TANG KA WAI ALEX v. CHAN WAI KIN

HCPI 1335/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1335 OF 2003

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J U D G M E N T

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1. This is an action for personal injuries, damages, liability for the injuries is not at issue.  At issue are questions of damages including the extent of the injury.

The accident

2. The plaintiff, Mr Tang Ka Wai Alex, was aged 26 years at the date of the accident, which occurred on 26 September 2002.  On that date, the plaintiff was driving from Tate’s Cairn Highway along a slip road when the defendant driving his private car along the Shek Mun Interchange in the direction of Ma On Shan, entered the same one-way slip road of Tate’s Cairn Highway from a prohibited direction.  He was tired and failed to observe the road sigh prohibiting entry and drove along the slip road to where he collided head on with the vehicle driven by the plaintiff.  The plaintiff’s car was a write-off and the plaintiff suffered injuries to his neck and left knee and he was admitted to Princes of Wales Hospital for treatment.  He received internal fixation for his neck which was immobilised with a collar for a month.  He was hospitalized for 15 days.  A physical examination at the hospital indicated tenderness over the cervical spine, with no neurological deficit.  He also suffered an 8-cm deep laceration over the left knee with some bone loss.  He was operated in respect of his neck injury and an open reduction posterior fusion with bone grafting and the wiring of C3/4 and was performed for the neck injury.  The knee injury was sutured.

3. A writ has been issued in respect of the damages suffered by the plaintiff.  On 4 May 2004, judgment on liability was entered for the plaintiff against the defendant, together with the costs of the action to that date and with damages to be assessed.

4. Before the accident, the plaintiff was employed by Leighton Contractors (Asia) Ltd as a quantity surveyor with a monthly salary of $18,679.17, which included a base salary of $14,150.00, with a housing allowance of $2,850.00, and a first-aid allowance of $500.00 per month with a double pay at the end of the year.

5. As to the date of this hearing the plaintiff still remains employed by the same employers and from 1 April 2004 his salary was a sum of $21,000.00, being as to $17,500.00 per month basic salary, housing allowance of $3,500.00 a month, making a total of $21,000.00.  The sum of $17,500.00 includes $500.00 as a first-aid allowance.  He also still receives a bonus at the end of the year of one-month salary.

6. After his release from hospital, the plaintiff received 40 sessions of physiotherapy treatment and 14 sessions of arthroscopic examination and orthopaedic treatments.  He still receives some follow-up physiotherapy and arthroscopic examinations and orthopaedic treatment.  It is noted in his follow-ups at Prince of Wales Hospital that there was some neck and left knee pain and that neck movement were almost full and that there was some mild limitation on the left knee action.

7. Dr Au Ka Kau who prepared a report in respect of the plaintiff’s medical condition on 25 June 2003 examined the plaintiff.  Dr Au noted that the plaintiff complained of two to three episodes of neck pain at day.  Each episode lasting for about one minute with the neck pain increasing in rainy weather.  He claimed to become tired easily after the injury and needed rest after working for about an hour.  He related episodes of left upper limb numbness which occurred once a week and lasted for about one minute.  He complained of left knee pain, which occurred in the morning when he got out of bed. Jogging also caused left knee pain.

8. The posterior fusion of the neck would be compensated by increased mobility of the adjacent segments of the neck but the stress of the adjacent segment would be increased and would increase the risk of osteoarthritis in the adjacent segments.  Dr Au found that the muscle wasting at the left calf, as a percentage of body impairment was 2% and that the neck injury resulted in a body impairment of 25%.  He found the total body impairment by combining both percentages to be 27%.

9. In addition to the damage caused to the neck and to the left knee, the plaintiff claims a psychological impairment in that he now is unable to drive a motor vehicle.  It is his claim that the accident, which was a head-on collision, caused such fear in him concerning the driving of a motor vehicle that he was unable to do so. He has sought psychological treatment in respect of this problem.  In addition to the psychological problem of being unable to drive, the plaintiff in his evidence also testified to an inability to turn his neck to the left sufficient to safely drive a motor vehicle.  This is an allegation raised in his evidence and not dealt with in the statements he made prior to trial.  This evidence is supported to some degree by the statement of Dr Au, who reported that lateral flexion to the right involving the neck is 40 degrees while lateral flexion to the left is 30 degrees.  Rotation both to the right and the left are the same at 60 degrees.

10. Giving that turning the head to the left involves rotation rather than flexion, the claim by the plaintiff not to be able to turn his head and therefore it being dangerous to drive is supported only in a minor way by the report.

11. I also note that the first visit to a psychologist to deal with the problem of being unable to drive was on 15 December 2003, some 15 months after the accident and that the plaintiff attended a total of three sessions.  In his report, clinical psychologist Nadasa Liu gave her opinion:

“Mr Tang suffered from post traumatic stress disorder and persistent neck pain.  He had frequent flashback and avoidance behaviours.  He was vulnerable to hyper-arousal when he passed by the scene of the accident.

Though he maintained his work as a quantity surveyor, he found it increasingly stressful as he still had fear to drive to different outdoor sites….”

12. I must view the evidence of the disability suffered by the plaintiff in respect of his inability to drive in the light of the fact that he clearly did not require treatment until some 15 months after the accident, although he says he was unable to drive during that period He has attended only four sessions at the psychological outpatient clinic at Pamela Youde Nethersole Eastern Hospital.  He testified in respect of his inability to drive that he had attempted to do so in a car park but found that he was unable to cope mentally with the task.

13. It is his evidence that the loss of his ability to drive makes it difficult for him to be employed in his occupation as a quantity surveyor as outside work and visiting sites requires the use of a driver which will make his prospects of employment in the future more difficult given that he has to be driven.

14. On the other hand, it is argued by the defendant that the work of a quantity surveyor is to a great extent mental rather than physical and that since the accident he has not only been continually employed but has had increases in salary.  The defence argues that employment indoors without having to drive is available to a quantity surveyor.

15. Pain and suffering and loss of amenities

          Both parties accepted the principles set out in Fu Yuk Ming v. Lee Fook Choi and another [1975] HKLR 250 that:

“The injuries should be considered as if they were one.  It would be wrong to consider the injuries individually and to apportion a sum for each one.”

16. The injuries to the plaintiff are to the neck and to the knee and a psychological injury involving his inability to drive.  Before the accident the plaintiff was a Karate enthusiast having reached a relatively high level in that discipline.  It is urged upon me that he was shortly before the accident still involved in that sport at a high level.  I note that his annual subscription for the Karate club of which he was a member expired in December 2000 and that the last tournament he participated in was in February 1999.  While I accept he still may have an interest in this sport and no doubt practises it from time to time as he testified, it does not appear that he was a serious participant in any competition nor a club member for some time prior to the accident. His participation in this sport is a factor to take into consideration but it is not a factor, which looms large in the calculation of damages.  The injuries have not prevented the plaintiff from returning to his pre-accident employment.

17. I am not satisfied that the inability to drive is as severe as made out by the plaintiff.  I am only satisfied that he may have some reluctance to drive. 

It is clearly impossible on the cases to work out any table that will result in a mathematical calculation under this head.  Taking into account the cases that have been referred to me, the arguments of counsel and the evidence I have heard in respect of this head of damage, I award the sum of $350,000.00. 

17.    Trial loss of earnings

The award for pre-trial loss of earnings is agreed in the sum of $10,128.00.

18.    Loss of earning capacity

This head of damage is to “cover the risk that at some future date during the claimant’s working life he will loss his employment and will then suffer financial loss because of his disadvantage in the labour market” (Chan Wai Tong v. Li Ping Sum [1985] HKLR 176).  The plaintiff holds a bachelor degree (Hons) in quantity surveying.  He has been working as a quantity surveyors since 1999 shortly after his graduation.  He has been working for his present employer, Leighton, since September 2000 until today.  As I have set out earlier, his salary has increased since the date of the accident.

19. I accept the plaintiff’s evidence that he works on a contract basis and it is apparent that he does so for the one employer.  I do not accept that there are any similarities between his employment and casual employment. He is employed generally by the company with a requirement that he works on such projects as directed by the company during his contract although he is directed to start at a particular worksite initially in each of the two letters of employment he produced. Whilst I accept that his employer may place the plaintiff under a new contract from time to time, I do not accept that his position is akin to a casual worker who may need to look for a new job on a regular basis.

20. Given his record of employment with Leighton for whom he has worked since 1999, I also do not consider that there is a real risk that the plaintiff will lose his present job in the near future, and find that in all the circumstances should he do so, it would be only as a result of the economic situation not because of his disability.

21. The plaintiff in his evidence said that his limitations in respect of his employment were his inability to drive and the fact that he is tired when standing.  Whilst I accept that due to his accident there may be some distress to the plaintiff when he attempted to drive, I am not satisfied either from the psychological report or the evidence of the plaintiff this is more than a disinclination to drive.  It is clear from his evidence that he now works effectively as a quantity surveyor without having to visit sites on a frequent basis.  He infers in his evidence that he is performing tasks of a lesser nature than before the accident, but even if this is so, it clearly has not affected the terms of his employment nor the salary that he receives.

22. The first question that must be asked is “is there a substantial or real risk that the plaintiff will lose his present job at some time before the estimated end of his working life?” (Chan Wai Tong v. Li Ping Sum supra). The answer to this question must be “Yes”.  Given the nature of the work that he does, he is dependent upon the amount of construction work being carried out in Hong Kong by his present employer.  All persons under contract such as the plaintiff must be at some risk of becoming unemployed and I would be prepared to accept that as substantial in the sense that the company he works for may no longer exist here at some point and may not have the work for him during the long period he has left in his working life.

23. The second question is “if there is, what is the value of the risk of the financial damage which the plaintiff will suffer if that risk materializes, having regard to the degree of risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.” (Chan Wai Tong v. Li Ping Sum supra).  Given the nature of the injuries and the disability that the plaintiff suffers compared with the nature of his work and his ability to continue with that work as it has been demonstrated by the fact that some years have passed and he still has the same employment at a higher salary, I do not think that there is any substantial risk that should he lose his employment, which I find would not be as a result of the injuries that he had suffered, his chances of obtaining further employment would be affected by the injuries he sustained in this accident.  I award no damages on this head.

24. Special damages

The plaintiff claims tonic food and traditional Chinese medicines in the sum of $11,998.00.  Receipts supported that for the nourishing food but none are presented for the medicine.  Consumption of these items appears to have commenced some four months after the accident, there is no evidence as to how effective they might have been or could be in respect of the injuries he suffered and consumption continued over a period of 15 months and 7 days.  In Law Hing v. Leung Tin Kan & Another [1989] 1 HKC 572, it was held that amount awarded must be reasonable and appropriate.  In respect of this item, I consider the sum of $8,000.00 to be a proper figure.

25. In respect of medical expenses, the claim as submitted by the plaintiff during the hearing was to a sum of $4,058.00 together with the costs of reports obtained and in respect of the condition of the plaintiff, the purposes of this hearing.  Miss Tsang for the defendant argues that the cost of those reports should be a disbursement in respect of the preparation of this matter.  With this I agree.  The damages in respect of medical expenses are the sum of $4,058.00.

26. Travelling expenses are claimed in the sum of $8,500.00.  The plaintiff testified as to various trips made by taxi and otherwise to various hospitals and, in his evidence, claimed a total of 26 trips by taxi at $150.00 and 23 trips by bus at $40.00.  This is a total sum of $4,820.00 and I will allow the sum of $4820.00 under this head.

27. The fees of towing charges for the plaintiff’s vehicle at $1,715.00 and the survey fee for his vehicle at $750.00 are allowed.  I award the sum of $55,000.00 in respect of the lost of the plaintiff’s vehicle.

28. A claim was also made for alterations made to the vehicle prior to the accident.  These alterations and improvements to the vehicle existed at the time of the accident and would form part of the pre-accident value determined by the loss assessors.  I make no award under this head.

29. The plaintiff has continued to pay the hire purchase payments outstanding in respect of the vehicle and will continue to do so until the vehicle has been paid out.  There was apparently no insurance, which would compensate him for its loss covering the vehicle at the time of the accident.  There will be the sum of $6,975.00 under this head. 

Loss of clothing and spectacles $800.00. 

Miscellaneous expenses $500.00.  The total under this head of damages is $82,798.00.

30. Pre-trial loss of earnings

Agreed at $10,696.67.

31. Estimated future loss

The plaintiff further claims as his estimated future loss 24 sessions of physiotherapy treatment, 10 sessions of arthroscopic and orthopaedic treatments, 10 sessions of psychological treatments and travelling expenses for those at the sum of $50.00 per treatment, in all the sum of $4,840.00.  I award that sum under this head.

32. Damages are therefore assessed as follows:

PSLA	$350,000
SPECIAL DAMAGES
Tonic foods and traditional medicine	$   8,000
Medical expenses	$   4,058
Travelling expenses	$   4,820
Towing and survey fees	$   2,465
Loss of vehicle	$  55,000
Interest	$   6,975
Miscellaneous expenses and loss of clothing	$   1,300
Pre-trial loss of earnings	$  10,696.67
Total	$  443,314.67

33. There will be interest on general damages at 2% per annum from the fate of the writ to the date of Judgment, and interest on special damages at half Judgment rate from the date of the accident to the date of Judgement.

34.  The plaintiff will have his costs on assessment. He has already had his costs on Judgement.