwhere a lifeguard had a traffic accident resulting in a knee injury.  The knee fracture was fixed with screws, but pain persisted and the screws had to be removed.  There were scars and stiffness to the knee and a slight limp.  Her physical activities included swimming were restricted.  She was unfit to work as a lifeguard and the quality of life was marred.  She was categorized under serious injury and PSLA was assessed at $250,000.

88.  Mr Shum submitted that the claim of HVS attacks by the Plaintiff and her witness is more than that borne out by the medical record.  In fact, tinnitus has become lower pitched.  Headache, dizziness and HVS can be controlled.  The only mental impairment is on counting backwards.

89.  Mr Shum referred to Ip Shuk Hing v Yuen Yuk Wai & anor HCPI 216/1999, [2000] HKEC 920 per DHCJ McMahin (as he then was) (referred to in para. 58 in Yeung Tung Sang) where the plaintiff sustained head injury with haematoma and loss of consciousness mild to moderate cognitive deficit, hairline facture of the knee bone and mild disability of the leg, PCS, mild level of headache, dizziness, Post-Traumatic Stress Disorder and anxiety and insomnia.  PSLA was assessed at $300,000.  He submitted that the present case is less serious than Ip Shuk Hing.

90.  Mr Shum also referred to Chan Wai Leung v Mo Sheung Wah & anor DCPI 166/2001 (8 October 2001) per Carlson DJ and Wong Siu Shan v Tsang Hin Sum DCPI 181/2002 (18 December 2002) per Lok DJ where PSLA for complaints mainly of PCS and headache, dizziness, irritability, poor concentration, memory impairment and anxiety, etc. were assessed at $180,000.  The present case might be more serious and PSLA should be $200,000.

91.  The Plaintiff had symptoms of PCS (headache, dizziness and tinnitus) and HVS attacks, but had exaggerated the frequencies, seriousness and the effect on her person.  Based on more objective evidence (such as sick leaves, hospital and consultation records and her academic progress) and the experts’ prognosis, and taking into account the disability of swimming, I find the award of $350,000 reasonable in the circumstances.

Pre-trial loss of earnings

92.  There are 2 periods under this head:

(1)  During the HKIE course;

(2)  From graduation to trial.

93.  For the first period, the Plaintiff originally claimed that she could teach 53 hours a week on top of her college work, now reduced to 27 hours, as students usually go for piano lessons after school in the afternoon. 

94.  Mr Yau set out the claim for the first period as follows:

$600 per month x 27 x 50% x 24 months = $194,400

95.  For the second period, Mr Yau submitted that with good time management, the Plaintiff could teach piano for 32 hours on top of her work at Melocity.  The Plaintiff could either teach at piano companies (where she would share 50%) of the fees, or teach at home where she would charge higher and take 100%.  Mr Yau put the notional income of piano teaching at $20,800 per month as follows:

(a)  Piano company

$880 per month x 20 x 50% = $8,800 per month

(b)  Teaching at home

$1,000 per month x 12 = $12,000 per month

Total: $20,800

96.  During this period, the Plaintiff actually earned $70,167.  Hence, the loss net of the actual income and tax credit is as follows:

($20,800 per month x 48) - $70,167 – ($10,000 per year x 4)

= $888,233

And the total of the 2 periods is:

$194,400 + $888,233 = $1,082,633

97.  As to the first period, Mr Shum pointed out the average income from piano teaching before and after the accident was $1,200 per month.  To say she could teach 27 hours a week on top of a full time college course is far-fetched and derogatory of the requirements of HKIE.

98.  For the second period, Mr Shum submitted that on the basis that Plaintiff’s claim of the earlier onset of HVS attacks is rejected, the claim is fraught with the problem of proof of causation. 

99.  Mr Shum pointed out the lack of sick leave certificates since 15 September 2004 when HVS was first documented.  Just on this point, perhaps the need for sick leave certificates might not assume more importance for self-employed person where there are other medical records to show medical consultations and hospital attendance.

100.  Mr Shum submitted that Melocity was supposed to be a full time job, and to take 32 students on top seems very ambitious.  He said Grace Piano had about 40 Grade 1 to grade 5 students in total.  Even if all the students went to the Plaintiff, her income would ideally be about $13,000 to $14,000 per month. 

101.  In any case, Mr Shum would pitch the Plaintiff’s income earning capacity at a notch below a qualified primary school teacher, because after graduating with the associate degree, she would still need to do 2 to 3 more years to obtain a bachelor degree and teaching qualification.  The salaries of a primary school teacher are between $16,000 (with increments) to $30,000 per month.  Hence, the Plaintiff’s claim is still inflated even after the revision.

102.  He also criticized the lack of documentary proof such as incomplete salary slips, no tax returns and bank statements to show the actual global income for piano teaching and other music classes. 

103.  Mr Shum submitted that due to the Plaintiff’s general condition of headache and dizziness and occasional HVS attacks, he would concede to 1 sick day per month for the second period as follows:

$600 per month x 25 = $15,000

104.  I have found PCS and HVS were caused by the accident, but the Plaintiff had exaggerated on her condition and the disruptive effects.  Granted there were HVS attacks, yet they would resolve themselves within a short time after calming down and normal breathing.  I have difficulty in accepting that the PCS symptoms and HVS attacks are so serious and frequent to have affected her work to the extent she described.  Madam Chong’s evidence cannot help when the Plaintiff herself is not credible.  I am not satisfied that the Plaintiff’s work have been so disrupted, and that the apparent low income was due to her physical conditions as opposed to demand on her services and/or distorted efforts to pursue her own ends. 

105.  The Plaintiff did consult Dr Choa quite regularly during 2006 and 2007.  Judging from the consultation notes and hospital records, I am inclined to be generous and allow 2 sick days per month as loss of self- employed income is reasonable. 

106.  Hence, I shall award $30,000 for pre-trial loss of earnings.

Post-trial loss of earnings

107.  Mr Yau used the same notional multiplicand of $20,800, with the multiplier of 15. 

108.  Mr Yau submitted for the first 2 years post-trial, the Plaintiff would have a 100% loss, then 75% loss for the 3^rd to 5^th year, 50% loss for the 5^th to 10^th year, and 25% for the remaining 5 years.  The total pre-taxed loss would be $1,966,800.  Applying a tax credit of $10,000 per year, the net loss would be $1,846,800.

109.  Mr Shum reiterated that the expert opinion is that the Plaintiff could be a music teacher.  At best, her claim could be one of loss of earning capacity.  The Plaintiff had claimed $200,000 as such in the Revised Statement of Damages (now overtaken by the revised claim during trial).  Having considered the positive prognosis on HVS, Mr Shum is willing to concede to a modest amount of $50,000.

110.  I agree with the approach of Mr Shum save as to the amount.  I have found exaggeration on the impact of headache and dizziness and HVS attacks.  I accept that the prognosis on HVS is positive with continued treatment and psychological therapy.  But the Plaintiff may need some time fro therapy, and be still affected by some headache and dizziness and need to see doctor from time to time, or even HVS if she were under pressure. Mr Shum also conceded that perhaps she might not work as hard as normal.  I note by comparison the pre-trial losses, but I am sure that the situation will be progressively better.  Doing as best as I can while unable to rely on the Plaintiff’s evidence, I consider the sum of $120,000 as loss of earning capacity is reasonable.

Special damages

111.  The claim is $63,928.  The main problem is lack of receipts, and the neurologist’s fees are estimated to be $35,000.  Other major items included $10,000 for tonic food and $5,000 for acupuncturist.  Mr Shum is willing to concede on $25,300.  Having looked at the medical evidence, I shall allow $35,000 as a reasonable sum.

Future medical costs

112.  The claim is $48,250.  Mr Shum agreed to $21,000 for the psychological treatment, but only such future neurological treatment on a “as and when necessary” basis. 

113.  As HVS is psychosomatic in nature, I shall err on the safe side and include the costs of neurological treatment.  I allow the sum in full.

Summary

114.  The total award is as follows:

PSLA	$350,000
Pre-trial loss of earnings	$30,000
Loss of earning capacity	$120,000
Special Damages	$35,000
Costs of future medical care	$48,250
Total:	$583,250
LESS: ECC award	($152,838)
	$430,412

Interest

115.  Interest on general damages shall be at 2% from the date of the Writ until judgment.  Interest on special damages shall be at half judgment rate from the date of accident until judgment.

Costs

116.  I shall order costs nisi to be paid by the Defendant, to be taxed if not agreed.

117.  Lastly, I thank Mr Yau and Mr Shum for their submissions. 

118.  I wish especially to thank Dr Ho and Dr Woo for agreeing to do a further joint examination on very short notice.  Their assistance to the Court is much appreciated.