FRANCINE LOUISE COLLINS v. THE STAR FERRY CO. LTD.

HCPI 491/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 491 OF 2000

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ASSESSMENT OF DAMAGES

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1. On 23 August 1998 the plaintiff was travelling from Tsim Sha Tsui to Hong Kong with her husband and her husband's aunt on board a Star Ferry, the 'Golden Star', owned by the defendant. The plaintiff was also travelling with her infant son who was in a pram. They were travelling on the 'Golden Star' on the lower deck and were seated on the western side of the vessel. The plaintiff sat on the end of a pew. Her infant son Lloyd was strapped in his pram which was parked next to her facing the back of the boat. As the ferry pulled into the Central pier and proceeded to dock the passengers were getting ready to disembark the ferry. The plaintiff and her party stood up and got out from their seats. She stood up and stepped towards the pram and started to release the brakes. Suddenly without warning she saw something coming towards her and the next thing that she could recall was that a large tyre used by the Star Ferry as a fender had landed heavily on her left shoulder and forced her head to the right. The tyre went down from her shoulder and onto the top of the baby's pram crushing the hood. The plaintiff feared that her baby had been badly injured or even killed and she enquired whether he was alright. She became hysterical when she heard someone say "no". It took several minutes before she was assured that although the hood of the pram was crushed the baby was unhurt and was fine. The tyre had rolled down from her shoulder along her arm and crushed the hood of the pram.

2. Liability has been admitted. By an interlocutory judgment dated 27 June 2000 it was adjudged that the defendant do pay the plaintiff damages to be assessed. This is the hearing of the assessment of damages.

3. I heard evidence from the plaintiff, her husband Mr Craig Collins and experts called on behalf of the plaintiff and the defendant. There was a divergence of opinion between the plaintiff's experts and the defendant's experts on a number of matters. It is clear that although the plaintiff sustained relatively minor physical injuries she did develop a significant psychiatric injury namely, post traumatic stress disorder ("PTSD") which was chronic. There is a large measure of dispute between the psychiatrists on the degree of this condition and the prognosis.

Plaintiff's injuries

4. The plaintiff was 30 years old at the time of the accident and 32 years old at trial. The plaintiff received initial treatment in the ferry as her left arm was bleeding from a cut in her left upper arm made by the tyre and an employee of the Star Ferry attempted to clean and stop the bleeding using a first-aid kit. She was taken by ambulance to Queen Mary Hospital for medical treatment.

5. According to the medical report from the doctor who attended her at Queen Mary Hospital, the medical findings were as follows :

"- spasm of left side neck muscle

- no cervical tenderness noted, full range of movement

- scratch mark at left shoulder

- full range of movement of left shoulder"

The plaintiff was treated and discharged. There was a full range of movement of the neck and left neck tenderness was noted.

6. The paintiff was called back to Queen Mary Hospital on the following day whilst she was attending physiotherapy recommended by her general practitioner. As a result of pain from her injuries she sought physiotherapy treatment immediately on the following day, 24 August, on the recommendation of her general practitioner. She received physiotherapy from Mr Justin Faulkner ("Faulkner") of Byrne & Hickman & Partners. Whilst she was receiving treatment from Faulkner on 24 August she received a call from Queen Mary Hospital for her to go back for another X-ray. This was done on 25 August 1998. The X-ray was clear and there was no fracture. She saw Faulkner again on 25 August for physiotherapy and he fitted her with a neck brace. According to Faulkner's report, she was complaining of :

"1. Intermittent headaches

2. Painful and hot feeling neck

3. Gripping pain in the left arm

4. General weakness of the left arm

5. Painful lower back

6. Pins and needles in the left leg"

7. His objective finding was :

"1. Good range of movement of the cervical spine but painful in all directions, especially the right side flexion and left rotation.

2. Muscle spasm in the shoulder.

3. Severe pain to palpation on Grade 1 pressure (light touch). "

8. She was at that time in a great deal of pain and was upset and shocked by the whole event.

9. Faulkner treated her until she went to Australia in early November 1998 and continued to treat her upon her return to Hong Kong in February 1999 and his report sets out the treatment. It was only on 7 October 1998 that she first noticed that her temporomandibular ("TM") joint was becoming sore. She was in Australia from November 1998 to February 1999. In Australia she received physiotherapy treatment from Kim Wise whose report has also been included in the bundle.

10. In about June 2000, Ms Janice Morton of Byrne & Hickman & Partners started to treat the plaintiff as she had reached a plateau with Faulkner. Her report is dated 10 October 2000. On her examination on 8 June 2000 of the cervical spine (the neck) she found muscle spasm and tenderness of the right and left paravertebral muscles. She checked her for her range of motion and found rotation was painful and restricted in both directions. The side flexion was painful and restricted right and left. The extension was very restricted and painful. There was marked restriction in the facet joints.

11. There was general stiffness in all directions of the lumbar spine with spasm and there was also the TM joint problem as the plaintiff was unable to open her mouth more than a few centimeters.

12. Ms Morton treated the plaintiff regularly since June 2000 with definite improvement in her condition. On 10 October 2000 her assessment was that the situation was much improved since her original assessment in June. In her report she set out in greater detail the rotation and range of movement of the cervical spine (neck). She anticipated that the plaintiff would need further treatment and that she would experience her symptoms in the long term and would require symptomatic treatment from time to time. She was of the view that the condition of her neck would make it difficult for her to return to her profession as an accountant. She was of the opinion that the plaintiff would require at least another six months of regular physiotherapy treatment. If she ever returned to work, she would anticipate her needing regular physiotherapy treatment to give her symptomatic relief and that even without returning to work she would anticipate that the plaintiff would require physiotherapy from time to time for recurrent neck and arm pain for the rest of her life.

13. Ms Morton also gave evidence that in her view there was probably some scar tissue on the nerve roots of the left brachial plexus and that the scarring was likely to be permanent. She expressed her opinion that the scarring might well not manifest itself on an MRI scan. It is significant, however, that although she knew that the plaintiff had been seeing a psychiatrist she did not know that the plaintiff was suffering from PTSD. She was confident that there was a musculo-skeletal element to the plaintiff's condition.

14. Dr Danny Tsoi, the plaintiff's orthopaedic surgeon, examined the plaintiff on 26 April 1999. His report is dated 27 April 1999. At that examination the plaintiff complained of :

"1. Persistent neck pain worse when head remains at the same position for long time.

2. Stiffness of neck, difficulty when turning to left side.

3. Pain radiates down to left upper limb, involving left shoulder as well as all fingers.

4. Numbness and tingling sensation over left forearm and all fingers.

5. Local painful spot over left arm.

6. Unable to sleep on left side.

7. Clumpsiness and poor coordination of left hand fingers.

8. Pain radiates down to thoracic back and scapular region.

9. Severe headache.

10. Weakness of left upper limb, unable to lift up baby or performing household work. "

15. He found her to be in good health. She walked with a normal gait. There was no problem in changing posture and no apparent lower limb neurological deficit. The neck was in normal alignment. There was muscle tenderness and mild degree of spasm over left side of the neck. There was no tenderness over the mid-line. He examined the range of motion of the neck which showed slight restricted movement in the flexion, extension rotation to the left and lateral flexion to the left.

16. He also examined the left shoulder, the left upper limb and the thoracic spine. He also commented that according to the X-ray and the MRI scan taken previously there was no bony lesion over the cervical spine and shoulder and there was no bone, disc or nerve injury.

17. He was of the view that she had suffered from severe contusion injury over the left side of her head, neck, left shoulder and arm. The superficial wound had healed uneventfully but the soft tissue pain persisted. He was of the view that as both X-ray and MRI scan revealed nothing abnormal, any bone, intervertebral disc and nerve roots injury could safely be ruled out. He was of the view that the remaining possible diagnosis to explain the severe pain was the severe soft tissue (mainly muscle, tendons and ligaments) contusion over the injured area. As regards the numbness and tingling sensation around over the distal part of the left upper limb, Dr Tsoi suggested that a diagnosis of nerve injury, namely a contusion of the brachial plexus which was the nerve fibres at the junction of the neck and shoulder, but to confirm that Dr Tsoi said that a nerve conduction study could be performed. In any event, if there was any brachial plexus nerve injury it was of a mild degree and conservative treatment should be adopted. He was of the view that the musculo-skeletal injury accounted for 6% impairment of the whole person. At that time he was advising that until further recovery was achieved she could not resume any full time gainful employment requiring long hours of sitting and concentration such as her previous job as an accountant.

18. Dr Julian Chang, an orthopaedic surgeon, gave evidence for the defendant. He examined the plaintiff on 19 November 1999 according to his report of the same date. He set out her main complaints. On his physical examination the head showed no evidence of previous head trauma. There was tenderness in the cervical spine. There was no tenderness along the brachial plexus. There was no atrophy of the scapular muscles. There was tenderness over the left TM joint but no audible or palpable clicking. The mouth opening was 2.5 cm limited by pain. There was no deviation of the jaw on mouth opening. According to him the defendant said that there was no bruising when she was struck by the tyre on the left side of her neck and shoulder. However, it is clear from the notes and the letter dated 14 March 2001 from Faulkner that the plaintiff did have bruising and that the cervical spine or neck was hot when Faulkner examined her on 24 August, the day following the accident. Dr Chang's diagnosis was contusion of the left side of the neck and contusion of the left TM joint with a possibility of contusion of the brachial plexus and that if there was such a contusion this would be of a mild degree. He assessed the musculo-skeletal injury to be 3% impairment of the whole person and recommended conservative treatment with physiotherapy and medication. This was, he explained in evidence, based entirely on her subjective complaints. He explained that he was unable to detect any evidence of musculo-skeletal disability. Unlike Dr Danny Tsoi, Dr Chang was provided with Dr Singer's first report as well. Having seen the psychiatrist's report he came to the view that he could not detect any objective evidence of musculo-skeletal disability. It was a manifestation of her psychiatric condition. In any event, he was prepared to give her the benefit of the doubt and assessed a 3% impairment of the whole person for the musculo-skeletal injury. His findings were essentially the same as Dr Tsoi apart from Dr Tsoi's assessment of 6% impairment for the musculo-skeletal injury. I prefer the assessment of Dr Chang and find the musculo-skeletal injury to be 3% impairment of the whole person.

The TM joint

19. The evidence regarding the plaintiff's TM joint problem came from Dr Comfort whose is an Associate Professor of the University of Hong Kong, attached to the Maxillofacial Unit of Queen Mary Hospital. The plaintiff was referred to her by the plaintiff's prosthodontist in Australia. Dr Comfort saw the plaintiff on 19 May 1999 after she had returned to Hong Kong from Australia. The TM joints at rest were painful on palpation, especially on the right side. All jaw movements made the pain worse, particuarly on the left side. No joint sounds were heard. The mouth opening was restricted to an opening of 30 mm. There was tenderness of both masseter with spasm detected on the left side. There was no tenderness of the lateral pterygoid or temporalis muscles which played a major role in the movements of the lower jaw. Her occlusion was normal but there was occlusal wear on the occlusal surfaces of the premolar and molars consistent with a grinding habit. A radiograph taken in January 1999 did not show any abnormality of the lower jaw. Dr Comfort made a diagnosis of internal derangement of the left TM joint with secondary muscle splinting and masticatory muscle spasm.

20. She treated the plaintiff by fitting her with a stabilisation splint on 17 June 1999. This was inserted over the upper teeth to open the bite by 3 mm to alter the loading on the TM joints and reducing the activity of the muscles. It was adjusted on 17 August 1999 to reduce the degree of bite opening. The plaintiff was unable to wear it full-time as advised but wore it at night only. In her subsequent visits she reported improvement in her symptoms with less pain in her TM joints, teeth and facial muscles but the splint had no effect on the pain at her neck, left shoulder or left arm. There was an occlusal imbalance in October and November 1999 but this was relieved by physiotherapy. Dr Comfort was of the view that the injury had apparently caused damage to her TM joint resulting in TM disorder of internal derangement and secondary muscle splinting and muscle spasm. She said that a number of other factors might also have influenced the condition and exacerbated her symptoms, for instance, anxiety, emotional stress or depression. She was of the view that further improvement may occur if she were able to wear her splint full time. However, as she was using the splint at night time her progress was slow and it was likely that she would not make a full recovery with this treatment and she would be faced with deciding whether to accept some degree of permanent incapacity of TM joint function which was evident during eating, yawning, speaking, singing etc. or proceeding to surgery.

21. In her subsequent report dated 20 November 2000, Dr Comfort stated that she had reviewed her condition in April, July and in October 2000 and there had been some improvement. Radiographs of the jaws and the TM joints were taken on 15 June but no pathological changes were seen on the radiographs. She was of the opinion that although the plaintiff's facial symptoms had improved considerably since November 1999 the degree of improvement over the last three months between her last two visits was minimal. Her jaw movements continued to be restricted by pain due to muscle splinting and muscle spasm. She was of the view that it was likely she would have to accept some degree of compromised TM joint function permanently and would need to continue to wear a stabilisation splint on a permanent basis to maintain control of her TM disorder. Further improvement may occur slowly. There was a MRI scan taken on 25 October 2000. Dr Comfort said that she had no expertise in interpreting MRI scans. She said that there was a physical sign and a psychological sign in her condition and that both were recognized in TM joint disorder. She said that she was not concerned with the fact that it was only in October 1998 that the plaintiff first complained of her TM joint problem as symptoms could develop either immediately or take some time to develop. She said that she was sure stress was part of the problem but whether or not it was only caused by stress she could not say conclusively. She was of the view that the splint had assisted in her improvement and disagreed with the suggestion that the splint did not play an effective part in her treatment.

22. The defendant called Dr Edward To who is an experienced maxillofacial surgeon and neck surgeon. Dr To is also an Assistant Professor of the Head & Neck/Plastic and Reconstructive Surgery Division of the Faculty of Medicine at the Chinese University of Hong Kong. He examined the plaintiff on 19 October 2000. As set out in his report dated 11 November 2000, on examination of the plaintiff he found bilaterally mild tenderness over the TM joints, intra-oral pterygoid muscles and trapeziums muscles of the neck. The active mouth opening was limited to 2.5 cm and there was no locking or clicking noises of the joints or deviation of the mandible on mouth opening or closing. The teeth showed signs of attrition on the occlusal surfaces. MRI scan of the TM joint was performed on 25 October 2000 which ruled out major structural abnormalities but suggesting grade 1 internal derangement of the disc with anterior displacement. Dr To regarded this as normal. He was of the view that TM joint disorders could be due to non-organic causes (such as psychophysiological disorders, e.g. stress, anxiety or depression) or organic causes (due to direct trauma, autoimmune arthritis, growth disturbances or tumours). He said that the symptoms affect 33% of the general population predominantly females without underlying organic cause. His view was that most patients without an organic cause would not have any long term complications or disability and the symptoms would resolve with time without treatment. His view was that TM joint disorder was very common among the population.

23. Dr To was of the view that the taking of the history of the patient was vital and that because Dr Comfort failed to realize the underlying psychological or psychiatric problem of the plaintiff there was a very high chance of failure in the treatment with a splint. His view was that the delayed onset of the symptoms of the TM joint problem until October 1998 suggested that it was most likely due to a stressful situation which could cause the muscle spasm affecting the region of the jaw. His recommended treatment was multidisciplinary with biopsychoscial treatment with pain control, biobehavioural treatment and muscle relaxation therapy. He disagreed with Dr Comfort's view that the splint was useful in the treatment. He also expressed the view that if a splint was used in a patient who did not have the joint problem but only muscle spasms it could aggravate the situation and it could cause more dis-coordination of the muscle function in the jaw. It was his view that long term disability or progressive complications of the plaintiff's TM joint was not expected. A treatment should be directed towards the biopsychoscial aspects he had mentioned. His view was that the symptoms of the TM joint problem that the plaintiff had was secondary to a psychological traumatic event and that it was therefore logical to treat the patient with psychiatric treatment, relaxation and biofeedback therapy in order to remove the underlying causes of the symptoms rather than by employing a dental splint to treat the symptoms caused. He predicted six months of psychiatric treatment relaxation and biofeedback therapy to remove the majority of the symptoms to allow the plaintiff to go back to normal work or to take up an alternative employment. Dr To had the relevant expertise and was familiar with interpreting MRI scans. His view was that the MRI scan of the plaintiff's TM joint was normal because according to him grade 1 internal derangement was regarded as normal. He said that there was no structural damage to the joint and the underlying cause of the pain was the psychological condition namely, the PTSD. That was the cause of the problem which had to be treated and the patient should be encouraged that the TM joint did not have structural damage and that the chance of recovery was high even without wearing a splint. He accepted that the plaintiff had had some relief in wearing a splint during the time that she was treated by Dr Comfort but suggested that this, like any treatment, had a placebo effect which had psychological benefit, such as when patients were given a tablet and they regarded that as beneficial. He disagreed with Ms Morton that there was scarring of nerves of the brachial plexus. His view was that the neck pain or neck spasm was centrally affected by the plaintiff's PTSD and that it was unlikely that the neck pain was due to any structural damage.

24. I was impressed with Dr To's evidence. He is an experienced maxillofacial and neck surgeon. Having heard the evidence of Ms Morton, Dr Comfort and Dr To, I prefer the evidence of Dr To to that of Dr Comfort and Ms Morton. Where their opinion evidence is at variance, I accept Dr To's evidence and reject Ms Morton's and Dr Comfort's evidence. It is most unfortunate that Ms Morton and Dr Comfort were not fully informed of the plaintiff's PTSD at the time they were treating her. Dr To was also of the view that Ms Morton's opinion as to scarring of nerves in the brachial plexus was speculative and was not supported by the MRI scan. I accept Dr To's views and find that the TM joint did not have structural damage and that the chance of recovery was high even without wearing a splint.

25. Although the splint did give some relief to the plaintiff, I accept that, as Dr To said, the splint is not effective to treat the TM joint and the underlying cause of that is a non-organic cause which is attributable to her PTSD that has to be treated by a psychiatrist in a co-ordinated treatment program.

The psychiatrists

26. The evidence of the psychiatrists was given by Dr Singer on behalf of the plaintiff and Dr Barry Connell on behalf of the defendant. According to Dr Singer's first report dated 21 May 1999 he was first instructed by the plaintiff's solicitors to conduct an examination and submit a psychiatric report with particular reference to disability arising from the accident. For this purpose he examined her on 21 February, 29 March and 4 May 1999. He then began treating her as from 11 May 1999 as a patient and has been treating her ever since. It was submitted by Mr Barretto, counsel for the defendant, that as Dr Singer was appointed as the plaintiff's expert and then began treating the plaintiff as a patient his objectivity as an independent expert has been compromised and his evidence should be viewed in that light. In my view, it is regrettable that Dr Singer who was first instructed to give an opinion as an independent expert for the purpose of the compensation claim should then start treating the plaintiff as a patient without referring her to another psychiatrist. Be that as it may, I do not think that the fact that he was also the treating physician is a factor that I should have regard to when considering his evidence. I do not regard that factor as in any way diminishing the value of his opinion. The question is whether I prefer his opinion or Dr Connell's opinion as there is a divergence of opinion evidence from the psychiatrists.

27. Dr Singer's first report sets out the history pre and post accident and I shall not repeat this here.

28. The plaintiff's physical complaints to Dr Singer were :

(1) headache which lasted four to five days at a time;

(2) weakness of left arm to the extent that she could not carry her child on her lap;

(3) numbness and tingling of the left palm and finger tips;

(4) ache in left upper arm where tire struck her and in upper part of forearm;

(5) pain in neck on rotating it and on touch;

(6) tenderness to touch on the right side of the jaw.

29. Her psychiatric complaints were, inter alia, :

(1) fear of leaving child alone;

(2) nightmares of the accident and of violent events;

(3) on the street when she looks up and sees someone watching her she feels distressed, panicky and has palpitations;

(4) on the street if she sees something rushing by she braces herself, feels distress and panic;

(5) recurrent distressing recollections of the accident experience six to eight times a day;

(6) distress when exposed to the site of the accident, for instance, when going past the Star Ferry she gets frightened and has palpitations and avoids seeing the turnstiles. She avoids the Star Ferry and has not taken it since the accident;

(7) she avoids talking and thinking about the accident which makes her distressed;

(8) she has diminished interest in activities and in socializing;

(9) less capable of warmth in her feelings for both her husband and her son;

(10) cynical about the future;

(11) difficulty in sleeping, thinking and concentrating;

(12) depressive and labile mood with lack of self-esteem

(13) irritable with outbursts of anger and intolerance, more friction and strain in the marriage.

30. It is also stated in Dr Singer's report that she was unable to go back to her accounting work. Although she was independent in self-care and personal hygiene she lacked energy and neglected personal hygiene on certain mornings with idling around in pyjamas. She was teaching part-time which she regarded as therapeutic and assisted financially as well. Travel was distressing because of sensation of train rushing past her causing panic and walking on the street was distressing with the crowds and fear of objects falling on her. It was difficult for her to use a computer because of her impaired neck movement. There was also a lack of sexual desire and the social and recreational activities were very limited.

31. On his examination Dr Singer found that the main features of her mental state were depression and agitation with sweaty palms and tense facial expression. There were no delusions and hallucinations. He diagnosed her as suffering from PTSD and the condition was chronic and in his view was severe in degree. His prognosis was guarded as one third of subjects with PTSD recovered completely, a third continued to have mild symptoms and a third continued with moderate symptoms or got worse. Prognosis also depended on the treatment given, the earlier the better and also depended on the settlement of litigation. He recommended psychiatric treatment in the form of medication and psychotherapy which he explained more fully in his report. He said that after three years she would need maintenance treatment for five years. He also said that there was a risk that she would have exacerbations of her PTSD requiring hospital treatment. Permanent loss of earning capacity was assessed at 50% with treatment and 80% without treatment and the permanent impairment according to him of the whole person with treatment was 10% and without treatment was 20%. He was of the view that she could do part-time tutoring but after psychiatric treatment and the litigation she could do her pre-accident work part-time.

32. Dr Singer has been treating the plaintiff for hourly sessions from 11 May 1999 on a frequency of about twice a week to once in one or two weeks with gaps when the plaintiff went away on visits. In his second report dated 12 January 2001, he explained that he had been treating her with psychotherapeutic methods. Medication was not used because she was either pregnant or breast feeding throughout the period up to December 2000. Even though she stopped breast feeding in December 2000 he decided not to use drug therapy as there was inadequate data to show that drugs were beneficial in the long run. He said that although improvement was slow, it was likely that she would continue improving though it was impossible to say what the final level of recovery would be. His view was that drug therapy should therefore not be given at the moment but remained an option for the future. He explained that part of the psychotherapeutic methods used in his treatment was graded exposure therapy and desensitization in imagination. He dealt with her specific problems of depression, anxiety, irritability and relationship problems with her husband and children and family and others, pain-control and task assignments. He also set out extracts from his clinical notes during the period when he was treating her.

33. Dr Singer explained that exposure therapy meant exposing her to stressful situations and part of the therapy was to desensitize the plaintiff to all the matters as set out in the report. He did say that in view of the complaints of pain that the plaintiff had the large element was psychogenic in the causation of that pain. He said that despite the treatment her core symptoms remained severe although she had made some improvement. It had not yet been possible to tackle her fear of the Star Ferry and boats in general. He also set out her physical complaints and her psychiatric complaints. He found that her personal hygiene had improved and that she felt that could not do the pre-accident work because of her physical symptoms, inability to think clearly and to be under pressure. Travel remained distressing for her although on the whole travel in certain respects had improved. Walking in the streets was slightly less stressful. There was still a lack of libido which persisted. Interest in social and recreational activities had improved though she had not fully participated more.

34. Dr Singer felt that the thought of returning to work was overwhelming and that was now a major stress that she faced as a significant barrier to her returning to work. He also interviewed the husband and set out the record of the discussions. In his opinion the plaintiff continued to suffer from PTSD as a result of the accident. It remained severe in degree although she had improved in some aspects of the treatment. He also said that the PTSD was associated with the following additional psychopathologies :

"- Depressive Disorder, with depressive mood, diminished interest and pleasure in activities, agitation, retardation, feelings of worthlessness, impaired concentration and thinking;

- Somatoform Disorder with pains, weakness and numbness;

- Relational problems, particularly marital problem (because of irritability, general inadequency and sexual aversion), putting her marriage at risk."

35. He was also of the view that as a result of the PTSD she was handicapped in playing her role as spouse and mother and was impaired in social and occupational functioning.

36. His prognosis was that this remained guarded. Although there was some improvement with treatment, the improvement had been slow. He said that it was likely that she would continue to make at least some further improvement but it was not known to what extent. He was also of the view that she would probably require longer and more intensive treatment as set out in his first report. Dr Singer said that his objective was to make her go back to her former work by carrying out the treatment progressively to get her to cope with the task which approximated the task she had to do in her former work but she could not do that work now. He agreed that a coordinating approach with the other care givers would be beneficial. He said that there was a psychogenic element to her complaints of pain and her physical injuries but was not saying that it was entirely psychogenic. He agreed that litigation was a very significant stress which would hold back the improvement and once that was over that stress would be removed. He also said that the desensitization involved asking the plaintiff to imagine going through the original incident. It was desensitization in imagination rather than actual and having tried that she became agitated when thinking about it. This indicated that the original accident was still working on her and she still had fear and in his view that made a bad prognosis. He was of the view that she could do part-time teaching in perhaps six months to a year.

37. Dr Barry Connell was not as pessimistic as Dr Singer in his prognosis of the plaintiff's condition. He agreed that she was suffering from chronic PTSD but in his view it was moderate and not severe. Dr Connell had a great deal of experience with trauma PTSD. He also had the advantage, which Dr Singer did not have, of observing the plaintiff's behaviour in the witness box when she was giving evidence.

38. As stated in his report dated 29 November 1999, he examined her on 22 November and 25 November 1999. He set out the pre and post accident history and also obtained information from Mr Collins which is set out in his report. On his examination he found the plaintiff to be a quiet, timid young woman who was moved to tears during her account of the accident. She continued to think daily about the accident and to be troubled by the impact. Symptoms of lowered mood and anxiety were described by her. He was of the opinion that her symptoms were consistent with a diagnosis of PTSD which was chronic but had somewhat improved probably because of the treatment received from Dr Singer. He was of the opinion that her condition was not severe in nature as it was not incapacitating. Despite her condition and her fears she managed to work out of the home and travel giving private tuition. But he recognized that the condition was significant and did require psychiatric treatment. The PTSD was significantly impairing her mental health and her capacity to enjoy her life and the quality of her marriage had also diminished.

39. Dr Connell was of the view that Dr Singer was recommending unnecessarily prolonged and intense treatment. By that he meant that the initial sessions of twice a week hourly sessions were too intense. He suggested that the plaintiff be seen twice monthly perhaps for up to a year by a clinician current in the latest method of treating PTSD and that medication might be necessary if she did not respond to the standard psychotherapeutic approaches. He also recommended that the plaintiff and her husband be more informed about the condition so that they could be better aware and in a better position to do what was psychologically necessary to effect her recovery. He was of the view that Dr Singer's prognosis was too dire and ignored her prior strengths and ongoing ability to work, raise a child and try for another. It was his opinion that considering that she had PTSD she had coped remarkably well. There was a stage in the period post-accident when she had two young children of her own and she also took on teaching part-time and managed to travel. Those were positive signs as to her inner strengths and Dr Connell was able to say that she had coped remarkably well and that was positive. He also said that her trips to Shenzhen for shopping which must have been stressful trips was a good sign that she could do that sort of thing and would give some encouragement if he was treating her. Also, Dr Connell said that her desire to have a child post-accident was a positive thing. On the evidence, although Mr Collins persuaded her to have a second child after the accident, it was the plaintiff's decision to have a second child. All these were positive signs according to Dr Connell. Contemporaneous with her pregnancy was her teaching which, at one stage, averaged something like 28 hours a week. This would ordinarily be stressful and showed her inner strengths. Dr Connell said that as a psychiatrist he was able to say that he could push on with the plaintiff and get her treated and get her better. There were indications that she was an inherently strong person.

40. Having seen and heard her giving her evidence, the plaintiff impressed me as a person who held up remarkably well in view of her condition of PTSD. She was able to be coherent and did not yield to pressure even under cross-examination. Although she was understandably unsure about the future, in my view, I agree with Dr Connell that her inner strengths do give signs for a positive prognosis. The plaintiff's evidence showed also that she had aspirations to have a third child at some stage as part of her family plan and to complete her MBA degree. Her desire to obtain an MBA degree had been put on hold when she came to Hong Kong with her husband. In my view, these are all positive signs showing her inner strengths. I prefer the evidence of Dr Connell to that of Dr Singer. Where their opinion evidence is at variance, I accept the evidence of Dr Connell and reject the evidence of Dr Singer.

41. Dr Connell was of the view that the plaintiff's life had developed after the accident in more ways than one despite the PTSD. He saw improvement by the time he wrote the second report and the fact that she coped and managed despite all the stresses said something about the degree of PTSD. He did not regard it as severe; if it were she would be more incapacitated than she appeared to have been and his view was that it was moderate, which I accept.

42. Dr Connell's treatment was to be more pro-active and should be done sooner rather than later. In his second report he said that her inability to return to her previous former employment was largely a function of her psychological state. Also, her ability to cope with her grandmother's illness with no significant deterioration in her mental well-being was another pointer to her underlying strengths which gave hope for optimism. The litigation was also a stress factor. Dr Connell recommended that the plaintiff receive psychiatric treatment from a clinician expert in the field of PTSD. His advice was that a second opinion from an expert on PTSD should be obtained. After that, there should be a co-ordinated multi-disciplinary approach with the other care givers with some period of transition which must be carefully monitored. As the plaintiff's major injury is her PTSD disorder, it is, in my view, unfortunate that the plaintiff has not up to now received treatment which was co-ordinated with the other care givers.

43. From what Dr Connell had heard he could not see why she could not be helped back to the normal position of the previous employment as an accountant. His approach would be to expose the plaintiff to her fears in reality rather than in imagination, i.e. reality exposure rather than exposure in imagination as Dr Singer had done. He explained that obviously if she was distressed at the very idea it would be better to get her to confront her fears sooner rather than later perhaps in stages. This might be done with the assistance of a co-therapist who might be a nurse or her husband and it might be necessary to give her some anti-anxiety medication before exposing her to a ferry, for instance. The idea was to expose her sooner rather than later. The focus in PTSD was fear and overcoming it. He also expressed the view that there was proven evidence that drug therapy was beneficial in appropriate cases and that combined with psychotherapeutic treatment the effect might be better. He agreed that she could not be exposed to a one-off reality exposure to a ferry as it would be too distressing after this time but it had to be graded gradually and one had to balance her distress with what was in her best interest. He was of the view that many people with chronic PTSD could be helped and that the plaintiff could be helped. He felt that a different approach to what Dr Singer recommended was required that might be beneficial but one could re-evaluate it after a few months. Dr Connell's prognosis was much more optimistic than Dr Singer's. He said that after an initial period of evaluation over a month or two, one would try to let her do some accountancy work of a voluntary nature which might be practicably possible for her to do within some months. He was hoping that a year's therapy would help her function in her previous capacity. The purpose was to try to get her to her pre-accident function. His view was that the treatment that he was suggesting would involve individual treatment more frequent in the first few months, probably with twice a month sessions or a bit more frequent to start with over a year as well as additional sessions less frequent involving her husband so that he could assist in her recovery. If it turned out that she was more resistant to treatment then a nurse therapist might be employed for some early sessions for exposure in reality as opposed to exposure in imagination. And medication was something that could be considered and covered in these sessions.

44. I accept Dr Connell's opinion evidence. In my view, the prognosis is optimistic if the plaintiff adopts the treatment recommended by Dr Connell. There is, in my view, on the balance of probabilities a good chance of recovery after about a year's treatment or a bit longer. This is a realistic view on the prognosis of Dr Connell which I accept.

Pain suffering and loss of amenities ("PSLA")

45. The plaintiff in her witness statement explained in detail what the impact of the accident was on her physical well being which I accept. She suffered pain in the neck, jaw, mouth, left hand and fingers, left forearm, left upper arm and left shoulder. There is no doubt that although the impact and the physical injuries were not severe in nature, the psychological and the psychiatric harm has been significant. Although not severe in degree, it was certainly moderate and has been chronic. The PTSD has caused her to suffer from, inter alia, fear, anxiety, paranoia, situation avoidance, loss of self-confidence, depression, sleep problems, nightmares, flashbacks, violent dreams, day dreams and loss of self-esteem. She also had a strained relationship in her marriage because of her PTSD. She also had to miss social functions involving boats and has also been unable to participate in sporting activities like tennis, golf and hiking which she used to engage in previously. She has also felt that her relationship with her children has also suffered because of her condition and which she has detailed in her witness statement.

46. I think that a proper sum to award under this head is $475,000. This would be within the 'serious injury' category towards the lower end which I think the plaintiff's injuries fall into. I do not agree with Mr Barretto that the injuries are below the 'serious injury' category. In my judgment, $475,000 would be a reasonable sum to award under this head.

Special damages

47. The revised statement of special damages claim medical expenses and travelling in the sum of $246,953. This has been admitted to the extent of $243,801 and I allow this sum. The cost of hiring a maid and other expenses as particularized in Schedule B to the revised statement of special damages is claimed in the amount of $95,470.50. This is admitted to the extent of $12,400.50 being $1,930.50 for damage to the pram and $10,470 for the cost of hiring a maid from 24 September 1998 only up to 4 November 1998. In November 1998 the plaintiff went to Australia. However, I consider that it was reasonable for the plaintiff to continue to rely on the help of a maid on her return to Hong Kong in February 1999 in view of her condition. Whilst she was in Australia she, of course, had the assistance of family members to look after her and her young son but once she returned to Hong Kong it was reasonable for her to continue to rely on a maid in view of her PTSD condition. I consider that I ought to allow her the cost of hiring a maid for one further year than has been admitted by the defendant, i.e. up to November 1999 which amounts to an additional sum of $43,270 according to the particulars in Schedule B to the revised statement of special damages. After the birth of her second child she would have had to hire a maid in any event. The total award for cost of hiring a maid and other expenses is therefore $55,670.50 ($12,400.50 + $43,270).

Pre-trial loss of earnings

48. I find it difficult to assess damages under this head.

49. On the evidence, which I accept, the plaintiff worked as a chartered accountant from 1989 to 1994 in Coff's Harbour, New South Wales in Australia. In July 1994 she moved to work with a leading second tier chartered accountancy firm Mann Judd in Melbourne. She was employed as the firm's head financial accountant to manage the firm's internal accounting functions and reported directly to the partner in charge of managing the firm's business. Her final salary was AUD$60,000 per annum in Mann Judd. She performed her duties competently in that firm and was highly regarded by her employers.

50. In January 1997 she was accepted for the MBA degree programme in Melbourne but this was deferred as a result of her pregnancy and then further deferred as a result of her husband's transfer to Hong Kong. Her first child was born on 30 July 1997. Prior to the commencement of her maternity leave her husband was advised that he was going to be transferred to Hong Kong in July 1998. She therefore decided to resign her position with Mann Judd and in May 1997 she tendered her resignation so as to enable the partners to have sufficient time to find a replacement. She was expecting to be in Hong Kong for 8 months and they arrived in Hong Kong around 30 January 1998.

51. Mr Collins confirmed the plaintiff's evidence on this and said that they were expecting to be in Hong Kong for 8 months initially and then go on 8 months' rotation to New York and after that come back and work in Asia. He was working for G.E. Capital which was part of G.E. Capital Inc. According to him, when he moved to Hong Kong he was earning a salary of HK$65,000 per month on a 13 month basis. The letter dated 29 January 2001 from G.E. Capital shows that Mr Collins was a permanent staff in Hong Kong on 1 December 1998. This was with G.E. Capital (Mortgage). Mr Collins, however, said that at least 3 months prior to that date he was in negotiation with his employer for a permanent position in Hong Kong.

52. The plaintiff said that she had planned to start looking for work as an accountant in Hong Kong in about August 1998 after her husband's aunt, who was visiting from Australia, left. I do not believe the evidence of the plaintiff and Mr Collins that there was already a decision made at the time of the accident that the plaintiff would seek employment in Hong Kong. In my view, the plaintiff would not have contemplated looking for employment in Hong Kong until her husband's employment in Hong Kong on a more permanent basis was secured. This would have been shortly before he was offered permanent employment in Hong Kong on 1 December 1998. I am satisfied that if it were not for the accident she would have started looking for employment only around mid-November 1998 but not before.

53. I have also heard evidence from the accountancy experts in the case. Mr John Donker of PricewaterhouseCoopers gave evidence on behalf of the plaintiff and Mr Antonio Chan of Grant Thornton gave evidence on behalf of the defendant.

54. According to Mr Donker's report dated 1 December 2000 the plaintiff could reasonably have been expected to earn, had there been no accident, as an internal accountant with one of the Big 5 accountancy firms approximately HK$700,000 per annum based on 13 months salary. He said that as an accountant in the commercial sector she could expect to command a salary in the range of HK$325,000 to HK$900,000 per annum and a chief accountant could expect a salary range of HK$520,000 to HK$975,000. Mr Donker, however, did not deal with job prospects in 1998, 1999 and 2000 for accountants in Hong Kong. When he gave the projected earnings in his report he had reviewed the plaintiff's curriculum vitae ('cv') and he said it was a cv that PricewaterhouseCoopers would have found attractive. It was a cv that they would have followed up with an interview and looking at her cv she had extensive experience in managing the internal finances of the firm. However, he very fairly said that it would be difficult to say more than that as to her employment prospects with his firm. He accepted that local working knowledge and language skills were advantageous but in a firm of the size of PricewaterhouseCoopers they were less critical of that as compared to a smaller firm.

55. Mr Antonio Chan's report is dated 19 January 2001. He is the senior partner of Grant Thornton Hong Kong and has been head of executive recruitment service of Grant Thornton with considerable experience since 1985 to deal with salary trends and the employment market particularly in the accounting field. His opinion was that demand was very limited in 1998 and 1999 for accountants and salaries were very much depressed. Also, he was of the view that it was unlikely that the plaintiff would have found a suitable position in 1998, 1999 and the first quarter of 2000 when the market started to improve. He also said that her lack of local working knowledge and the Chinese language were disadvantages. He said that in 1998 and 1999 there were literally hundreds of applications for one vacant post and she would have faced competition from returning migrants who were bilingual with a local working knowledge.

56. Having considered the evidence of the experts, I prefer the evidence of Mr Antonio Chan to that of Mr Donker. I am of the view that it would have been very difficult for the plaintiff to have secured employment as an accountant earning a salary of $700,000 to $800,000 per annum. It was the view of Mr Chan, which I accept, that it was unrealistic to use the salary scale of the Big 5 accountancy firms in her case. I am not satisfied that realistically the plaintiff would have secured employment in a Big 5 firm earning $700,000 to $800,000 per annum. Based on the opinion of Mr Chan, which I accept, the plaintiff could at best have obtained a salary of HK$35,000 per month or HK$455,000 per annum based on a 13 months' salary basis. This would have placed her as an accounting manager and the recruitment advertisements referred to in his report support this salary. In my view, that was a reasonable figure to expect if she had secured employment in the pre-trial period but for the accident.

57. Although Mr Chan said that it was unlikely that she would have secured employment in 1998, 1999 and the 1st quarter of 2000 earning the said salary, there must, in my view, have been a chance that the plaintiff could have obtained a job with the said salary in 1999 or in 2000 in the pre-trial period. There are, however, a number of uncertainties and imponderables. It may well be that because of the difficulty in securing suitable employment as an accountant in 1998 and 1999 the plaintiff may have decided to put her career on further hold so as to have her second child earlier than planned even if it were not for the accident. She may also have decided to teach whilst looking for a full-time accountancy job. Also, the fact that her husband was earning substantially more when he moved to JP Morgan in November 1999 may also have advanced her decision to have a second child earlier than planned. I accept Mr Barretto's submission that because of the uncertainties and imponderables, the assessment of the pre-trial loss of earnings should be made on the basis of the loss of a chance. In my view, there was no loss of earnings at all for 1998. From 1999 to trial, the pre-trial loss of earnings should be assessed on the basis of the loss of a chance on a global basis. I cannot accept, as submitted by Mr Barretto, that the pre-trial loss of earnings should only be restricted to loss for 11/2 months. Doing the best I can, I would assess the pre-trial loss of earnings on the basis of the loss of a chance by awarding a global sum of $400,000.

58. On an annual income as an accountant of $455,000, salaries tax of $38,290 is to be deducted according to the figures supplied by Antonio Chan, which I accept, leaving a net sum of $416,710. I would observe that the global sum of $400,000 which I award under this head is equivalent to approximately 11/4 years of pre-trial loss less the income of $137,061 that the plaintiff actually earned from teaching during the pre-trial period ($416,710 x 1.25 - $137,061 = $383,826). This is only by way of comparison as, in my view, the assessment of this head should be a global sum awarded on the basis of the loss of a chance. I am of the view that the assessment of $400,000 for pre-trial loss of earnings is a reasonable global sum to award for her pre-trial loss based on the loss of a chance.

Future loss of earnings

59. This head is even more difficult to assess.

60. The plaintiff and her husband were cross-examined about whether they would remain in Hong Kong for the rest of their working lives. I am satisfied that they would remain in Hong Kong indefinitely and that for the purposes of computing loss of earnings I should only have regard to loss of earnings in Hong Kong and not to loss of earnings in Australia. I see no reason to think that the plaintiff and her husband would not wish to remain in Hong Kong on a permanent basis. Mr Collins left G.E. Capital and went to work for J P Morgan in November 1999 where he is still employed based in Hong Kong. On his evidence, Mr Collins' financial package as at the end of 2000 was equal to approximately US$400,000 a year which is a very attractive financial package. I accept the evidence that the plaintiff and her husband have grown to love Hong Kong and regard it as their home. I am satisfied that the loss of earnings should be awarded on the basis that she would have stayed in Hong Kong rather return to Australia.

61. Here again there are uncertainties and imponderables for the future. It is unlikely that the plaintiff would in any event be able to earn any income for at least 6 months post-trial even on Dr Connell's optimistic prognosis which I have accepted. She may start earning as a part time teacher thereafter and she may be able to resume her previous job as an accountant after one year or longer depending on how the plaintiff responds to the treatment recommended by Dr Connell. Despite her evidence that she would want to work up to 60 years of age, I consider this to be unlikely bearing in mind the lucrative financial package that her husband receives and which hopefully will continue to grow. There are other uncertainties and imponderables. One must also consider whether the plaintiff may wish to have a third child first before going back to full-time work even if she were able to do so. Having a third child was, on her evidence, her family plan and she may well decide to have a third child sooner rather than later and put her career on further hold. There is also the possibility that she may still wish to obtain her MBA degree on a full time basis before going back to full time work. There is also the chance that she may need a longer period of treatment for her PTSD before being able to seek full time employment as an accountant. I am convinced that because of the various uncertainties and imponderables it is not appropriate to assess her future loss by adopting a multiplicand/multiplier approach. I am satisfied that the proper approach in this case is to award a global sum for future loss. That was the approach that the Court of Appeal in England considered as proper in Blamire v South Cumbria Health Authority [1993] PI QR Q1. That was also the approach that the Court of Appeal in Hong Kong considered as proper in Ho Yee Mui v Lui Hon Loong and Kowloon Motor Bus Co. (1933) Ltd., Civil Appeal No. 507 of 2000 (5 December 2000).

62. On that basis, I think that a global sum of $1,300,000 would represent reasonable compensation for loss of future earnings. By way of comparison, I would observe that this represents approximately loss for 5 years based on an annual income of $416,710 ($455,000 less tax of $38,298) and after deducting estimated annual income as a teacher rounded off at HK$175,000 (without taking into account the earnings of February 1999 and March 2000 as not being representative), i.e. $416,710 - $175,000 x 5 = $1,208,550. This is only by way of comparison as I do not think that it is appropriate in this case to adopt a multiplier/multiplicand approach. Doing the best I can, in my view, a global figure of $1,300,000 would represent reasonable compensation for loss of future earnings.

Future psychiatric treatment

63. This is claimed at $130,000 for 3 years on the basis of one session per week at HK$2,500 for 3 years ($390,000) and thereafter a maintenance treatment period for 5 years on the basis of one session per month at HK$4,000 for 5 years ($240,000). This is admitted at $312,000 for the initial treatment period and at $180,000 for the maintenance period. On the evidence of Dr Connell which I have preferred, I do not think that the psychiatric treatment including the period for maintenance treatment will be anything as prolonged as Dr Singer has envisaged. In the circumstances, I think that the admitted figures of $312,000 and $180,000 are closer to what is reasonable for the claim for future psychiatric treatment. I propose to round this off to a total of $500,000 and award this sum under this head.

Future medical treatment and hospitalization

64. There is no sufficient or convincing evidence that the plaintiff would need future medical treatment by an orthopaedic surgeon or that she would require hospitalization because of her psychiatric condition and I make no award for these claims which were not pursued by Mr Sarony SC.

Future dental treatment

65. In Mr Sarony's final submissions, the claim for this head was reduced to $15,000 as being the cost of review of approximately $3,000 per year for 5 years covering review visits and the provision of a new stabilisation splint. I am not satisfied that the plaintiff would need review for anything as long as 5 years or that is it reasonable to allow for a new stabilisation splint based on the evidence of Dr To which I have accepted. However, I think it is reasonable to allow a reduced sum of $9,000 for future review.

Cost of future physiotherapy and acupuncture

66. In his final submissions, Mr Sarony said that the claim was on the basis of two sessions per month at HK$430 each for 18 years, being the multiplier for the rest of her life ($860 x 12 x 18 = $185,760). Future acupuncture treatment for the rest of her life was claimed at HK$450 per session on the basis of one session per week ($450 x 52 x 18 = $421,200).

67. The defendant admits $134,520 for future physiotherapy or other therapy to include acupuncture but does not admit that she is entitled to both physiotherapy and acupuncture. I am satisfied that the plaintiff is entitled to claim for both physiotherapy and acupuncture sessions as these have obviously been of benefit to her and will continue to be of benefit. The difficulty is in determining for how long she should be entitled to claim these expenses. I am satisfied that most of her physical complaints are manifestations of her PTSD and that most of these will clear up with successful psychiatric treatment but she may still need some physiotherapy and acupuncture although one, of course, cannot be precise as to how long she would still need the same. I am convinced that she would most probably not need these for the rest of her life. I think it would be reasonable to allow for physiotherapy and acupuncture twice a month for 7 years. I therefore allow the sum of $72,240 ($860 x 12 x 7) for future physiotherapy and $75,600 ($900 x 12 x 7) for acupuncture. This comes to a total of $147,840 and I propose to round this off to $150,000.

Summary

68. The total damages to be awarded to the plaintiff is as follows :

The total sum of $3,133,471 is the amount I award to the plaintiff and there will be judgment for the plaintiff for the said sum.

69. There will be interest on the claim for PSLA and interest on special damages and loss of pre-trial earnings at the appropriate rates to be calculated in accordance with the usual principles. The calculations can be left to be agreed by the solicitors for both parties.

70. I also make an order nisi for costs in the plaintiff's favour to be taxed if not agreed.