YEUNG LOK SZE v. HONG YIP SERVICE CO LTD

HCPI 12/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 12 OF 2007

-------------------------

-------------------------

Dates of Hearing : 6–8 May 2008

------------------------

JUDGMENT

------------------------

1. The plaintiff’s claim is for damages arising from an accident at work which occurred on 13 January 2004 whereby the plaintiff sustained injury to her lower back.

2. At the time of the accident, the plaintiff was employed by the defendant as Recreation Assistant in the clubhouse of a residential complex known as Hanford Garden which is situated in Castle Peak Road, Tuen Mun, New Territories.

3. The accident to the plaintiff occurred on the morning of 13 January 2004 when the plaintiff was putting up Lunar New Year decorations on a notice board inside the clubhouse using a wooden A-shaped ladder provided by the defendant.

THE EVIDENCE

4. The plaintiff gave evidence that the ladder used by her had six rungs including the very top of the ladder.  She had mounted onto the 5^th rung of the ladder to stick up a decoration strip onto the top frame of the notice board.  After sticking that part of the strip to the notice board, she had to come down from the ladder and to move the ladder before she could continue the rest of the decoration work on another part of the notice board.  As she was coming down from the ladder and as her left foot was about to reach the 4^th rung of the ladder, the ladder suddenly moved and wavered causing her to lose her balance on the ladder and fall to the ground below.

5. It was also the plaintiff’s evidence that the reason why the ladder moved as she was coming down from it was due to the fact that the wooden ladder was old and its legs were both worn out and rounded as well as due to the fact that the legs of the ladder did not have anti-slip protective when the floor of the clubhouse was of tiled material and was regularly cleaned and waxed thereby being somewhat slippery.

6. That the ladder was slightly wobbly when it was mounted by persons was something already known to the plaintiff from earlier experience before this accident took place.  In light of this knowledge, the plaintiff said that she had previously spoken to her supervisor, Chan Lai Sin, requesting that there be an additional staff to assist her by holding steady the ladder when it was being used.  However, the reply from her supervisor was that they were short handed with staff and that request of hers was turned down.

7. In the circumstances, it was her evidence that when she mounted the ladder to do the decoration works on the day the accident occurred, she was the only staff employed by the defendant at the clubhouse.

8. However, the plaintiff agreed that there was a cleaning worker who was nearby to where she was working on the ladder before she fell down.  When asked why she did not request the cleaning worker to assist her by holding steady the ladder, the plaintiff replied that firstly, the cleaning worker was not a clubhouse staff employed by the defendant, but was employed by the cleaning company contracted to do cleaning works at Hanford Garden.  A further reason she gave was that the decoration work which she was performing at the time was not something which could be done in a matter of minutes and therefore she would have to be on the ladder for some length of time.  That being the case, she did not think she could impose upon the time of the cleaning worker who was engaged by the cleaning company to do cleaning works there.

9. The plaintiff called one witness, a Madam Chung Chui Lin who is a resident of Hanford Garden and who was present at the clubhouse when the accident occurred.

10. Madam Chung told the court in evidence that on the morning of the accident to the plaintiff, she was in the clubhouse reading newspaper on a sofa.  From where she was sitting, she could see the plaintiff putting something onto the notice board standing halfway up the ladder.  She did not see the plaintiff actually falling from the ladder, but when she heard a noise, she looked up and saw that the plaintiff had fallen onto the ground.  Therefore she cannot be certain how high the plaintiff was on the ladder at the time the plaintiff fell.  However, she could remember that after the plaintiff had fallen, the ladder was still standing there.

11. When shown the photographs (agreed into evidence) which showed a wooden ladder and the notice board of the clubhouse where this accident occurred, Madam Chung said that the wooden ladder in the photograph looked similar to the ladder on which the plaintiff was working when she had the accident.  She also said that while the ladder shown in the photograph had two metal strips, the ladder on which the plaintiff was when the accident happened did not have the same metal strips.

12. This evidence of hers was consistent with the evidence of the plaintiff who said that the ladder on which she was working when the accident happened, did not have the metal strip as shown in the photograph.  Moreover, the plaintiff said that the ladder used by her had six rungs, while the ladder shown in the photograph had only five.

13. The defendant did not call any witness.

FINDING OF FACT AND DECISION ON LIABILITY

14. The fact that the defendant did not call any evidence did not prevent the defendant from taking a number of points on the issue of liability.

15. When the plaintiff was being cross-examined by counsel for the defendant, it was suggested to her that she could not have been putting up decorations for the Lunar New Year since there was an internal written report of the defendant which indicated that Lunar New Year decorations had been completed before the date of the accident to the plaintiff.  That suggestion was denied by the plaintiff.  This point however was not pursued by counsel in her final submission.

16. It was also suggested to the plaintiff in cross-examination that the plaintiff could not have been standing on the 5^th rung of the ladder on the basis that the plaintiff’s height being 5 feet 1 inch, her head would have hit the ceiling since the height of the clubhouse lobby was only 8 feet 8 inches from floor to ceiling.  On that basis it was submitted by the defendant that the plaintiff could not have fallen from the 5^th or even 4^th rung of the ladder as claimed by the plaintiff, but at most from the 2^nd or 3^rd rung.  This suggestion was also denied by the plaintiff. 

17. Thirdly, it was suggested by the defendant that the ladder supplied by them was not defective in the way claimed by the plaintiff.  That suggestion was also denied by the plaintiff.

18. It was also suggested to the plaintiff and Madam Chung that the ladder shown in the photographs was the same ladder used by the plaintiff at the time of the accident and which had a metal hinge to steady the ladder when it was unfolded and being used.  That suggestion was denied by both of them.

19. In deciding on the disputed matters, it should at once be noted that all the suggestions made to the plaintiff as stated above, remains suggestion since no evidence had been called by the defendant.  Those suggestions were not backed up by any evidence with possibly one small exception.

20. That one exception is the suggestion the point made that the plaintiff could not have been standing on the 5^th rung on the ladder without hitting her head against the ceiling of the clubhouse lobby given her height to be 5 feet 1 inch.

21. In respect of this point, the height of the clubhouse lobby (which is said to be 8 feet 8 inches) is itself a suggestion by counsel unsupported by any evidence.  But even if that was accepted to be the case, the fallacy of that suggestion made by the defendant is that it is based on an assumption that a person standing on the 5^th rung of a 6-rung ladder would be standing straight and erect.  That would be courting disaster.  It would be reasonable to expect a person standing on the 5^th rung of a ladder not to be standing fully erect and straight up, but rather to be slightly bent and possibly to be also leaning slightly towards the centre of the A-shape so as to keep the ladder with the weight of the person on it in good balance.  That being the case, I cannot see any validity to this point taken by the defendant.

22. Moreover, in the absence of any evidence from the defendant, there is no good reason for me not to accept the evidence of the plaintiff supported by the evidence of Madam Chung that she fell from the A-shaped wooden ladder on which she was working.  I accept both their evidence in this respect and find that to be the fact.

23. That part of the plaintiff’s evidence not supported by Madam Chung relates to the defectiveness of the ladder.  That evidence from the plaintiff is also connected with her evidence that she had, before this accident, referred such defect in the ladder to her superior, Chan Lai Sin, asking for further staff assistance in holding steady the ladder but such request was turned down by her superior because the defendant was short handed with staff.  Moreover, the staff roster from the defendant shows the plaintiff to be the only employed staff of the defendant (not counting the cleaning staff who were employed by the cleaning company, an independent contractor of the defendant) working in the clubhouse at the time of the accident.

24. In the absence of any evidence from the defendant, particularly from Chan Lai Sin, I accept the plaintiff’s evidence both as to the defectiveness of the ladder complained by her as well as her earlier request to her superior which was turned down.

25. From the above findings, I further find that the accident to the plaintiff was caused by the defectiveness of the ladder which made it wobbly when a person climbed on or descended from it as given in evidence by the plaintiff.

26. Once the above findings on facts are made, it becomes irrelevant whether the plaintiff was doing decoration work for the Lunar New Year or some other work for the defendant on the notice board when the accident happened as long as it was work done for the defendant.  There is no suggestion that the work the plaintiff was doing on the ladder immediately before the accident was not work done for the defendant.

27. It is also irrelevant on the issue of liability whether the plaintiff fell from the 2^nd, 3^rd, 4^th or 5^th rung of the ladder once it has been found as a fact that the plaintiff’s fall from the ladder was due to the defect in the ladder.

28. On the facts as found above, there can be no doubt but that the defendant is liable to the plaintiff for negligence as an employer in providing the plaintiff with a defective ladder for her work.

CONTRIBUTORY NEGLIGENCE

29. On the facts as found above, the only avenue open to the defendant on the question of contributory negligence would be that the plaintiff, with prior knowledge of the defect in the ladder, failed to secure the assistance of the cleaner who was in the vicinity of the counter at the clubhouse on the morning of the accident to assist her in holding steady the ladder while she performed her work on it.

30. There is ample authority for the proposition that contributory negligence is based on fault.

31. The question that needs to be asked therefore is, given the facts of the present case, what was the fault of the plaintiff. 

32. Having accepted the plaintiff’s evidence that she had told her superior, Chan Lai Sin, about the unsteady nature of the ladder and had requested for further staff assistance when using the ladder, it must follow that the defect in that ladder was not only known to the plaintiff but was also made known to her superior and therefore the defendant before this accident occurred.

33. Not only was the plaintiff’s request for further staff assistance to hold steady the ladder turned down by her superior because of a shortage of manpower, it would also appear that nothing else was done by the defendant to remedy that defect in the ladder with knowledge of that defect.  Even if there was a shortage of manpower, the defendant, as the employer, could easily have replaced the defective ladder.

34. In failing to take any steps after being told of the defect in the ladder, can the defendant now turn around and say that the plaintiff failed to reasonably take care of herself by seeking assistance from the cleaner in holding steady the ladder?  I think not because that would be effectively to allow the defendant to delegate its non-delegable duty to the plaintiff.

35. Moreover, when asked by the plaintiff why she did not seek assistance from the cleaner to assist her in holding steady the ladder, the reply from the plaintiff was that the cleaner was employed by the cleaning company, an independent contractor and not employed by the defendant.  Secondly, that the work which the plaintiff had to carry out using the ladder was not something that can be completed in a matter of minutes but would take some time.  In those circumstances, she did not feel that she could impose upon the time of the cleaner who was not an employee of the defendant. 

36. In my view the plaintiff was not being unreasonable in not seeking the assistance of the cleaner for those reasons given by her and more so when her earlier request made to her superior for staff assistance to hold steady the ladder had been turned down by the defendant.

37. I also take into account the fact that the plaintiff was carrying out the work of the defendant when the accident happened and no doubt doing the best she could when the accident occurred as she was provided with a defective ladder by the defendant who had refused to remedy such defect when it was brought to the notice of the plaintiff’s supervisor.  In the circumstances, therefore the plaintiff was not taking any shortcut for her own convenience in her work.

38. Given all the circumstances, I can only come to the conclusion that contributory negligence has not been made out by the defendant.

QUANTUM

History of injuries and treatment

39. Immediately after the accident, the evidence from Madam Chung was that the plaintiff was in so much pain that she could not move, but had to be assisted by others to the sofa at the clubhouse.

40. An ambulance was summoned and she was taken to the Accident and Emergency Department (“A&E Dept”) of Tuen Mun Hospital.  X-ray showed no bone fracture and the diagnosis was coccyx injury which was compatible with blunt trauma.  She was treated and discharged and given four days of sick leave.

41. After the four days of sick leave, the plaintiff returned to her work with the defendant despite some residual back pain.

42. On 24 May 2004, the plaintiff again attended the A&E Dept of Tuen Mun Hospital complaining of back pain.  Tenderness was detected over the lower back but there was no neurological deficit.  She was again treated and discharged and given a further four days of sick leave.

43. After the further four days of sick leave, the plaintiff again returned to her work with the defendant.

44. In November 2004, the plaintiff gave birth to her second child.  After her maternity leave the plaintiff also returned to her work with the defendant.

45. In March 2005, the plaintiff consulted a private doctor, Dr Edward Yan complaining of low back pain.  She was given two days of medication to relieve the back pain and told to return for follow up after the two days of medication, but did not return for follow up.

46. During September and October 2005, the plaintiff’s back pain intensified and she sought treatment from a hospital in Shenzhen and from private doctors and a bonesetter in Hong Kong.

47. In January 2006, the plaintiff was referred to the Physiotherapy Department of Tuen Mun Hospital and also Queen Elizabeth Hospital for physiotherapy treatment.

48. The plaintiff was examined by her own orthopaedic expert Dr Johnson C.K. Lam on 4 September 2006.  In his report dated 8 September 2006, Dr Lam expressed his opinion as follows :

(a)      In so far as diagnosis was concerned, Dr Lam, after reviewing the MRI reports and other earlier medical reports, came to the view that the accident had caused and included the injury to the lumbar area despite the Form 7 making mention only of the coccygeal injury.  The MRI scan and reports suggested disc protrusions at both L4/5 and L5/S1 levels.  Moreover, Dr Lam found that the plaintiff did not have any pre-existing back pain or injury until after the accident, which gradually radiated down her left lower limb.  He therefore concluded that the present impairment to the back was likely to be due to the disc protrusion which resulted from the accident;

(b)     Based on such finding and diagnosis, Dr Lam took the view that the treatment which the plaintiff had received was appropriate and surgery was unlikely to be required.  However, because the plaintiff still had significant impairment and disability to her back, Dr Lam recommended further physiotherapy and occupational therapy, which course should last for about six months after which her back condition should reach maximal medical improvement;

(c)     Dr Lam assessed the plaintiff to have 9% impairment of the whole person but with further rehabilitation it could improve to being 6% impairment in so far as the lumbar injury is concerned.  Adding a further 1% for the impairment to the coccyx and pain, he came to a total assessment of 10% impairment of the whole person and 7% with further improvement;

(d)     As for employability, he was of the opinion that the plaintiff should not be able to return to her pre-accident job at the time of his assessment, but with further improvement, it was likely that she should be able to return to her pre-accident job;

(f)      Dr Lam was also of the view that the duration of sick leave granted to the plaintiff by her treating doctors were appropriate.

49. In a supplemental medical report dated 12 May 2007, Dr Lam, after reviewing the updated medical evidence relating to the plaintiff, assessed the plaintiff to be suffering 10% impairment of the whole person.  As for her employability, Dr Lam commented that it was probable that the plaintiff should be able to return to her pre-accident job but that some reduction in efficiency and endurance was expected.

50. The plaintiff was also examined by the defendant’s orthopaedic expert, Dr Daniel K.H. Yip on 28 February 2007.  In his medical report dated 4 April 2007 Dr Yip was of the opinion that :

(a)      On the question of causation, the plaintiff had injured only her coccyx in the accident in January 2004 which was a very specific and localized injury and which had resolved already.  Dr Yip was further of the opinion that the rest of the plaintiff’s injury was unrelated to the accident, but was suggested by the MRI to be due to pre-existing degeneration of the lower lumbar spine;

(b)     That there had been significant symptom magnification by the plaintiff;

(c)     That the plaintiff had reached maximal medical improvement and there was no indication for further physiotherapy or surgery;

(d)     Dr Yip assessed the plaintiff to suffer a 2% impairment of the whole person for the vocational back pain which he attributed to “normal back pain” and which affects the normal population from time to time;

(e)      He further opined that the plaintiff was able to return to her previous work if she was motivated and her other social problems could be addressed;

(f)      As for the sick leave, Dr Yip stressed that they were not related to the accident but to the plaintiff’s pregnancy and age related back pain. 

51. In a supplemental report dated 4 August 2007, Dr Yip was able to comment on the opinion given by Dr Lam but basically his views remained unchanged as to what was stated by him in his first report.

52. In so far as psychiatric and/or psychological impairment goes, in February 2007, the plaintiff was referred to the East Kowloon Psychiatric Centre for psychiatric treatment and was there diagnosed to have Moderate Depressive Episode.

53. She was examined by Dr Benjamin Lai on 16 July 2007, a specialist in psychiatry who was instructed as an expert in that field by the plaintiff, and in his medical report dated 27 July 2007 Dr Lai gave his opinion as follows :

(a)      The plaintiff was mentally normal before the accident in January 2004;

(b)     The plaintiff’s psychiatric symptoms developed some time after the accident resulting in the Adjustment Disorder with Depressive Mood; the plaintiff’s symptoms included insomnia, depressed mood, irritable mood, loss of interest and energy and pessimistic thoughts likely to have been caused by her low back pain, limitation in mobility and inability to return to work as well as other stresses including marital discord;

(c)     Future treatment will be required to reduce further the degree of her psychiatric symptoms and to re-develop her self confidence which will include both medication and psychotherapy.  Dr Lai recommended a course of psychotherapy with 12 sessions at a cost of $100 per session in the private sector or at $2,000 per session in the private sector, or, if a private psychiatrist was engaged, at $2,500 per session.  Dr Lai recommended the private sector to give the plaintiff timely treatment rather than have to wait for an appointment in the public sector;

(d)     Dr Lai assessed the plaintiff’s impairment due to her psychiatric condition to be in the range of 3% to 5%.  Although she had not been given any sick leave for her psychiatric condition, Dr Lai thought that sick leave ranging from a few weeks to a few months for the psychiatric condition would be appropriate;

(e)      Finally Dr Lai took the view that the marital discord of the plaintiff did not contribute to her psychiatric disability because the plaintiff indicated that she felt relieved after her divorce.

54. The defendant opted not to instruct an expert psychiatrist and did not adduce any evidence from such expert.

Causation

55. The main dispute between the parties in so far as quantum is concerned relates to causation, namely whether the low back pain of the plaintiff was caused by the accident.

56. It is therefore essential that this issue is determined before the rest of the issue on quantum is dealt with.

57. It is the plaintiff’s case that the back pain of the plaintiff resulted from the accident.

58. On the other hand, it is the defendant’s submission, relying on the evidence of Dr Yip that the low back pain of the plaintiff was not caused by the accident.

59. The basis for Dr Yip to come to that conclusion can be found at paragraph 7.4 of Dr Yip’s expert report which states as follows :

“7.4     Causation

The long chronological separation between the first injury and the current episode of back pain as well as the absence of any problematic symptoms in between, led me to conclude that, on the balance of probability, the subject injury did not cause the current back pain.”

60. That basis and the reasoning given by Dr Yip is flawed due to the fact that in setting out the history of the plaintiff’s injuries and complaint, Dr Yip had either ignored or missed out the fact that the plaintiff had consulted Dr Edward Yan in March 2005 complaining of back pain.  That medical report of Dr Edward Yan had been provided to Dr Yip and is included by Dr Yip in item 14 of the documents supplied to him in his expert report dated 4 April 2007.

61. In missing out the plaintiff’s complaint made to Dr Edward Yan in March 2005 of her back pain, this no doubt led Dr Yip to conclude that there was “absence of any problematic symptoms in between” as stated by him in paragraph 7.4 of his report cited above.

62. Moreover, all the other medical reports from Government hospitals and treating doctors consistently showed the plaintiff to have history of back injury or back pain on and off after the accident and that all of the treating doctors including Dr Chan King Man of the Orthopaedic and Traumatology Specialist Clinic was of the view that the plaintiff’s back pain was caused by the accident.

63. There is therefore sufficient independent evidence from such treating doctors (which I accept) and from the plaintiff’s own expert to satisfy me that I should reject that flawed opinion from Dr Yip and to find that the back pain of the plaintiff was caused by the accident and is genuine.

64. It follows from the finding above that the psychiatric/psychological condition of the plaintiff was also caused by the accident since there is no dispute that such psychiatric/psychological state of the plaintiff came about due mainly to her back pain.  The only dispute between the parties as to causation relating to the psychiatric/psychological condition was linked to the causation relating to the back pain.

Pain suffering and loss of amenities

65. Having rejected the opinion expressed by Dr Yip in relation to causation of the plaintiff’s condition, I am further of the view that, from all of the medical evidence adduced in this case, I prefer the opinion expressed by Dr Lam in so far as the orthopaedic aspects of this case is concerned since his opinion is in line with the rest of the medical evidence in this case relating to the plaintiff.

66. Therefore where Dr Lam’s opinion conflict with those of Dr Yip, I accept the opinion expressed by Dr Lam.

67. I also accept the expert evidence of Dr Lai as contained in his expert report in the absence of any other expert psychiatric evidence to challenge it.

68. In accepting the opinion given by Dr Lam on orthopaedic aspects, I specifically accept that the condition of the plaintiff can be further improved with treatment, and improved to the extent that the plaintiff should be able to return to her pre-accident work, although that may not be possible as of now.

69. I also accept Dr Lai’s opinion that the plaintiff’s psychiatric condition will further improve with the recommended treatment.  Therefore in assessing quantum for PSLA, that assessment is made with the above in mind.

70. I have also taken into consideration the video surveillance carried out by the defendant on the plaintiff on four specific days during the period between 27 June and 16 July 2007.

71. Whilst on all those occasions, the plaintiff was seen to be holding a walking stick, it was also quite clear from the video that she was not relying on the walking stick to any extent.  Indeed, when cross-examined on this aspect the plaintiff frankly admitted that it was Dr Chan King Man who recommended her to hold onto a walking stick so that she would something to rely on if it became necessary; in other words, it was something that she could fall back on if needed.

72. Bearing all of the above in mind, a reasonable amount to compensate the plaintiff for pain suffering and loss of amenities would be $350,000.  In arriving at this figure, I had been referred by the plaintiff to the award made by Sakhrani J in the case of Lai Kam Wah v. Wing & Kwong Co. Ltd, HCPI 1131/2002, in which Sakhrani J awarded a similar amount for PSLA for orthopaedic and psychiatric conditions which are very similar to those conditions and disabilities suffered by the present plaintiff.

Loss of earnings (pre-trial)

73. It is agreed between the parties (despite what has been pleaded in the Revised Statement of Damages) that the plaintiff has received full payment of salary up to the end of June 2006. 

74. Before the accident, the plaintiff’s monthly salary was $8,000 per month.  In 2006, that monthly salary of the plaintiff was increased to $8,100.  However, her terms of employment entitled the plaintiff to 13 months’ salary in a year.  Therefore her average monthly salary after the increase in 2006 comes to $8,775 per month.

75. Her loss of pre-trial earnings comes to :

(a)      for the 39 days from the end of June 2006 to 8 August 2006, it works out at $8,775 x 39/30 giving $11,407;

(b)     for the period from 9 August 2006 to date of judgment, this works out at $8,775 x 22.5 months giving $197,438.

Together they come to $208,845.00.  Adding on a further 5% for loss of MPF, the total pre-trial loss of earnings comes to $219,287.00.

Special damages

76. Special damages have been agreed between the parties in the amount of $19,000 and that sum will be awarded.

Future medical expenses

77. Future medical expenses claimed are only in respect of the future psychiatric and psychological treatment recommended by Dr Benjamin Lai.  Dr Lai recommends the plaintiff to receive further psychiatric treatment (medication) as well as further psychotherapy.  The psychiatric treatment is recommended for a further one to two years whereas for the psychotherapy a course of 12 sessions is recommended.  The psychiatric treatment in the public sector will costs $2,400 at $100 per session, but if given in the private sector, it will cost $36,000.

78. No specific advantage is stated by Dr Lai as to receiving the psychiatric treatment from the private sector as opposed to the public sector.  Indeed, Dr Lai did state in his medical report that the plaintiff has been receiving psychiatric treatment from the public sector since February 2007 and has had some improvement in her psychiatric condition.

79. In the circumstances, it would be reasonable for the plaintiff to continue to receive psychiatric treatment from the public sector and the amount assessed will be $2,400 as recommended by Dr Lai.

80. As for future psychotherapy treatment, although treatment in the public sector will also cost $100 per session, Dr Lai did recommend treatment to be given to the plaintiff from the public sector.  The reason given by Dr Lai is that it takes too long to wait for an appointment with a clinical psychologist in the public service when the plaintiff’s condition is such that there is history of suspected aggressive behaviour to her children.  Therefore the advantage in the private sector is to allow a timely arrangement of psychological treatment.

81. The costs of such psychotherapy in the private sector by a clinical psychologist is $2,000 per session, or, if given by a private psychiatrist, it is $2,500 per session.  Therefore the costs of such psychotherapy range from $24,000 to $30,000.

82. No good reason was given by Dr Lai as to any advantage a private psychiatrist may have over a clinical psychologist.  On that footing, while I accept his recommendation that the psychotherapy should come from the private sector, it would also be reasonable to expect that such treatment can be properly given by a clinical psychologist without the need to resort to a private psychiatrist.  Therefore I assess future cost of psychotherapy to be $24,000.  Totally the cost of future treatment is assessed at $26,400.

Loss of future earnings

83. The plaintiff has not been able to work up to the time of trial mainly because of her psychiatric and/or psychological condition.  On the basis that future psychiatric and psychological treatment has been recommended by Dr Lai for a further two years, there should be some future loss of earnings pending the completion of such treatment giving the plaintiff a chance to recover to the maximum.

84. I am not attracted by the argument that during the time she is to undergo the future treatment, she may still be able to obtain some alternative form of employment.  The psychiatric or psychological impairment to the plaintiff affects her mental state such that it affects her in any work she undertakes. 

85. While Dr Lai does not rule out the possibility that the plaintiff will be able to return to her pre-accident work, that statement has to be read in context of the further treatment which he recommends for her.

86. Accordingly, loss of earnings will be assessed with a multiplier of 2 given the circumstances of this case, when after the further treatment to the plaintiff, she should be able to return to her pre-accident work.

87. This head of damage is therefore assessed at $8.775 x 12 x 2 giving $210,600.  Adding on a further 5% for MPF will give $221,130 which is the figure assessed for future loss of earnings.

Loss of earnings capacity

88. There is a claim for loss of earnings capacity.  However, given all the circumstances of this case, the plaintiff’s risk of being handicapped in the labour market in future is not large.  Her orthopaedic injuries have sufficiently recovered to the extent that even her own expert in the field was confident that she could return to her pre-accident employment. 

89. Although some future loss of earnings was assessed, that was to allow her to fully recover from her psychiatric and psychological disabilities which is, by no standard, of any great severity.  In the circumstances, any loss of earnings capacity will only be of minimal significance and no award will be made under this head of claim.

Interest

90. Interest for PSLA will be awarded at 2% p.a. from the date of the Writ.

91. Interest for Pre-trial loss of earnings and the agreed Special Damages will be awarded at half judgment rate from the date of the accident.

Summary of assessment

92.                                                              

93. From the above sub-total the amount of $3,626 being ECC compensation already received by the plaintiff will be deducted giving $892,995.

CONCLUSION

94. Accordingly, judgment will be given in favour of the plaintiff in the sum of $892,995.00 against the defendant.

COSTS

95. There will be a costs order nisi that the defendant pays the plaintiff her costs of this action to be taxed on District Court scale, if not agreed, for the reason that the total quantum assessed falls well below the District Court jurisdiction.

96. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.