LEUNG TAK YAN v. YIP KAM HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1161 OF 1998

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DECISION ON ASSESSMENT OF DAMAGES

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Background

1. On 18 May 1997, the plaintiff was knocked down by the defendant's car when she was waiting for a bus at the Lion Rock Tunnel Road. She suffered a minor head injury and fracture of the right tibia and fibula. She was aged 43 at the time of the accident and will be 46 on her next birthday this February.

2. The writ herein was issued on 9 November 1998. By consent, judgment on liability was entered against the defendant on 13 May 1999 with damages to be assessed.

3. At the time of the accident, the plaintiff was working as a cleaner of toilets in a shopping mall. She had been employed in this job since September 1994. Her employment was terminated by her employer shortly after the accident. Her monthly pay at that time was HK$4,200.00.

4. The plaintiff had meningitis at the age of 2 or 3. This had affected her intellectual development. She is illiterate. Due to this childhood illness, she has also developed residual weakness of her right upper and lower limbs. Notwithstanding her pre-existing condition, the plaintiff could still walk independently in a limping gait, and had been working at various unskilled jobs for more than 10 years. She is married with 3 grown up children. Her husband has retired.

Injuries and disability

5. The plaintiff was admitted to the Prince of Wales Hospital with a short duration of loss of consciousness. She was initially observed in the neurosurgical ward and later transferred to the orthopaedic ward. On 21 May 1997, she had an uneventful operation to close reduction and intra-medullary nailing of the fractured tibia. She was discharged home on 2 June 1997 after about 2 weeks in hospital.

6. Thereafter, the plaintiff attended the out-patient department of the Hospital for physiotherapy. After 59 sessions, her physiotherapy treatment was stopped in April 1998 because progress was static for months. The plaintiff had also consulted a private general practitioner on more than 20 occasions between June 1997 and February 1999, mainly for pain at the injury sites and to obtain relief from analgesic and anti-inflammatory drugs. In between that period, she had also received treatment from 2 bone-setters on 8 occasions.

7. On 3 January 1999, the plaintiff was re-admitted to Hospital for an operation to remove the implant in her right leg. The fracture had united in a satisfactory alignment. She was discharged home 2 days later.

8. Sick leave was granted to the plaintiff from 18 May 1997 to 7 April 1998, 28 July 1998 to 3 January 1999, 22 January 1999 to 19 March 1999, and from 19 March 1999 without a break to 10 March 2000. The plaintiff has not worked since the accident.

9. When the plaintiff was examined by her medical expert Dr. Lam Kwong Chin on the 2nd occasion in June 1999, she was not using a walking stick although she wore a drop foot splint on the right leg (which she still wears at the hearing). She could walk without aid and she has said in her evidence that she has formed the habit of going for a morning walk for about an hour every day. Dr. Lam found there is shortening of the right leg by 1 cm, marked muscle wasting from right calf downwards, loss of dorsi-flexion of the right foot, and some loss of inversion of the right foot. The plaintiff still had attacks of pain at the fracture site with spasms in the right leg when she was examined in the summer of 1999.

10. An additional problem which was only noticed by Dr. Lam when he examined the plaintiff on this subsequent occasion is the back pain. From the X-rays taken of the lumbar spine, old compression fractures of T12 and L4 vertebrae were noted, marginal osteophytosis was observed at L3-L5 vertebrae, and disc space at L3/4 was narrowed. Having considered the report of the general practitioner who had examined and treated the plaintiff 2 weeks after the accident, Dr. Lam is of the opinion that the accident had also caused the compression fractures of T12 and L4 vertebrae. I accept his evidence on this. Dr. Lam has also found that the back injury was not associated with neurological deficit, and the back movement is satisfactory. He assessed the impairment attributable to this injury at 5% of the whole person. The defendant's expert, Dr. Philip Mao, has also accepted that this is a fair assessment although he has not expressed any views whether the back injury was caused by the accident.

11. On the degree of permanent impairment arising out of the plaintiff's orthopaedic injures in the accident, Dr. Lam has assessed this at 13% of the whole person, whereas Dr. Philip Mao has assessed this at 6% of the whole person. The apparent disparity in the assessment is not irreconcilable, as Dr. Mao did not make any investigation of the plaintiff's back injury and had not taken this into account in his assessment.

12. The plaintiff was also examined by a psychiatrist Dr. Chung See Yuen in July 1998. She had complained of occasional headaches, dizziness, insomnia and poorer memory. Dr. Chung found that it is difficult to gauge the impairment on her cognitive functioning that may be attributable to her injury in the accident as the plaintiff's intelligence was low prior to the accident on account of her childhood illness. He is, however, convinced that the plaintiff has suffered mild to moderate impairment in her activities of daily living, social functioning and adaptation as a result of her injury in the accident. I accept that the plaintiff has suffered a minor degree of disability on account of post-traumatic symptoms, for which Dr. Chung has recommended 10 sessions of psychiatric treatment. However, I have reservations whether the plaintiff's disability in this respect would be as much as 20% impairment of the whole person as assessed by Dr. Chung. Dr. Chung was unable to refer me to any authoritative guide for his assessment.

Pain and suffering and loss of amenities

13. It is accepted by the plaintiff's counsel, Miss Eliza Yiu, that the plaintiff's injuries and disabilities do not come within the "serious" injury category. Miss Yiu would place the plaintiff's injury at about 75% of the bottom of the serious injury award and seek HK$400,000.00 under this head. The defendant's counsel, Mr. Daniel Chan, has argued that the plaintiff's injury should be placed at 50% below the serious injury category and suggested an award of HK$200,000.00.

14. Of the cases cited to me by counsel, I am of the view that the plaintiff's injuries and disabilities are clearly less serious compared to the plaintiffs in Chung Wing Kwong v. Leung Kam Fai [1991] 2 HKC 625, Master Bokhary, 18 December 1991 and in Lee Kwan Tong v. Liu Yee Lim & Anr HCPI No. 1383 of 1996, Master Chu, 8 April 1997. I would regard her injuries as closer in severity to those of the plaintiffs in Chan Kui v. Lee Fai HCPI No. 126 of 1995, Master Chung, 17 February 1997 and in Cheung Ping v. Pak Kee Transportation Co. Ltd. & Aur HCPI No. 963 of 1997, Suffiad J., 3 July 1999.

15. I do not accept the submissions of the plaintiff's counsel that the lowest figure of a serious injury award should be increased to HK$532,400.00 to take into account inflation since the decision of Chan Tak Chi v. Wong Siu Tao [1998] 4 HKC 16, Master Cannon, 18 August 1998, wherein it was held that awards at the lower end of the serious injury category in July 1998 should be HK$480,000.00. In the decision of the Court of Appeal in Chan Chi Shing v. Tsang Fook Metal Engineering CACV No. 238 of 1999, 21 December 1999, Keith J.A. expressed the view that 15% inflation on the figure at the lower end of the serious injury category is "not unreasonable" since 3 ½ years had elapsed between the first instance decision of Chan Pui Ki v. Leung On & Aur [1995] 3 HKC 732 and the trial of the case in question in 1998. In Choy Chung Shing v. Ng Hon Chun HCPI No. 201 of 1998, Master Barnes, 14 January 2000, after considering the actual inflation rates according to the Composite Price Index for 1997 and" 1998, it was held that the bottom figure for the serious injury award would be in the region of HK$436,000.00. In Tse Hing Wan v. Choy Yuen Keung & Ors HCPI No. 889 of 1998, Chung J, 24 January 2000, the Court accepted the submission that there should be no increase to such awards for inflation since 1998.

16. I am of the view that the figure of HK$532,400.00 put forward by the plaintiff's counsel as the starting figure of the serious injury award is too high. I would use a figure of HK$480,000.00 as the starting figure and work backwards. My assessment of an appropriate award under this head is HK$380,000.00.

Pre-trial and future loss of earnings

17. It is not disputed that but for the injuries in the accident, the plaintiff could have continued to work as before notwithstanding her the pre-trial period and for the rest of her working life.

18. I do not propose to make any adjustment to the plaintiff's monthly wages of HK$4,200.00 in May 1997 as submitted by the plaintiff's counsel. I note from the figures provided by the Labour Department that the average monthly wages of a cleaner for a job through the Selective Placement Division in 1999 amounted to HK$4,436.00, which is about the same as the plaintiff's pre-accident earnings. It is not appropriate to make any deduction for salaries tax as suggested by the defendant in view of the low salary.

19. I calculate the pre-trial loss of earnings from 1 June 1997 (when the plaintiff's employment was terminated) up to February 2000, a period of 33 months. The award is HK$4,200.00 x 33 = HK$138,600.00.

20. For future loss of earnings, the plaintiff's counsel has proposed a multiplier of 10 years whereas the defendant's counsel has offered 8 years. In view of the plaintiff's pre-existing right upper and lower limb weakness, I think she should be treated as having a shorter working life and I accept the defendant's submissions that a multiplier of 8 years would be appropriate in the circumstances. The award for future loss of earnings is HK$4,200.00 x 12 x 8 = HK$403,200.00.

Loss of earning capacity

21. As I have made an award for future loss of earnings on the basis of a total loss, there will be no award under this head.

Future medical treatment

22. An amount of HK$25,000.00 is claimed on the basis that Dr. Chung See Yuen has recommended that the plaintiff should have psychiatric treatment of 10 sessions and the cost of such treatment in the private sector was estimated at HK$2,500.00 per session.

23. I disallow this item. Firstly, Dr. Chung has testified that such treatment is available in public hospitals and the plaintiff has been receiving treatment all along in a public hospital. The cost per consultation in public hospitals would be only HK$44.00. Secondly, I form the view that it is unlikely the plaintiff would attend psychiatric treatment. In her witness statement, she stated that she has not started such treatment because she has no money. In Dr. Chung's report, it is recorded that the plaintiff "did not like treatment as it would be troublesome".

Tonic food

24. The plaintiff claims HK$11,200.00 for expenses of tonic food for about a year. A receipt for the purchase of ginseng and antler in November 1997 in the sum of HK$3,200.00 was produced. I am of the view that the period for consumption of tonic food is too long in the circumstances. I will allow a sum of HK$5,000.00 as reasonable expenses under this head.

Agreed items of special damages

25. Medical expenses are agreed at HK$12,846.00, travelling expenses at HK$5,290.00 and damaged items in the accident at HK$1,630.00. The total amount is HK$19,766.00.

Interest

26. I award interest on general damages for pain and suffering and loss of amenities at 2% p.a. from the date of the writ in November 1998. The amount awarded is HK$380,000.00 x 2% x 2.3 years = HK$17,480.00.

27. I award interest on special damages at 5.75% p.a. from the date of the accident in May 1997. The amount awarded is (HK$138,600.00 + HK$5,000.00 + HK$19,766.00) x 5.75% x 2.8 years = HK$26,302.00.

28. The total awarded for interest is HK$43,782.00.

Summary

29. I summarize the awards I have made as follows:

30. I make an order nisi that the plaintiff is to have the costs of the assessment of damages, to be taxed if not agreed, with a certificate for counsel. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. The order nisi will be made absolute after 14 days.