WONG CHUN LAM v. TAI ON CIVIL ENGINEERING LTD

HCPI 937/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 937 OF 2006

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J U D G M E N T

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1. On 25 November 2003 the plaintiff, now aged 49, suffered a head injury in the course of his work.  He had been employed by the defendant company since March 2002 as a construction site casual worker.  At the time of the accident he was operating a machine which compacted newly laid asphalt in Stanley Beach Road.  The machine malfunctioned and the handle of the machine struck his head. 

2. The defendant’s liability for this accident is not in issue.  Judgment was entered by consent in favour of the plaintiff on 9 April 2008.  

3. He brings this action by his wife Madam Chung Oi Ying, as next friend, following medical evidence that he is unfit to give instructions to counsel.  As a result he did not attend court during the trial.  It was Madam Chung Oi Ying who gave oral evidence as to his disabilities.  Medical evidence both for the plaintiff and the defendant was adduced by way of medical reports.  No doctor gave oral evidence. 

4. Following the accident the plaintiff was taken to the Accident and Emergency Department of Pamela Youde Nethersole Eastern Hospital.  There was an inverted v-shaped laceration on his forehead which was sutured.  The treating doctor noted that the plaintiff was alert and oriented and that the plaintiff had said that he had not lost consciousness.  X-ray of his head was normal and the plaintiff was discharged. 

5. Two days later, on 17 November 2003, the plaintiff returned to the hospital complaining of headache and dizziness.  He was admitted to the surgical unit.  A C.T. scan revealed no abnormality and he was discharged on 28 March.  He was followed up at the surgical outpatient clinic but continue to complain of persistent headache, dizziness, insomnia, and emotional change, evidencing itself in bad temper.  As a result on 26 March 2004 he was referred to the Psychiatric Department of Queen Mary Hospital where he was first seen on 18 June 2004.  He was initially diagnosed to be suffering from post-concussional syndrome but he displayed significant psychotic symptoms during treatment.  Dr Mark Fu Kwok, his treating doctor, took the view that he was suffering from a definite psychotic process requiring vigorous treatment and that he was “likely to be suffering from schizophrenia, with a grim prognosis”. 

6. Since that time the plaintiff has been receiving outpatient treatment and medication every 16 weeks.  Madam Chung, his wife accompanied the plaintiff to these consultations and described the plaintiff’s symptoms to Dr Mark.  From an early stage Dr Mark took the view that he “had suffered permanent loss of earning capacity of a severe degree, due to the intractable psychotic process”. 

7. In a reported dated 17 January 2005 Dr Mark made the following comments :

“Mr WONG was noted to have persistent headaches since the injury.  His personality changed from being gentle and kind to children, to such a state that he was displaying explosive temperament at home, and might fight with children over food, even hitting out at them.  In rage, he would throw things about.  He could hardly sleep, turned moody and dull.  When suffering headaches, he would be obstinate, and might say the analgesic medication issued him is poison.  Throughout the past few months, he displayed abnormal behaviour of scolding aloud pointing his fingers into the air, or laughing for no reason, asking why people showed hatred toward him.  When asked directly, he admitted to hearing voices talking to him.  As he could not sleep well, he might wander in and out of their housing unit at night so much so that his wife must take away his keys.  When last seen on December 10, 2004, his wife reported that he was looking for his keys, claiming he needed them ‘to start his machine’.  He also claimed people in the park many want to catch him.  After bathing, he would just walk out naked. …” 

8. Apart from the report of Dr Mark, the plaintiff has been seen by two psychiatric specialists, Dr Char Nie Chen (the plaintiff’s expert) and Dr Chung See Yuen (the defendant’s expert) and by a neurologist Dr Edmund Woo (the defendant’s expert).  

9. At none of the examinations was the plaintiff himself able to answer questions.  Dr Chen described him as “sitting on the sofa, talking or murmuring only to himself”.  Dr Woo said that he “sat staring towards the ceiling during most of the interview”.  Dr Chung said that he mainly stared ahead, talked to himself and made meaningless gestures.  On one occasion he lay on the floor.  When seen by all three doctors information was provided by Madam Chung.  

10. Dr Edmund Woo’s opinion was that from a neurological viewpoint global cognitive dysfunction as severe as that exhibited by the plaintiff would only be observed after severe head injury and that certain physical tasks revealed inconsistency with neurophysiological principles and raised suspicion that his deficits were either “feigned or grossly exaggerated for the purpose of the examination”.  He stated that the plaintiff should have recovered from such mild head injury over 6 to 12 months and had been able to resume work six months after the accident.  

11. The two psychiatric experts made differing diagnosis of the plaintiff’s condition.  Dr Chung See Yuen saw the plaintiff in February 2005.  He contrasted the severity of the intellectual, cognitive and memory functions presented by the plaintiff with the minor nature of the injury sustained by the plaintiff.  For that reason and because of his view that many of his complaints, like cognitive impairments, strange behaviour and lack of communication with other people, could not be explained from a psychiatric point of view and because in his view Madam Chung had difficulty in elaborating that complaints, he found that this suggested to him they were not genuine.  He doubted the genuineness of the plaintiff’s complaints. 

12. His view was that the plaintiff was only suffering from some mild symptoms of postconcussional disorder and that he would have been mentally fit to return to his pre-accident job six months after the accident.  

13. Dr Char Nie Chen who saw the plaintiff on 18 May 2006 and had seen the reports of Dr Woo and Dr Chung excluded a diagnosis of schizophrenia.  His diagnosis was psychotic disorder due to a general medical condition.  He was of the opinion that the diagnosis better accounted for the plaintiff’s symptoms than postconcussional disorder.  He also commented that the plaintiff had not displayed symptoms of anxiety which are common to people with postconcussional disorder and that the absence of posttraumatic unconsciousness makes the diagnosis of postconcussional syndrome unlikely.  He assessed the plaintiff’s loss of earning capacity of 100% but indicated that might be reduced if the plaintiff received in-patient treatment for at least six months, a course of action he highly recommended.  

14. Having considered the reports I am satisfied that the plaintiff is suffering from a psychiatric disorder and that such disorder is as a result of the accident on 25 November 2003.  

15. On the evidence I have seen and heard I prefer the diagnosis of Dr Char Nie Chen that the plaintiff is suffering from a continuing psychotic disorder rather than simply mild concussional disorder.  That coincides with the findings of Dr Mark who had been seeing and treating the plaintiff over the past four years that the plaintiff has displayed significant psychotic symptoms. 

16. One of the reasons given by Dr Chung for disagreeing with this diagnosis is that one of the diagnostic criteria for posttraumatic psychosis due to a general medical condition is the presence of prominent hallucinations and delusions which he had been unable to elicit it in his examination.  I accept Dr Chen’s comments that although he and Dr Chung may not themselves have elicited clear-cut delusions or hallucinations there was plenty of evidence from the plaintiff’s treating doctors of such features.  I also accept Dr Chen’s explanation in his second supplementary report of 17 May 2007 of why posttraumatic psychosis often results from mild head injury and commonly demonstrated atypical or borderline symptoms which are not clear-cut schizophrenia symptoms. 

17. It seems to me that the plaintiff’s psychosis is probably the explanation for the inconsistencies noted by Dr Edmund Woo in his physical examination of the plaintiff rather than a conclusion that he was feigning symptoms. 

18. One of the reasons given by Dr Chen for rendering the diagnosis of postconcussional symptom unlikely is the absence of posttraumatic unconsciousness.  I consider that although Madam Chung, who was not present at the accident scene, may have given a history of the plaintiff having “fainted” after the accident and helped to sit by the roadside and “waking up” in hospital, Dr Chen was entitled to take the view he did because of the history given by the plaintiff at the time he arrived at hospital of not having lost consciousness and his Glasgow Coma Score being 15/15. 

19. Even if there had been a period of loss of consciousness.  I consider that the intractable and chronic nature of the plaintiff’s condition points clearly to Dr Chen’s diagnosis of “posttraumatic psychosis” due to a general medical condition (i.e. the head injury) rather than simply postconcussional symptoms. 

20. This finding and my conclusion that the plaintiff’s condition is intractable and chronic is strongly influenced by my finding that Madam Chung was an honest and reliable witness.

21. She is an unsophisticated person.  I do not believe that the broadly consistent history she gave Dr Mark on each of the follow-up visits recorded in the hospital notes over the past four years were fabrications.  In court her answers to questions put to her about her husband’s condition appeared spontaneous rather than contrived.  I do not believe she was exaggerating his symptoms.  She readily agreed that although her husband is still hot-tempered his temper has improved as a result of medication.  While she said that her husband had assisted with some domestic chores before the accident she did not seek to pretend that he had been very helpful.  She did not try to claim that he suffered from seizures.  While she said that there were occasions he fell down she did not allege that it happened frequently.  She admitted that he was now sleeping better. 

22. I am satisfied that any inconsistencies in her evidence were minor and can be explained by the usual differences in accounts given on different occasions when different aspects of a situation are stressed and by her ability to recollect different things on different occasions. 

23. In his able closing submissions Mr Law for the defendant suggested that the credibility of her account was undermined by her reaction or rather lack of reaction to the recommendation of Dr Chen in his report of 14 October 2006 that the plaintiff receive at least six months inpatient treatment.  I do not find this submission to be well founded.  I accept Madam Chung’s evidence that she would have been happy for her husband to receive such treatment.  She maintained that she had told Dr Mark that Dr Chen had said that her husband needed to go to hospital for six months, but admitted that she had not provided him with Dr Chen’s report or indeed given Dr Chen’s full name.  She said that Dr Mark’s reaction was to ask her whether she thought her husband’s condition would improve after only six months and to tell her that her husband’s condition would take a long time to cure.  This account of Dr Mark’s reaction struck me as having the ring of truth.  I did not find anything significant in the fact Dr Mak did not record this comment bearing in mind a remark from a person of little sophistication, who had not clarified who Dr Chen was.  

24. I accept Madam Chung’s evidence that she subsequently spoke to a social worker about the question of inpatient treatment who said that it depended on Dr Mark writing a letter of recommendation which would not be easy to obtain.  I have no reason to doubt her evidence that she did ask her lawyer to help.  I do not find it surprising in the circumstances that Madam Chung did not take that matter any further.  I do find it surprising, whether or not Madam Chung had asked for their assistance, that her solicitors did not take the matter further.  

25. I did not find that surveillance evidence cast any doubt on the credibility of Madam Chung.  The plaintiff appeared untidy and walked slowly.  His only encounter with another individual was when a young man came up from behind him in the corridor and appeared to attempt to talk to him.  The film did not suggest that the plaintiff responded.  The subsequent film taken when the plaintiff walked some distance to a grassy area was not inconsistent with Madam Chung’s evidence.  Although she was reluctant for him to go out unsupervised she accepted that he sometimes did so.  She gave as examples situations when she gone out shopping herself or when one of their five children had left the door open. 

26. I accept Madam Chung’s evidence that the accident has brought about a complete change in the plaintiff’s personality.  From a normal good-tempered husband he is now someone who speaks incoherently and with whom it is not possible to have a normal conversation and who, even though there has been some improvement, is a person prone to fits of bad temper.  For someone who has from time to time assisted with household duties he is now someone who spends most of his time sitting on the floor of the flat and who needs assistance in washing and going to the lavatory.  He now sleeps in his daytime clothing rather than wearing pajamas.  

27. While he himself may feel able to go out for walks outside the home I accept that she is reluctant to allow him to go out of their flat unsupervised for fear that he might not be able to find his way home.  I find telling her observation that although he did not cause trouble when he went outside the flat many people were afraid of him. 

Improvement in the future

28. Despite the fact that as early as 14 October 2006 Dr Chen “highly recommended” that the plaintiff be treated as an inpatient for at least six months and commented that there was “a possibility” that his current psychiatric impairment and loss of earning capacity might be reduced by such treatment and Dr Chung’s comments in April 2008 that if, contrary to his opinion, the plaintiff is suffering from a psychotic disorder due to a general medical condition, his prognosis would be good after undergoing such treatment, no attempt appears to have been made by his legal advisors to defer the trial until after such treatment had taken place (nor apparently have the defendant’s solicitors suggested it). 

29. The plaintiff’s prognosis is of great significance for his damages for PSLA, loss of future earnings, cost of care, cost of future medical treatment and Madam Chung’s claim for loss of his society.  If such treatment had occurred, his future might be considerably more predictable. 

30. However in the circumstances this court is required to assess where the probabilities lie as to the future with somewhat limited evidence before it, a task made harder by the Master’s order of 11 October 2007 that the then existing medical reports be adduced without oral evidence. 

31. On one hand are the doctors who have been treating the plaintiff for the last two years and Dr Chen.  Dr Mark has not hitherto recommended inpatient treatment and has described the plaintiff’s condition as severe and intractable and he said that unless his condition improves the plaintiff is unlikely to be able to return to work and indicates that the chances of improvement are a matter of speculation.  Although Dr Chen “highly recommended” inpatient treatment, because of insufficient progress with outpatient treatment he was only prepared to say that successful treatment “may” reduce the percentage of current psychiatric impairment of a whole person and that there was “a possibility” that it might reduce his current loss of earning capacity.  He said that the prognosis was guarded. 

32. Dr Chung on the other hand in his most recent report of 1 April 2008 is far more optimistic of the outcome of such treatment.  His view is that :

“… The impairment levels caused by the mental problems could become mild and compatible with most usual functions after the treatment.”

and it is likely that he could return to the pre-accident job after the six months’ hospital treatment.  

Future medical treatment

33. I have no doubt on the evidence before me that the plaintiff should receive at least six months’ inpatient treatment because of the chance it offers him for greater improvement of his condition than outpatient treatment has brought him.  I feel confident that if the reports of doctors as eminent as Dr Chen and Dr Chung were brought to the attention of those currently treating the plaintiff then he would be admitted into a government hospital for such treatment.  The plaintiff would be entitled to the costs of such treatment which at $68 per day over six months (183 days) would amount to $12,444. 

34. While I accept that such treatment could have some beneficial effect on the plaintiff’s current condition (which will be relevant to his damages for PSLA, cost of future care, and Madam Chung’s claim for loss of society) I am unable to find, much as I would wish to do so, that the dramatic outcome predicted by Dr Chung would be the probable, rather than a possible, outcome.  I consider regrettably that the probabilities point to the plaintiff remaining unable to resume employment and needing someone to supervise him for at least part of the day. 

35. I find the plaintiff’s claim for loss of future outpatient treatment at $100 per consultation every 16 weeks (or 3.25 times per year) reasonable.  Adopting a multipler of 13 under this head the plaintiff is entitled to $4,199. 

Loss of earnings

36. I find that the plaintiff has been unable to resume any form of employment since the accident and probably will be unable to do so.  The plaintiff’s average earnings at the time of the accident are agreed to have been $15,016. 

37. I am satisfied by the evidence of Mr Wong Siu Ching (“Mr Wong), a director of the defendant company, and extracts from the Hong Kong Monthly Digest of Statistics that wages for workers in the construction industry performing similar work to the plaintiff have decreased since the time of the accident. 

38. Mr Wong produced evidence of wages of a worker who was said to perform comparable work to that performed by the plaintiff.  Unfortunately Mr Wong could not say on what basis this worker performed work comparable to the plaintiff.  He accepted that workers like the plaintiff who operated machinery received higher pay than workers who did not, but was unable to say whether the worker concerned himself operated machinery.  He had relied on his foreman to produce the wages of a comparable worker. 

39. In my view the fairest means of arriving at the plaintiff’s current wages had he continued to work would be to reduce his wages in the same proportion as the wages of male labourers engaged in government building and construction projects have been reduced. 

40. In November 2003 their average daily wage was $599.80.  In January 2008 their average daily wage had decreased to $566.10.  

41. Using the same proportion of reduction in the plaintiff’s wages would result in his monthly wage now being :

$15,016 x 566.1/599.8 = $14,172. 

His median monthly wage from the date of accident would therefore be :

($15,016 + $14,172) ¸ 2 = $14,594.  

His pre-trial loss of earnings would therefore be :

$14,594 x 55 months = $802,670. 

I find an appropriate multiplier in the case of the plaintiff bearing in mind his age (49) and occupation is 9.  Adopting such a multiplier his post-trial loss of earnings would be :

$14,594 x 12 x 9 = $1,576,152. 

42. His loss of Mandatory Provident Fund would accordingly be :

($802,670 + $1,576,152) x 5% = $118,941. 

PSLA

43. I have been referred to a number of cases cited by counsel including :

(1)     Lily Tse Lai Yin and Others v. The Incorporated Owners of Albert House, HCPI 828/1997;

(2)     Chan Sau Wai v. Lam Kin Sum trading as Kim Yuen Mineral Co., HCPI 1168/2005; and

(3)     Wu Wai Wah v. Fung Kwong Hung and Another, HCPI 256/2006.  

44. While I borne in mind that there may be improvement if the plaintiff undergoes six months inpatient treatment and that there has been some improvement in his temper and sleeping, nonetheless I consider the condition of the plaintiff is more serious than in these cases.  He was not able to give evidence in this trial.  His condition severely restricts his ability to relate to others.  He cannot live independently.  I consider these features are likely to persist even after six months’ inpatient treatment.  In my view his injury puts him beyond the serious injury category into that of substantial injury.  I consider a figure of $650,000 is appropriate under this head.  

Cost of care

45. I find that since the accident the plaintiff does need to be supervised, and from time to time assisted, in his activities throughout the day and night, it would not be realistic or cost effective to employ a live-in domestic helper to carry out these activities bearing in mind that the plaintiff, his wife and five children now live in a small public housing flat.  It was reasonable for Madam Chung to give up her employment as a tea lady.  She was employed on a contract of $6,300 per month.  I find that her salary over this period should be recoverable :

$6,300 x 55 months = $346,500. 

46. While I find it improbable on the evidence that six months’ inpatient treatment will render the plaintiff capable of returning to any kind of employment it has not being demonstrated to my satisfaction on the balance of probabilities that the defendant will not be capable of being left at home unattended for at least part of the day after he receives such treatment if Madam Chung were to return to work.  Even now she feels able to leave him at home if she goes shopping.  While it would probably be inappropriate to return to fulltime work leaving the plaintiff at home unattended for the whole day, it has not been demonstrated that she would not be able to leave him for half the day.  On the basis that she could earn $3,300 for half a day’s work, I accept that she would probably sustain a loss of $3,000 per month if she were to forgo half a day’s wages in order to check on and supervise the plaintiff for the reminder of the day.  On the basis that she would have probably given up work and performed such duties in any event after the plaintiff’s retirement I find it appropriate to adopt the same multiplier as for the plaintiff’s loss of future wages, i.e. 9.  I award damages for future loss of care as follows :

$3,000 x 12 x 9 = $324,000. 

Loss of society

47. Based upon the plaintiff’s current condition the accident has deprived Madam Chung of normal marital companionship and instead she has to face the years ahead with a person with whom she cannot hold a normal conversation or engage in normal activities outside the home but must now supervise and assist with his care. 

48. The statutory maximum award under this head is $150,000.  I would have regarded that the sum of $100,000 appropriate under this head but taking into account some limited improvement in the plaintiff’s condition and sociability if he undergoes six months’ impatient treatment and the fact that he was working 26 days a month from 8 a.m. to 6 p.m. prior to the accident and so in the initial years would have been able to spend limited time with her, I regard a sum of $85,000 is appropriate under this head. 

49. I assess the plaintiff’s damages as follows :

 

PSLA	$650,000
Loss of earnings :
(a)      Pre-trial	$802,670
(b)     Post-trial	$1,576,152
Loss of MPF	$118,941
Loss of society	$85,000
Cost of care :
(a)      pre-trial	$346,500
(b)     future	$324,000
Cost of future hospital treatment	$12,444
Cost of future outpatient treatment	$4,199
Special damages :
(a)      Medical expenses (agreed)	$5,400
(b)     Travel expenses (agreed)	$1,908
(c)     Tonic food (agreed)	$3,500
Less:  Periodical payments received under the Employees’ Compensation Ordinance	$245,872
Total	$3,684,842

50. I accordingly give judgment for the plaintiff in the sum of $3,684,842 with interest at 2% on damages for PSLA from the date of service of the writ until the written judgment and at half judgment rate on pre-trial special damages from the date of accident until judgment (appropriate allowance being made for the receipt of periodical payments made under the Employees’ Compensation Ordinance).  I make the following order nisi to costs unless either party applies to be heard within 14 days of delivery of judgment.  The plaintiff’s costs to be taxed and paid by the defendant.