CHAN KWUN TAK v. KWOK CHUN FONG

HCPI 676/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.676 OF 1998

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J U D G M E N T

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Assessment of damages

1. In this action, the plaintiff claims damages against the defendant for personal injuries sustained by the plaintiff when he was knocked down by a motor-cycle driven by the defendant on 23 June 1997. The details of that accident is no longer relevant now since the defendant has admitted full liability to the plaintiff. I am only concerned here with the assessment of damages on full liability.

Injuries and treatment

2. The plaintiff was aged 49 at the time of the accident. Because of the accident, the plaintiff had suffered severe injuries to his head and cervical spine, as a result of which the plaintiff suffers from neurological, orthopedic and psychiatric disabilities.

3. After the accident, the plaintiff was admitted to Queen Elizabeth Hospital in an unconscious state. CT scan showed a subarachnoid haemorrhage. The plaintiff was treated conservatively and was transferred to Kowloon Hosptial for rehabilitation on 14 July 1997. At the time he was transferred to Kowloon Hosptial, the plaintiff was still suffering from severe post-traumatic amnesia. He came out of the amnesia only at the end of July 1997, more than one month after the accident. He was discharged from hospital on 31 July 1997. After discharge, the plaintiff continued to receive out-patient rehabilitative treatment from which there was gradual improvement. However, the plaintiff still suffered from serious residual disabilities, complaining of walking instability, lack of dexterity, loss of sensation and strength to his upper limbs.

4. An MRI was performed and showed that the plaintiff suffered from cervical spondylosis. This resulted from a sprain to the plaintiff's neck from the accident.

5. The plaintiff received 79 sessions of occupational therapy at Kowloon Hospital and was prescribed treatments to strengthen his limbs, to train his bilateral hand dexterity and to train his cognitive functions. He also received psychological treatments for his cognitive impairments, as well as psychological counselling for his temper outburst and anxiety. He was granted sick leave until 9 May 2000.

6. In spite of the treatments, that the plaintiff has received, he still suffers from the following disabilities :

(a) Numbness and pain of the upper and lower limbs as well as stiffness of the neck and shoulder. Flexion of his head and neck would sent a lightening sensation down his limbs. The pain and numbness in his lower limb gives him an unsteady and clumsy gait and makes him unable to squat without support.

(b) He still suffers gripping or throbbing headaches frequently which are induced by neck movement.

(c) He no longer suffers from attacks of vertigo, giddiness or near blackouts as before but now has a slight feeling of light-headedness at times.

(d) He used to suffer from a mild degree of slurring in speech which has now improved, but he still finds it difficult to speak efficiently.

(e) He has become absent-minded and forgetful and has poor concentration. His intelligence is affected in that his thoughts are muddled and is slow to react.

(f) His sleeping pattern has improved now but he still becomes tired easily and feels exhausted physically and mentally. He feels a lack of stamina in general.

(g) He is still irritable and short tempered and is depressed about his injury and his future.

(h) He has partial erectile dysfunction.

(i) He has become fearful of traffic and feels very tensed whenever he crosses the road.

7. The plaintiff was examined by Dr Kan Yiu Ting, a neuro surgeon in January 1998 and in December 1999. Dr Kan came to the conclusion that the plaintiff sustained injuries both to his brain and to his cervical spine as a result of the accident. Doctor Kan assessed the severity of the cerebral injury to be of the most severe type based on the length of time of the plaintiff's continuous loss of memory and opined that it is inevitable that serious psychosomatic sequel would result from such injury. Initially, Dr Kan came to the conclusion, after his first examination of the plaintiff, that the combined total impairment to the whole person of the plaintiff from the injuries he received as a result of the accident was 27%. However, after his second examination of the plaintiff and due to some improvement, he reassessed that total impairment to be 24% of the whole person. Doctor Kan also opined that the psychomotor impairments, mainly his cognitive impairments and limb weaknesses, have put an end to his pre-accident job and have made it unlikely for him to secure another job because of his age and lack of vocational training. In theory, however, he assessed the loss of working capacity to be 30% on the basis that in theory the plaintiff should be able to work as a janitor, office assistant or messenger.

8. The plaintiff was also examined by Dr Chung See Yuen, a psychiatrist, on 8 July 1998. The conclusion that Dr Chung came to after the examination was that the plaintiff was mentally normal before the accident but is now suffering from two mental disorders being a post-concussional disorder and a post-traumatic stress disorder. As for the post-concussional disorder, Dr Chung puts this down as a result of the significant cerebral concussion sustained by the plaintiff during the accident, and which manifested itself with symptoms of difficulty in attention, poor memory, headaches, dizziness, irritability and depression. Doctor Chung opines that this disorder is directly caused by the head trauma and it is likely that this disorder would be permanent and that further improvement of the symptoms will be slight. As for the post-traumatic stress disorder, this manifests itself in a form of fear of cars and bad dreams related to the traffic accident. The symptoms are directly caused by the trauma of the injury and the resultant problems which Dr Chung opines will often improve with time and these symptoms will gradually get better but will not subside completely. Doctor Chung further states that they will continue for some years to come.

9. The plaintiff was also examined by Dr Danny Tsoi in August 1998, an orthopedic specialist. He came to the conclusion that the plaintiff suffered from a head and neck injury during the accident but that his report deals only with the neck injury. Doctor Tsoi commented that it is difficult to differentiate whether the plaintiff's neurological impairments affecting his limbs relates to his head or his neck injury, but that he can only estimate that half of the symptoms relating to the plaintiff's limbs were attributed to the neck injury. Doctor Tsoi further stated that X-ray revealed moderate degree of multiple levels of degenerative changes over the cervical spine, and this led him to the opinion that the cervical spondylosis was pre-existing and degenerative in nature. However, but for the sprain injury to the plaintiff's neck due to the accident, the neurological symptoms relating to his limbs would not have surfaced. This opinion was shared by Dr Kan as well.

10. Lastly, the plaintiff was also examined by Dr George Koo, an urologist. After examining the plaintiff, he concluded that the plaintiff's sexual impairments are related to his head injury suffered at the accident.

Pain, suffering and loss of amenities

11. It was agreed between the parties that damages under this head should be in the sum of $650,000. In the circumstances, that would be the award under this head.

Pre-trial loss of earnings

12. There is no dispute that the plaintiff's basic salary at the time of accident was $11,700 per month and that he also received tips averaging $200 per month. Furthermore, the plaintiff gave evidence that he received four free meals each day that he performed his work. The defendant has submitted that these free meals received by the plaintiff at work should not be taken into account in assessing his pre-accident earnings. The four free meals received by the plaintiff is clearly a benefit associated with his pre-accident job. If authority be needed for this to be taken into account in assessing damages, in the case of Harding v. Watts Tyre & Rubber Co. Ltd, Hollis J awarded ￡3,028 for loss of benefits which included the plaintiff receiving free milk and other farming produce associated with his employment (see Kemp & Kemp Vol.1 5-125 footnote 3). Taking into account, the four free meals provided to the plaintiff in his pre-accident work, I assess his pre-accident earnings to be $14,000 per month.

13. But for the accident, the plaintiff would most likely have continued in the same line of work. The plaintiff gave evidence which I accept that colleagues who are working with him or under him before the accident were now earning between $14,000 and $17,000 per month. I have also been referred to Government statistics by both counsels in an attempt to fix what would have been the likely earnings of the plaintiff today. However, those statistics that I was referred to concerned the earnings of a chief cook, a cook and a junior cook, either in a Chinese restaurant or in a fast food shop. These statistics are not directly relevant since the plaintiff worked as a roast meat worker or supervisor of roast meat. I rather prefer the evidence of the plaintiff which is directly relevant to the earnings of a person doing that type of work. From that evidence, I would use $16,000 as the present day earning of the plaintiff had there been no accident. Therefore, the median for assessing pre-trial loss of earnings is $15,000.

14. The plaintiff was granted sick leave by Government doctors up to 9 May 2000, i.e. 34.5 months since the accident. The reasonableness of this period of sick leave was challenged by the defendant who obtained from Dr Kan, in cross-examination, the fact that Dr Kan would consider 2 1/2 years after the accident as a reasonable period of sick leave to this plaintiff. On this basis, the defendant submits that the period of sick leave for this plaintiff should be 30 months. However, in giving that answer in cross-examination, Doctor Kan made it very clear that the 2 1/2 years which he considered to be a reasonable period of sick leave was on the basis that two and a half years after the accident, he would not expect any further improvements in the plaintiff, and if by then the plaintiff was unable to return to his pre-accident work, the plaintiff should cease his pre-accident employment and therefore there was no further necessity to grant to the plaintiff sick leave any more. On that basis, Dr Kan said that the termination of sick leave after 2 1/2 years does not necessary mean that the plaintiff was fit to return to work. In the circumstances, I have no hesitation in awarding to the plaintiff full loss of earnings for the entire duration that sick leave was granted to him, namely, for 34.5 months from the date of accident. This amount therefore comes to $517,500.

15. Another four months elapsed between the end of sick leave until the trial of this matter. In so far as these four months are concerned, first of all, I note that Dr Kan in his medical report commented that the impairments to the plaintiff have made it unlikely for him to secure another job because of his age and lack of vocational training. The plaintiff himself also gave evidence that as late as last month, he was still attempting to secure some alternative employment. In fact, he had taken on work in a kitchen but because of the residual disability resulting from the accident, he broke plates, fell down and even bumbed into a customer. Not surprisingly, after two days at this job he was sacked. In the circumstances, it is not unreasonable that the plaintiff should be given time in order for him to secure some form of alternative employment to which he would be suited. In my view four months would be reasonable for this purpose. Accordingly, I would also assess these four months between the end of sick leave and the trial at full loss of earnings which will come to an extra $16,000.

16. The total pre-trial loss of earnings therefore comes to $577,500.

Future loss of earnings

17. In so far as future loss of earnings is concerned, the parties have agreed that a multiplier of 8 should be adopted in this case. As for the multiplicand, I will use as a starting point the amount of $16,000, being the salary that the plaintiff would be earning today had it not been for the accident. The general consensus amongst the doctors seemed to be that although the plaintiff cannot resume his pre-accident work as a roast meat worker or supervisor, he is nevertheless able to take on some form of lighter work which would not require him to be lifting anything heavy or on his feet for too long a time. There is evidence from the plaintiff that he was offered a post of a caretaker at a salary of $4,500 per month. On the other hand, defence counsel has referred to Government statistic showing that such lighter form of alternative employment would pay in the region of just under $8,000 per month. I take the view that in his present condition, the plaintiff will not be able to earn more than $6,000 per month in any form of alternative employment to which he may be suited in the state that he is in. I would therefore use a multiplicand of $10,000. This will give a total for future loss of earnings in the amount of $960,000.

Loss of earnings capacity

18. In the present condition that the plaintiff is in, coupled with the medical opinion generally from the doctors that his condition will not further improve in future, there must be a real likelihood of the plaintiff being at a great disadvantage in the labour market. The claim by the plaintiff for loss of earnings capacity is in the amount of $108,000, whilst the defendant is only prepared to concede $47,000 under this head. Based on the notional or expected earnings by the plaintiff in some other form of alternative employment generating $6,000 per month, the claim under this head for $108,000 would translate to mean 18 months earnings at that salary. That, in my view, is not unreasonable considering that the plaintiff has at least 10 years of working life remaining, possibly even 15. I would therefore assess damages under this head in the amount as claimed by the plaintiff, namely, $108,000.

Special damages

19. Special damages are agreed between the parties in the amount of $54,629.20 and this amount will be allowed.

Future medical expenses

20. Under this head, the plaintiff claims firstly the amount of $43,200, being 10 years supply of Viagra treatment for his sexual dysfunction at the costs of $360 per month. This treatment was recommended by Dr George Koo, the neurologist. However, in so recommending this treatment, Dr Koo had failed to make clear in his report as to the length of such treatment. Dr Koo merely recommended treatment with Viagra at the costs of $360 per month. If the plaintiff wishes to base his claim on such treatment for a period of 10 years, the onus is upon the plaintiff to prove that such period is reasonable. The defendant, on the other hand, has submitted that in the absence of any such evidence that 10 years' treatment is called for, the defendant is only prepared to concede the costs of treatment by Viagra for one year. I agree with the defendant that the plaintiff has failed to prove on balance that such treatment for a period of 10 years is reasonable. Accordingly, I would only allow $4,320, being the costs of treatment by Viagra for the period of one year.

21. Secondly, the plaintiff also claims for the amount of $4,800, being four sessions of psychological counselling as recommended by Dr Chung See Yuen at the costs of $1,200 per session. This having been recommended by Dr Chung and in accepting that evidence and the fact that four sessions of such counselling is reasonable in the circumstances, that amount claimed by the plaintiff will be allowed, namely $4,800.

Interest

22. Interest will be allowed on general damages for pain, suffering and loss of amenities at the rate of 2% per annum from the date of writ until judgment. Interest on pre-trial loss of earnings and on special damages will be awarded at the rate of 5.99% (being half judgment rate) from the date of accident until date of judgment.

Summary

23. The total amount assessed therefore comes to :

Order

24. The defendant do pay to the plaintiff the amount of damages and interest assessed at $2,509,085.13. There will be a costs order nisi that the defendant do pay the plaintiff the costs of the assessment, to be taxed if not agreed.