HO SUK MAN v. SIT TIM MAU AND OTHERS

HCPI 122/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 122 OF 2011

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J U D G M E N T

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Introduction

1.  This is a personal injury case where liability is admitted.  All that remains for decision is an assessment of damages suffered by the plaintiff as a result of a traffic accident.  As it turned out, the plaintiff suffered with a pre-existing condition at the time of the accident, and it is therefore, necessary to resolve whether or not this will affect damages to be assessed.

2.  The removal of liability as a matter for resolution only necessitates a brief description of how the accident occurred.  On the morning of 28 February 2008, the plaintiff was a passenger on a public bus on her way to work.  As a result of a traffic accident ahead, the bus driver suddenly slowed down to stop or had stopped the bus when it was struck from behind by a medium goods vehicle driven by the defendant.  The collision forced the bus forward, causing it to collide into the rear of a medium goods vehicle which was the last vehicle in a four vehicle pileup.  According to the plaintiff, she was sitting in the second last row of seats at the rear of the bus when it suddenly slowed down and was hit from behind which caused her to be thrown forward.  She hit her left knee onto the seat in front of her.  She could not recall whether she hit her head as well, as she had her hands held out to protect herself as she was pushed forward.  After the collision, the plaintiff’s seat was at a forward incline, trapping her between the two seats.  Other passengers came to her assistance and freed her from the seats.  She was assisted off the bus and rested by the roadside.  At the time, she felt pain mainly to her left knee and lower back.

3.  The plaintiff brought this claim against the defendant who joined the driver and the owner of the bus and of the vehicle immediately in front of the bus as third parties, being the 1^st to 4^th third parties respectively.  In November 2011, the defendant discontinued his action against the third parties and admitted liability with damages to be assessed.  On 5 December 2011, judgment on liability was entered against the defendant.

The medical history

4.  On the day of the accident the plaintiff was taken by an ambulance to the Accident and Emergency Department of Tuen Mun Hospital mainly complaining of injuries to her left upper and lower limb.  The doctor upon examination of the plaintiff noted that she was alert with her vital signs being stable, but observed there was erythema with tenderness on her left knee and a tender spot on her left upper arm.  An X-ray examination of her left knee did not reveal any fracture.  She was discharged and given a sick leave certificate from 28 February to 2 March 2008.[1]

5.  The plaintiff was still experiencing pain, and on 3 March 2008 she attended Dr Chang Shao for treatment whom she saw on several occasions.  According to the doctor’s notes she complained of left knee injury and left sciatica. [2] He recommended that she undergo physiotherapy treatment for her back pain which she did.[3]  She also saw Dr Kuan Ying Fatt of the same clinic on 25 March 2008 and consulted him on a regular basis thereafter.  She complained of low back pain which radiated down her left thigh or leg.[4]  He recommended that she continue with the physiotherapy treatment.  He referred the plaintiff for an MRI scan of the lumbar spine at the Hong Kong Baptist Hospital on 19 April 2008.  It revealed that the lumbar spine had lost its normal lordosis, but alignment still appeared satisfactory and that there was no abnormality.[5]  She kept seeing Dr Kuan complaining of back pain extending to her left thigh and leg and on 26 July 2008 he recorded that she complained of left anterior hip pain.[6]  In further consultations, she kept complaining of pain to her left hip, and on 14 October 2008 an X-ray was taken which according to Dr Kuan revealed left hip mild dysplasia with shallow acetabulum and subchondral cyst.[7]  She continued to see Dr Kuan for physiotherapy treatment.[8]

6.  On 24 December 2008, the plaintiff consulted Dr Kwok Kin Wa, an orthopaedic surgeon.  He diagnosed her to have back injury and left hip subluxation. He recorded that she had previously complained of left hip pain, but no one had carried out any further examination.[9] Thereafter she regularly consulted Dr Kwok for her hip pain.[10]  Dr Kwok obtained an old X-ray film of the plaintiff’s pelvis from 2004 and found at that time she had mild left hip subluxation.  He referred her to a rehabilitation clinic for physiotherapy where she was treated by Dr Arran Leung from January 2009 onwards.[11] Dr Leung reported in August 2011 that the plaintiff’s left hip condition had improved since the commencement of physiotherapy, but her symptoms tended to worsen with prolonged sitting and other strenuous activities.  It was recommended that she continue her physiotherapy and weight control in order to improve.[12]  In a later report in October 2012, Dr Leung noted that he had been seeing her since March 2011 on nearly a weekly basis and that she consistently complained of persistent pain around her left hip.

7.  Dr Kwok also referred the plaintiff to the orthopaedic clinic at Tuen Mun Hospital in January 2009 noting that she complained of persistent left hip pain.[13] He highlighted that in 2004, the plaintiff already had mild lateral subluxation.[14]  It was arranged that the plaintiff see Dr Wong Hok Leung at the orthopaedic clinic.  He conducted an examination of her on 12 June 2009 and noted that she had a limp and her left hip motion was slightly restricted by pain.  He also noted mild tenderness over her lumbar spine.  An X-ray examination of her left hip on 15 June 2009 showed mild subluxation of the left femoral head and acetabular dysplasia. The plaintiff was referred to the physiotherapy department for treatment.  On 14 December 2009, she was reassessed.   An MRI scan also showed a left acetabular labrum tear and a sublabral bone cyst.  Dr Wong discussed the option of surgical treatment with the plaintiff.  It had been raised with her before but with physiotherapy and analgesics her left hip pain improved.  She preferred to continue with this treatment.  He concluded that the plaintiff suffered from left hip dysplasia, labrum tear and bone cyst formation.  He noted that hip dysplasia was usually a developmental condition but that a labrum tear could also be related to an injury.[15]

8.  The plaintiff also sought medical assistance from other doctors about her condition.  She consulted orthopaedic surgeons, Dr Chien Ping in December 2009 and Dr Poon Tak Lun in December 2010.  Dr Poon in February 2011 noted that she was suffering with erosion of cartilage of the left hip causing chronic hip pain for over a year.  He prescribed medication to her to treat her condition.[16]

9.  As already noted, the plaintiff had previously injured her left hip.  It happened in May 2004 when the plaintiff jumped down from a height and injured her right ankle as well as her left hip.  She was treated by Dr Chang Shao who prescribed medication and a course of physiotherapy.[17] An X-ray examination revealed she had mild lateral subluxation of the left femoral head and a suspicious cystic lesion at the supero-lateral edge of the left acetabulum.[18]  After her treatment in August 2004, the plaintiff appeared to make a full recovery and was asymptomatic until after the accident.

10.  There is no dispute that the defendant is liable for damages arising from injuries to the plaintiff’s left knee and back.  What is in dispute is whether the plaintiff’s symptoms of her left hip dysplasia and labral tear were caused, triggered or aggravated by the accident, and if they were, how were they to be assessed against the state and natural progression of the hip dysplasia.

The medical evidence

11.  Before I address the medical evidence, it is necessary to briefly explain the medical condition which is at the centre of the dispute between the parties.  It is not disputed that the plaintiff suffers with the developmental condition of hip dysplasia.  From the medical evidence and the medical research literature submitted, it appears that hip dysplasia is a condition which occurs in a small percentage of the population.  In basic terms, the hip joint is a ball and socket joint.  The femoral head (the ball of the femur) is normally firmly contained inside the acetabulum (the hip socket).  There is a fibrous rim of cartilage, known as the labrum, which surrounds the hip socket.  It helps keep the femoral head inside the acetabulum and provides stability to the hip joint.  Some people, however, have a shallow acetabulum so that the femoral head is not firmly secure within the acetabulum which is therefore prone to move and rub abnormally.  This condition is known as hip dysplasia.  The abnormal movement or rubbing is called subluxation which also causes abnormal concentration of pressure or stress within the hip joint because of uneven contact between the femoral head and the acetabulum.  Sometimes a tear to the labrum, also known as a labral tear, occurs and generally as a result of degeneration or trauma.

12.  Most people with hip dysplasia remain asymptomatic throughout their lives. However, some people can become symptomatic, and if they do, this can lead, but not always, to a serious hip condition.  A person with this condition is prone to subluxation which can cause abnormal rubbing and abnormal pressure concentration within the hip joint and increase the risk of a labrum tear and cyst formation.  If there is a labral tear this will further destabilize the hip joint and increase subluxation.  The typical symptoms of a hip labral tear include groin pain, clicking and snapping sensations in the hip and limited motion of the hip joint.  It appears that the process of degeneration can be triggered or accelerated as a result of repetitive use and activity or trauma.

13.  For the purposes of these proceedings a joint medical report was arranged, with Dr Lau Chi Yuen, Mike, appointed by the plaintiff’s solicitors and Dr Wong Kowk Shing, Patrick, appointed by the defendant’s solicitors.  The doctors compiled a joint medical report followed by supplementary and second supplementary reports focusing increasingly on the plaintiff’s pre-existing condition of left hip dysplasia and the cause of the labral tear. [19]

14.  A joint assessment by the doctors of the plaintiff took place on 20 October 2011.  She was still consulting Dr Kwok, who prescribed medication to her from time to time.  She was also having physiotherapy treatment once a week with Dr Leung.  She still experienced intermittent hip pain which increased when doing anything involving her lower limbs and putting stress on her left hip.[20]  Her condition did not require her to take any sick leave.

15.  After reciting the history of the accident and the plaintiff’s treatment and recording her present complaints, the doctors noted their joint findings on physical examination to the effect that her general condition was satisfactory, she could sit for about 1 hour and 20 minutes for the interview without a problem but had to stand up sometimes to relieve pain, she could stand on a single leg, and could stand and walk normally as well as on tiptoes but complained of left hip pain, she could not stand or walk on her heels and could squat halfway down only with support.

16.  The plaintiff did not recall any history of injury to her left hip when asked by the doctors.  In any event, they were aware from the medical records of her previous diagnosis in 2004 that she had mild lateral subluxation of the left hip.  When asked about this when testifying in court, the plaintiff claimed she did not remember.  I do not accept her failure to recollect this injury, given what she went through at the time and the extensive treatment she received.[21]

17.  The doctors reported that an examination of the plaintiff’s lumbar spine and lower limbs showed no deformity or swelling.  It was noted that the ranges of motion of her left knee were normal.  There was pain over her left hip with probing.  The ranges of motion of the hips were less on the left side.  There was tenderness over her left anterior iliac crest and hip joint, and left lateral greater trochanter.  The power of the plaintiff’s left hip in general was good but with pain and the Faber test was positive on external rotation but also with pain.[22] It was noted that her sensation was normal and there was no obvious leg length discrepancy.  

18.  They agreed that the plaintiff sustained a left knee contusion without fracture and also probably a mild contusion to the left upper arm.   They also agreed that the plaintiff could have sustained soft tissue back contusion injury.  Dr Lau was of the view that the left hip pain suffered by the plaintiff could be related to the injury she sustained as a result of the accident.  He noted that the plaintiff recalled that her left hip symptoms, including pain and clicking, had started in March 2008, quite early after the accident; it was common for a patient to have referred to knee pain with respect to hip pathology; and the left acetabulum labral tear was compatible with the injury.[23]

19.  They agreed that the plaintiff’s left hip dysplasia was not caused by the accident and that the left hip labral tear could be equally related to an injury or the hip dysplasia. 

20.  Dr Wong was of the view that the hip labral tear was unlikely to have been caused by the accident.  He gave three reasons for his view.  First, there was no mention of any left hip injury recorded in the plaintiff’s initial consultations.  Secondly, the first time she complained of left hip symptoms was to Dr Kwok on 24 December 2008.  This was incorrect as the plaintiff had complained about left hip pain to Dr Kuan on 26 July 2008.  It appears that at the date of report Dr Wong did not have Dr Kuan’s clinical notes beyond May 2008.  When Dr Wong was made aware of her complaint to Dr Kuan, he was still of the view that 5 months after the accident was too remote to attribute it to her left hip injury.  Thirdly, a hip labrum tear was commonly found in patients with hip dysplasia.  He concluded that the plaintiff’s left hip condition, hip dysplasia with labrum tear, was not caused by the accident.

21.  Dr Lau disagreed.  He was of the view that the hip pain could be related to the accident.  He based his view on the following.  First, the onset of the plaintiff’s left hip pain according to her was in March 2008, shortly after the accident.  Secondly, the impact force to the plaintiff’s left knee would have transmitted to the hip joint, causing the injury suffered. Thirdly, the plaintiff sustained a labral tear which as mentioned by Dr Wong Hok Leung could have been injury related.  Fourthly, the plaintiff was asymptomatic before the accident and her hip symptoms started after her injury. 

22.  They agreed that the treatments received by the plaintiff from the attending doctors were appropriate.  They agreed that in relation to the plaintiff’s injuries to her left knee and back, she had attained maximum medical improvement, and there was no further treatment to assist recovery.As for the future treatment for the left hip injury, Dr Lau suggested that the plaintiff continue with the physiotherapy on a regular basis in the future to treat her hip pain.

23.  Dr Lau was of the view that the plaintiff’s left hip injury was still causing her certain functional disability with diminished range of motion of the left hip and left hip pain, especially when walking. He estimated her impairment to be slight with a loss of earning capacity of 4 percent.[24]

24.  In the supplementary joint medical report of February 2012 the two doctors maintained their disagreement with each other as to whether the labral tear as shown on the MRI scan on 14 October 2009 was caused by the accident.  Dr Wong said it was unlikely, even though the plaintiff’s pre-existing hip joint dysplasia may have predisposed her to sustain a labral tear injury or the plaintiff may have had a pre-existing tear being aggravated during the accident.  He also said that the circumstantial evidence did not support such a possibility because the plaintiff would have complained of left hip pain almost immediately after the accident in light of the acute nature of the labral tear and it would not have taken 5 months for the symptoms to develop.  However, I note that it was the case that the plaintiff was complaining of pain in the region of her left hip from the outset, and it is also possible that if the labral tear was brought on by the accident that it gradually got worse and symptoms correspondingly developed.  He also noted that the location and presence of an adjacent bone cyst were inconsistent with a single trauma labral tear in a sitting posture.  All that means in my view is that the plaintiff’s pre-existing hip dysplasia made her more vulnerable to a labral tear in that particular area of her hip joint and his rejection of the force of the impact on the plaintiff’s knee transmitting to the hip joint is based on assumptions I do not accept. 

25.  Dr Wong assumed that the plaintiff was in a normal sitting position at the time of impact and that the force had been relatively mild.  Bearing in mind that the plaintiff was thrown forward from her seat with such force that her seat was on a forward incline, trapping her between the seats, it cannot be assumed the force was mild or that she struck her knee against the seat in front of her in a normal right angle sitting position.  As Dr Lau explained in his evidence, it will depend on the angle and the way her knee struck the seat in front of her, as to where the force would have been transmitted to the hip joint.  Dr Lau also made the point, which I accept, that a hip labral injury is difficult to diagnose and it was not until some 5 months after the accident that the plaintiff’s hip symptoms became apparent.  I should also point out that the medical research literature submitted together with the joint medical reports, emphasized that hip instability can be a difficult disorder to diagnose and can be traumatic or atraumatic in origin and whilst in most cases of chondral injuries in the hip joint, the onset of symptoms is immediate, in some cases the injury will appear innocuous with variable associated dysfunction.  In the case of a tear of the labrum, a medical study found that pain was experienced in multiple areas of the hip and that definitive diagnosis of this condition can be difficult as the clinical symptoms and physical findings may be varied and subtle.[25]

26.  In the second supplementary joint medical report of August 2012 after a review of the X-rays taken in May 2004, December 2008 and February 2011, the two doctors agreed that they showed gradual progression of the left hip dysplasia compatible with its natural history.  Dr Lau made the point in his evidence that whilst the X-rays showed natural progress of the hip dysplasia, the symptoms were worse.  Dr Wong also testified that one cannot say if symptoms have developed from X-rays and that it was difficult to say when symptoms would emerge as it would depend on a person’s condition and daily activities.  He did note, however, that as subluxation gradually increases, the cartilage gradually wears out and the likelihood of symptoms is increased.  They agreed that the plaintiff’s left hip dysplasia was developmental in origin, and was not caused by the accident which they explained was inadequate acetabulum cover of the femoral head with gradual lateral and superior subluxation and gradual development of osteoarthritis of the hip joint.  They disagreed as to the causation of the labral tear, maintaining their previous views.   They agreed that the majority of the plaintiff’s present left hip symptoms were caused by her left hip dysplasia with lateral and superior subluxation of the femoral head, osteoarthritis at the supero-lateral joint and that the labral tear contributed only a small part to her overall left hip symptoms.  In my view, there still remained a disagreement between them as to what brought on the symptoms soon after the accident.  Dr Lau further explained in his testimony that the rapid progression of degeneration of the plaintiff’s hip injuries could be attributable to the accident which aggravated or worsened her hip dysplasia.   He said that the plaintiff’s condition had worsened over the last few years which indicated a change in the natural progress of it. In cross-examination when pressed on the issue, he explained that he was of the opinion that the injuries from the accident had aggravated the hip dysplasia symptoms.  I accept Dr Lau’s evaluation of the plaintiff’s medical condition.

The plaintiff’s case

27.  The plaintiff is a single female who lives at home with her parents.  At the time of the accident, she was 34 years old and was working as an assistant accountant. She is now 40 years old.  Prior to the accident, even though she had left hip dysplasia, it was asymptomatic, and she was enjoying a range of sporting and recreational activities.

28.  From 1992 to 2000 she attained various certifications for book-keeping and accounting and in 2006 she was awarded a Diploma in Accountancy.  At the time of the accident, she was working for a publicly listed company as an assistant accountant with a monthly salary of $18,000.  She had been with the company for little over a year but had resigned with effect on 29 February 2008 to take up a position as an accountant with a private company. Soon after the accident, she commenced employment with the new company on 18 March 2008 at a monthly salary of $21,000.[26] She eventually ended her employment with this company on 30 April 2010.  She claimed in her witness statement that she had been dismissed by the company because she was constantly on sick leave for medical treatment and she lacked competitiveness.  As I will explain later, it would appear that the cause of her departure was not for the reasons she stated but as a result of the company closing down its accounting division.

29.  Two months later, on 1 July 2010, she commenced employment with a firm of accountants on a monthly salary of $9,000 but left that firm on 31 January 2011.  It was about this time on 17 February 2011 that she graduated with a Bachelor of Accountancy from the University of South Australia, having completed her studies at the end of 2010.  Soon thereafter on 1 April 2011, she commenced employment as a senior accountant with the private company she is now with on a starting monthly salary of $20,000. 

30.  The plaintiff’s case is that even though she had left hip dysplasia, she was asymptomatic and it was the accident that caused her injury which is the basis of her claim for damages, including the loss of career advancement that would have otherwise been available to her if not for the accident.[27]

31.  The plaintiff submits that there are two possible causes to her injury and current symptoms: the accident or the natural progression of her hip dysplasia.  To establish that the cause is the accident, the plaintiff argues that she needs to prove on a balance of probabilities that it triggered or made a material contribution to the onset of her symptoms.  As to the later basis, the plaintiff relies on the principle stated in McGhee v National Coal Board [1973] 1 WLR 1 where the House of Lords held that it was sufficient for a claimant to show that the defendant’s breach of duty made the risk of injury more probable even though it was uncertain whether it was the actual cause.  A majority of their Lordships treated a “material increase in the risk” as equivalent to a material contribution to the damage.[28]

32.  The plaintiff supports her case by relying on the factual evidence and the medical evidence.  It is argued that on the factual evidence, the plaintiff was largely asymptomatic before the accident in that (i) the plaintiff’s hip condition in 2004 did not give rise to any residual symptoms; (ii) the plaintiff prior to the accident was an outgoing person who regularly participated in sports and other physical activities; and (iii) it was immediately after the accident that the plaintiff began suffering from her injury and current symptoms, which limited her occupational and recreational activities.

33.  It is also argued that the plaintiff’s case is supported by the medical evidence, or at least, it is not inconsistent with it, in that (i) the accident caused, or probably caused the acetabular labral tear; (ii) the accident caused or triggered the plaintiff’s current symptoms; (iii) the first time hip pain was medically recorded was in July 2008; and (iv) from the date of the accident in February to July 2008, the plaintiff suffered with symptoms of left sciatica which were located around her left hip.

The defendant’s case

34.  The defendant’s case is that the accident did not cause her injury and current symptoms.  It is submitted they were caused by her left hip dysplasia.  

35.  Mr Daniel Chan for the defendant during the trial took issue with the case presented by the plaintiff.  He submitted that the plaintiff’s case did not plead that the accident caused the symptoms of the left hip dysplasia and that it was limited to whether the left labral tear was caused by the accident.  He also submitted that the plaintiff had not pleaded that the accident triggered or aggravated the plaintiff’s hip injury.  Mr Chan argued that Dr Lau’s evidence did not support the plaintiff’s case as he only focused his opinion on whether the labral tear was caused by the accident.  It appears that in the second supplementary joint medical opinion, Dr Lau and Dr Wong were only focusing on the issue of the labral tear.  But there were also the first and supplementary opinions, and when considered together with the second supplementary opinion,  both doctors were addressing the issue as to whether the plaintiff’s left hip symptoms, including the labral tear, were caused by the accident.  It is clear that in the first joint medical report, Dr Lau stated that the plaintiff’s left hip pain could be related to the accident and he gave reasons why he was of that opinion.[29]  I ruled there was no basis to restrict the plaintiff’s case for want of pleadings. [30]  It was clear in my view that the plaintiff’s case was that the accident caused the onset of the symptoms of her pre-existing condition and the words “triggered” or “aggravated” were merely other forms of expression of “caused”.

Pre-existing condition

36.  The leading authority on the approach to be taken when considering a pre-existing condition when assessing damages is the Court of Appeal decision of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958.[31] In that case, the plaintiff, a carpenter working for the defendant on a construction site, sustained injuries to his back as a result of two accidents.  He had a pre-existing degenerative condition of the spine which had been symptomless before the accident.  The issue for the trial judge was what, if any, reduction should be made to the damages which he would otherwise have awarded in the absence of the pre-existing condition for pain, suffering and loss of amenities and for past and future loss of earnings.  The trial judge identified the following three possible scenarios when considering the effect of a pre-existing condition on the assessment of damages which the Court of Appeal endorsed.[32]

(1) The first is where the plaintiff was almost certain to have gone through life unaffected by the condition and in such a case the defendant would be liable for all damages caused.

(2) The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state, and in such a case it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.

(3) The third is where the present condition would certainly have occurred at some stage in any event, and in such a case clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.

37.  The Court of Appeal went on to explain that when assessing a pre-existing condition in an award of damages, the conventional approach is to make a deduction from the multiplier to take into account the loss associated with the plaintiff’s pre-existing condition.  The Court stated:

“Where a pre-existing condition is likely to lead to disability and loss in the absence of the injury for which the plaintiff is entitled to recover, the usual method of assessing the recoverable loss is to take account of the risks by an appropriate assessment of general damages. The pre-trial loss of earnings may also be reduced if the risks during the years concerned are sufficiently high.

When calculating the damages for future loss of earnings, a reduced multiplier is usually the most accurate way of giving effect to the findings on the medical evidence. This is particularly so when a plaintiff’s working life is likely to be limited by a pre-existing condition as in this case.”[33]

38.  Mr Wong for the plaintiff refers to Ashok GC v Kam Kee Construction Works Ltd, (unreported) CACV No 244 of 2006, 9 February 2007 and argues that when it is unlikely that symptoms of a pre-existing condition would have occurred before the date of trial, or when there is no medical evidence to the contrary, it is appropriate to make no reduction to pre-trial loss and expenses.  This will depend on the circumstances of the case and whether the symptoms of the pre-existing condition had occurred through natural progression or as a result of the accident or both.  

39.  I have adopted the above principles and borne them in mind when assessing the damages in this case.

The plaintiff‘s evidence

40.  The plaintiff testified as to how her hip condition had impacted on her work and career.  She claimed that her lack of tolerance to walk and sit for prolonged periods affected her work and limited the type of work she could do. I do not doubt that the plaintiff experienced some discomfort because of her hip condition, but it appears to me that she has managed to cope with it and has not let it interfere with her work performance.  Tabled before me were several letters from her employers in which she is praised for her work and abilities as an accountant.[34] In fact, in her current position as a senior accountant she was confirmed after a 3 months probation period and had her monthly salary increased to $23,000 which was further increased the following year to $25,000 with complimentary remarks being made about her work performance each time. 

41.  The plaintiff in her witness statement said that at the time of the accident, she was to commence employment as an accountant with a private company on 1 March 2008.  This was the company that the plaintiff claimed had terminated her services because of her absences from work for medical treatment and lack of competitiveness.  When testifying she corrected the commencement date to 18 March 2008 by reference to a letter from the company.  The letter had not been previously disclosed and when produced it revealed that the reason for the plaintiff’s termination of employment was because the company had closed down the accounting division.  The contents of the letter were very complimentary of the plaintiff’s work and abilities, and there was no reference to absences from work.[35]

42.  The letter was dated 30 April 2010 from the Finance and Administrative Manager of the company.  It stated that during the plaintiff’s 2 years of service with the company, from 18 March 2008 to 30 April 2010, she was employed as an accountant and had been fully responsible for the accounting support of the regional head office and offshore offices.  In describing her abilities, it was said that she had “demonstrated herself to be a highly motivated staff, with positive thinking.”  It was also stated that she was in charge of compiling monthly management reports, cash forecast and budgeting reports to head office, as well as handling all company secretarial work.  It was said, amongst other things, that she was a good team player who was very well organized, always planned ahead and finished her duties independently and satisfactorily.  The letter concluded by stating that the plaintiff was leaving the company due to the closure of the accounts division in Hong Kong and highly recommended her to any prospective employer.

43.  Even making allowance for the fact that reference letters tend to be overly positive and complimentary, it provides a very different account of the plaintiff’s work performance and the employer’s regard for her as she had sought to portray.

44.  When the plaintiff took up employment with the firm of accountants on 1 July 2010, she took a drop in pay from $21,000 to $9,000 a month.  She testified that she had other job offers with a monthly salary of $23,000 and $24,000 but declined them because they required her to travel to China which she could not do because of her hip condition and the need to attend for treatment in Hong Kong.  She chose this firm because it offered auditing experience and was small, and thought the clients of the firm would be local but later found out that most of them were in China.  She claimed that she avoided taking up employment or doing work that involved travel because of the discomfort or pain she would feel in her hip joint when walking or seated for prolonged periods.  Whilst I accept that the plaintiff was probably experiencing some degree of discomfort with her condition, she seemed to be able to cope with it and meet the physical demands required to perform her work as an accountant. 

45.  The plaintiff made the point in her evidence that in order to advance as an accountant it was advantageous to have a bachelor degree in accountancy and experience in auditing.  The plaintiff confirmed she did a degree course part-time which she completed in December 2010, and throughout 2010 she worked for the firm of accountants to gain experience in auditing.  In early 2011, having attained her degree and upon leaving the firm of accountants for whom she was then working, she secured her current position as a senior accountant.

46.  It was clear from the general demands of her work as a senior accountant and studying for a bachelor degree that she was required to travel, be mobile and active, and be seated at a desk.  She was highly praised for her work and she completed her bachelor degree by the end of 2010.  I also observed the video recording taken in August 2011 of her travelling on public transport and walking. Whilst she had a slight limp, she was mobile and able to move freely without any signs of significant discomfort.

47.  I accept that the plaintiff was a person who enjoyed occasional sporting and physical activities prior to the accident, but it is clear that with the onset of her hip dysplasia, this has or would have forced her to change her lifestyle and appropriately deal with what the doctors have described as a developmental condition.

48.  I find that the plaintiff was experiencing discomfort with her hip condition that did limit her physically, but she was able to cope with it and it did not interfere to any significant degree with her work.  I am of the view that she tended to exaggerate the impact her condition had on her work.

Findings

49.  My findings briefly stated are as follows:

(i) The plaintiff had a degenerative condition of the left hip (left hip dysplasia) before the accident which produced no symptoms.

(ii) The immediate cause of the plaintiff’s injuries was the accident on 28 February 2008.

(iii) The accident caused injury to the plaintiff which resulted in her suffering with left hip pain and some discomfort when walking or sitting for prolonged periods.

(iv) The accident caused or aggravated a labral tear to the left hip.

(v) The plaintiff required a course of treatment of analgesics and physiotherapy to treat her injuries.

(vi) The injuries did not affect her work performance or promotional prospects.

(vii) The plaintiff would have suffered deterioration in the pre-existing condition of her left hip irrespective of the accident.

(viii) The plaintiff’s pre-existing condition would have naturally progressed to its present state in the not too distant future.

(ix) The future treatment recommended for the plaintiff’s left hip condition was to continue with physiotherapy.

(x) At the time of the assessment of damages, the plaintiff’s condition had improved, and she was feeling better as a result of her treatment.

The plaintiff’s pre-existing condition was asymptomatic

50.  It is clear that the plaintiff was suffering with left hip dysplasia at the time of the accident.  I find that in May 2004 the plaintiff had jumped from a height injuring her right ankle and left hip.  It was serious enough to consult a doctor and be treated for her injuries from May to August 2004 when it appears her hip injury subdued.  An X-ray taken in May 2004 revealed that the plaintiff had mild lateral subluxation of the left femoral head laterally for about 2mm compared with the right side and that there was a suspicious cystic lesion at the supero-lateral edge of the left acetabulum.  I find that the plaintiff suffered a trauma to her left hip in May 2004, and after her treatment in August 2004 her condition was symptomless until after the accident.  The plaintiff continued to enjoy a normal life engaging in sporting and physical activities before the accident.

The accident caused the plaintiff’s injuries

51.  It is not in dispute that on 28 February 2008 as a result of a traffic accident for which the defendant has admitted liability, the plaintiff suffered injuries to her left side after being thrown forward hitting her left knee and arm against the seat in front of her on the bus in which she was travelling.  She initially complained of pain to her left knee and back.  The medical reports stated that the plaintiff sustained a contusion to the left knee without fracture and a mild contusion to the left upper arm.  She complained later of back pain that radiated down her left thigh or leg.  I find that the plaintiff was regularly consulting doctors complaining, in addition to her injuries to her left knee and arm, of back pain that she variously described radiated down to her left upper thigh, thigh or leg.  Medical treatment mainly focused on a suspected injury to the lower lumbar spine but further exploratory examinations did not reveal any abnormality.  Later in July 2008, the plaintiff complained more specifically of left hip pain.  Attention was then focused on the plaintiff’s left hip and an X-ray examination in October revealed that she had left hip mild dysplasia with shallow acetabulum and a subchondral cyst.  She was then treated for her back and hip pain with medication and regular physiotherapy.  She was also advised to use a walking stick to alleviate the stress on her left hip when standing and walking.  It is worth noting that the plaintiff after the accident did complain of pain to her back radiating down to her left thigh and whilst she did not complain of groin pain until later, I am of the view that the symptoms were not being accurately described by the plaintiff or obscured by other and possibly more intense pain she was then experiencing or a reflection of her left hip condition or a reflection of the condition gradually deteriorating as a result of the trauma of the accident. From Dr Kuan’s description of the plaintiff’s pain as recorded in his clinical notes, it is apparent to me that it was highly probable that the plaintiff was identifying pain in her left hip.[36]

52.  I find that the plaintiff’s left hip dysplasia was in a degenerative state and sensitive to trauma, and the accident caused her hip injury and the resultant symptoms.  I also find that the labral tear was caused or aggravated by the accident.   

The treatment of the plaintiff’s injuries

53.  It is apparent from the medical evidence that the symptoms to the plaintiff’s hip developed after the accident.  In my view, that was no coincidence, and as I have already found, it was as a result of the trauma the plaintiff experienced when thrown against the seat in front of her.  I find that she was suffering with hip pain and had difficulty walking and sitting for prolonged periods, but I find she was able to cope with it through the treatment of analgesics and physiotherapy.

The impact of the injuries on the plaintiff’s work

54.  I find that the injuries resulting from the accident did not have any significant impact on the plaintiff’s work. In my view, it did not adversely impact on her work performance or her prospects for promotion.  I address this issue in greater detail when considering the head of damages of loss of earnings.

The natural progression of the pre-existing condition

55.  From my overall assessment of the evidence, including the medical evidence, I find that the plaintiff’s left hip dysplasia was gradually progressing but aggravated by the trauma of the accident.  It appears that the plaintiff’s condition was gradually deteriorating since her first accident in 2004 and a subchondral bone cyst was growing at the supero-lateral edge of the left acetabulum. 

56.  I should point out that in the second supplementary joint medical report the doctors review the X-rays of May 2004, December 2008 and February 2011.[37] They do not mention the presence of a cyst from the X-ray film of December 2008.  I am of the view that it was due to the poor quality of the X-ray film which they said was not optimal for accurate measurement.  It was noted in the joint medical reports, and I accept this to be the case, that Dr Kuan identified the presence of a subchondral cyst from an X-ray taken in October 2008.[38]  Mr Alexsander Wong for the plaintiff argued that the large cyst shown in the February 2011 X-ray film had only developed recently before the X-ray was taken.  I do not accept this proposition.  This is contrary to Dr Kuan’s assessment of the X-ray film in October 2008 and to the MRI scan in October 2009 which revealed a sublabral bone cyst.  

57.  In my view the growth of a cyst is significant as it revealed that the plaintiff’s pre-existing condition was in a degenerative state, given that the first signs of the cyst appeared in all likelihood in May 2004.  It evidences that the plaintiff’s condition was deteriorating through natural progression.  According to the medical evidence, the subchondral cyst was probably due to the excessive pressure of subluxation that was taking place due to the plaintiff’s left hip dysplasia.  It also evidences that the plaintiff’s hip condition would have been sensitive to trauma.  I find that the trauma she experienced during the accident could, and did have, far more serious consequences to her than to someone of normal health.  She was eventually diagnosed as having suffered a labral tear in the region of the cyst and subluxation of the left femoral head.  The two doctors for the parties differed as to the cause of the labral tear.  Dr Wong for the defendant was of the opinion it was part and parcel of the plaintiff’s left hip dysplasia, while Dr Lau for the plaintiff attributed the labral tear to the accident as well as the other hip symptoms. Dr Wong’s main reason for why the labral tear was not caused by the accident was because the plaintiff did not describe or show typical symptoms at the time of, or immediately after, the accident.  According to Dr Wong, this would normally take the form of groin pain.  However, I have found that the plaintiff was identifying pain relating to her hip soon after the accident and it is highly probable that the labral tear was caused by the accident because of the degenerative state of her hip condition.  But this cuts both ways.  It also means that the plaintiff’s pre-existing condition was deteriorating and would have advanced to its present state even in the absence of the accident.    

58.  I have had to determine at what point in time the plaintiff’s left hip dysplasia would have reached its present state if not for the accident.  I have taken into account that the joint view expressed by the doctors that the majority of the plaintiff’s present symptoms were caused by her left hip dysplasia and that the labral tear contributed only a small part to her overall symptoms.[39] Dr Lau when giving evidence emphasised the rapid progression of her left hip condition which he attributed to the injuries sustained as a result of the accident.  He expressed the view that the injuries worsened the left hip dysplasia.  He said that the plaintiff could have been asymptomatic for sometime if it was not for the injuries she sustained.  I accept Dr Lau’s opinion.  Based on the evidence before me, I estimate that the present state of the plaintiff’s left hip condition would have developed in the absence of the accident within 6 to 12 years from the date of the accident. 

The state of the plaintiff ’s injuries and future treatment

59.  I find as a result of the accident the plaintiff injured her left knee and arm.  It appears that she promptly recovered from these injuries with little, if any, residual symptoms.  She also injured her back and although an MRI scan revealed no abnormality, she continued to feel back pain and have tenderness around her lower lumbar spine.  From the date of the accident through 2008 until recently, the plaintiff had consulted doctors and physiotherapy for hip pain and to a lesser extent, back pain.

60.  I find that the plaintiff’s overall left hip condition was slowly deteriorating, although asymptomatic, and in the absence of the accident would have eventually developed to the same state as caused by the accident.  I am satisfied on the balance of probabilities that her hip condition was triggered or aggravated as a result of the accident, but I have to consider this in light of the natural progression this condition was taking or would take in assessing the damages.

61.  I find that the plaintiff responded to treatment for her hip injury which consists of taking of analgesics and physiotherapy and as the plaintiff testified her condition has improved, and she is feeling better as a result.

The heads of claims

 (i) Pain, suffering and loss of amenities

62.  In a twice revised Statement of Damages the plaintiff claims $500,000 for pain, suffering, and loss of amenities (“PSLA”).  At trial, it was conceded by the plaintiff that this sum is on the high side and a more appropriate figure would be $300,000.   The plaintiff has referred to the court two cases in support of her claim. 

63.  The first is Chan Ming Lung v Fastcut Services Ltd (unreported) HCPI 545/2001, 17 September 2007, which the plaintiff argues closely resembles her case.  In that case, the plaintiff suffered from a minimal displaced fracture of the pubic rami and residual right hip pain after treatment.  The medical evidence could not explain the residual symptoms, but the court nevertheless held that the pain was related to the defendant’s negligence because the symptoms appeared immediately after the accident.  It is argued that the circumstances are similar to this case in that the plaintiff’s symptoms appeared after the accident and that she has recovered to the extent of being left with mild hip pain.  The court awarded a sum of $200,000 for PSLA.  It is argued by the plaintiff that taking inflation into account, the award today would be $250,000.

64.  The second case is Lau Tsz Wan v Caltex Oil Hong Kong Ltd (unreported) DCPI 140/2001, 8 December 2004, where the court awarded $250,000 for permanent residual hip disability which the plaintiff argues is much like her case. I do not agree.  In that case, the plaintiff suffered from an injury to the femur for which she was treated with close reduction and hip screw fixation which left her with residual hip pain.

65.  Mr Wong for the plaintiff argues that her loss of amenities was particularly significant as she was an active person before the accident and will not now be able to do the sporting and other recreational activities that she once enjoyed.  This, he argues, should be factored into the PSLA sum.

66.  Mr Wong submits that the plaintiff’s condition comes under the first scenario of Chan Kam Hoi on the basis that she was symptomless before the accident and that a low percentage of patients with hip dysplasia develop symptoms. He submits that it is more probable that the accident had brought on a condition which would otherwise not have developed at all.  I cannot agree.  The doctors agreed that the plaintiff’s condition was in a state of degeneration. Dr Lau’s view was that the plaintiff’s condition could have been asymptomatic for a longer period if it was not for the accident which worsened the hip dysplasia and brought on the symptoms earlier.  It is significant that the radiological examination of the plaintiff’s left hip in May 2004 revealed a cystic lesion at the same position where the large subchondral cyst was found in February 2011.  A subchondral cyst in these circumstances is generally the product of subluxation.

67.  Mr Wong argues, in the alternative, that the case comes under the second scenario in that the progression of the hip dysplasia was slow, and symptoms would only develop in the distant future.  Mr Wong relies on Chan Kam Hong v Mohammad Riaz [2008] 4 HKLRD 649 where the court was uncertain when symptoms would have developed to the same degree as caused by the injury in question and the discount to be given would be less to cater for this uncertainty.  Mr Wong urges that in assessing the percentage of discount, the court should bear in mind that damages to the knee and back injury should not be subject to a discount but as the court cannot separate different injuries then an overall approach should be taken and reflect this by applying a lesser percentage of discount.  A discount of 25 percent is suggested and on that basis the plaintiff urges that an appropriate amount would be $225,000.

68.  Mr Chan for the defendant urges me to award a PSLA in the region of $80,000. He argues, even if the left hip dysplasia or the left labral tear were taken to be caused or aggravated by the accident, a substantial discount or reduction of 80 percent should be applied by reason of the plaintiff’s pre-existing left hip condition.

69.  I am of the view that I can compartmentalize the injuries to a reasonable degree.  The injuries to the knee, arm and back fall into one category, although there is some overlap and possible connection between the back pain and the hip injury.  I find that these injuries were caused by the accident and the plaintiff should receive full compensation.  I consider them to be relatively minor and accordingly I have borne in mind the Guidelines for the Assessment of General Damages in Personal Injury Cases.[40] I would award without discount $125,000 for those injuries.  The other category is the left hip dysplasia and left labral tear for which I would award $200,000 bearing in mind the Guidelines I have mentioned in relation to a slightly moderate injury of this type.  I find that the plaintiff had a pre-existing condition to her left hip that was in a degenerative state and the accident caused or aggravated her condition to worsen.  On this category of injuries, I put her case within the second scenario of Chan Kam Hoi and apply a discount of 50 percent, making an award of $100,000.  I am of the view that in all probability, the plaintiff would have developed the injuries and symptoms with respect to her left hip condition by natural progression and in the not too distant future which I have estimated to be within 6 to 12 years from the date of the accident.  Accordingly, I award a total sum of $225,000 for PSLA.

(ii)  Loss of earnings

(a) Pre-trial loss of earnings

70.  The plaintiff claims a total pre-trial loss of earnings of $160,650. 

71.  Initially, the plaintiff sought loss of earnings for the termination of her employment with the company she joined immediately after the accident, claiming it was due to her loss of competitiveness and absences from work because she was receiving medical treatment.  But as already noted it emerged during the plaintiff’s testimony, her employment with that company came to an end as a result of the accounting division closing down.  On that basis, I disallow the claim. 

72.  The plaintiff also claims the drop in salary to $9,000 a month that she took when she commenced employment with the firm of accountants.  It emerged during the plaintiff’s testimony that she had other job offers with a monthly salary of $23,000 and $24,000 which she rejected.  She claimed it was due to the travel requirements of those jobs.  I am prepared to accept that the plaintiff took up the position with the firm of accountants in the expectation that it would not involve too much travel and as a consequence she took a drop in salary.  I find that whilst her disability did not restrict her from travelling it would have caused her some discomfort and some inconvenience in attending to treatment.  I also find that the plaintiff took up this position because it offered her the opportunity to gain experience in auditing.  I will allow the difference of salary between $23,000 and $9,000 for a period of 7 months (from 1 July 2010 to 31 January 2011).  I calculate the total sum to be $14,000 x 1.05 x 7 = $102,900.

73.  It appears to me that when she attained her bachelor degree in accountancy in early 2011 she left the firm of accountants to a better position.  The plaintiff claimed she left that job because she was required to do auditing work in China.  I reject that explanation.  The decision to leave the firm of accountants and later join the company for whom the plaintiff is now working was in my view a career choice by her that had little if anything to do with her disabilities as a result of her left hip injury, or the other injuries which had appropriately responded to treatment.I accordingly disallow the period of unemployment between jobs and the difference in pay between her starting salary of $20,000 and $23,000. 

 (b) Post-trial loss of earnings

74.  It is conceded by the plaintiff that she is not entitled to claim under this head of damages as her salary has exceeded her expected salary even without the accident.

(iii) Loss of chance of promotion

75.  The plaintiff also concedes that the sum claimed for loss of chance of promotion of $6,145,776 needs downward adjustment.  It was calculated on the basis of full compensation without discount and the maximum suggested attainable salary of $100,000 per month as a partner of an accounting firm or chief financial officer.  The plaintiff claims that she was all along a person determined to develop her skills and career as an accountant.

76.  At trial, the plaintiff changed the basis of her claim under this head of damages by calculating her prospects for promotion to the position of an accounts manager with a monthly salary of $42,000. 

77.  It is argued that the plaintiff is a professional accountant with the ambition to advance her career.  It is claimed that if it was not for the accident, she would have been promoted to the position of an accounts manager. What has given the plaintiff probably her main chance of advancement and promotion is her experience and qualifications together with the appropriate aptitude and application to her work.  The plaintiff acknowledges that as to when the plaintiff will be promoted had the accident not occurred is an uncertain factor.  The plaintiff argues that, in these circumstances, the sum should be discounted by 50 percent to reflect the uncertainty. [41]

78.  It is also submitted with reference to the principles stated by Kwan JA in Lai Jianxing v Sakoma (HK) Ltd [2012] 5 HKLRD 589, [42]

that in considering the loss of promotion, the court should assess whether the evidence disclosed a real and substantial chance of the plaintiff being promoted to an accounts manager and how that chance was reduced taking into account the plaintiff’s disability and the uncertain timing of when that might occur.  Whilst I do find on the evidence that there is a real or substantial chance of the plaintiff being promoted to the position of an accounts manager sometime in the future, I do not find that the prospect of promotion has been reduced by the accident.  It is difficult to discern under what head of damages loss of chance of promotion is being made.  As pointed out of Kwan JA in Lai Jianxing at paragraph 18:

“… Past loss has to be established as a matter of probability, but the calculation of future loss can take possibilities into account (Charlesworth & Percy on Negligence (12th ed., 2010), para. 5-113). This distinction in approach must also apply to loss of earnings on account of loss of promotional prospect. As pre-trail loss is in the nature of an accrued loss, it is incumbent on the claimant to prove on a balance of probabilities both the elements that such promotion would have occurred and the timing of the promotion.”

79.  Kwan JA held that in an assessment of a loss of chance of promotion, the likely timing of the promotion prospect was relevant to both the pre-trial and post-trial losses.  She explained that where the court found a good or real prospect of promotion, the range in the evaluation of the chance might lie somewhere between real or substantial on one hand and near certainty on the other. She noted that not every matter in the assessment of a lost chance was hypothetical, such as a vacancy in the higher position at a given time. In this respect, for pre-trial losses, the court was looking at past events which had occurred within a specific period and this accounted for the difference in approach between pre-trail and post-trial situations. Thus, if during a given period in the past, the claimant did not prove on a balance of probabilities a vacancy in the higher position, he or she could not prove a substantial chance of promotion which had been lost and was compensable.[43]

80.  I have difficulty with the plaintiff’s submissions on this issue.  It is argued that the plaintiff from 1992 up to the date of the accident had been studying and attaining various qualifications to advance her career.  That is true.  The plaintiff had received various accreditations in accountancy and by April 2006 had obtained a Diploma in Accountancy and at the date of the accident she was soon to commence employment with a private company as an accountant on a monthly salary of $21,000.  She worked with the company until April 2010, but her employment contract was not extended according to her due to her numerous absences from work for medical treatment but as already seen the reason why she was not extended was because the accounting division had been closed down.  She secured employment as an accountant at a markedly reduced salary of $9,000 per month having rejected offers of a position with a higher salary.  She did so because she wanted to obtain auditing experience which she thought would improve her future prospects.  Over the next year, she completed her studies for a Bachelor of Accountancy which she thought was essential for promotion.  She left the company she was working for on the basis that she was required to do auditing work which she claimed she could not undertake because she could not meet the travel requirements due to her hip condition.  Soon after in April 2011 she obtained employment with the company she is currently employed by as a senior accountant on a monthly salary of $20,000.  It is hard to reconcile the inability to do auditing work with the ability to study for a tertiary qualification as they both involve much the same physical demands and levels of concentration.  I do not find that the accident has acted as an impediment or restriction to her career as an accountant.  Not long after the accident she had secured a tertiary qualification in accountancy and a very good position with the company for which she is now working.

81.  I am not satisfied that there has been any lost opportunity or setback for the plaintiff to be promoted to the more senior position of accounts manager as a result of the injuries she sustained from the accident.  There is no evidence that the plaintiff was in line for or that she missed out on promotion to a more senior position because of her condition, including the injuries she suffered from the accident.  I find on the balance of probabilities that the plaintiff was coping with her left hip condition as triggered or aggravated by the accident and that it did not interfere with her work performance or career prospects.

(iv) Future medical expenses

82.  Dr Lau is of the opinion that the plaintiff would require continuous physiotherapy for the hip symptoms.  The same opinion was expressed by Dr Arran Leung, the plaintiff’s treating physiotherapist.  It is not disputed that the plaintiff’s symptoms will progress for the rest of her life, and it is reasonable to assume that physiotherapy will be required.  It has been suggested to the plaintiff that she may need surgery but as already noted she prefers a conservative course of treatment.  Mr Wong for the plaintiff argues that where medical expenses are expected to continue for the remainder of the plaintiff’s life, the court may adopt a multiplier approach based on the plaintiff’s life expectancy and the annual medical expenses.[44]  But I am dealing with a case where there is a pre-existing condition which I have found will probably develop to its present state in 6 to 12 years from the date of the accident.  I will allow a period of 6 years.  On that basis, I will apply a multiplier of 5.58 (at an investment return of 2.5 percent).  The fee for physiotherapy treatment is $600 per session.  It appears that the plaintiff has been attending physiotherapy on a weekly basis.  I am prepared to allow for physiotherapy treatment which I calculate as follows: $600 x 52 x 5.58 = $174,096.  

(v) Other special damages

83.  The plaintiff claims the following special damages:

The medical expenses are evidenced by the receipts which I allow.  The tonic food in my view is excessive, and I will allow $15,000.  I allow $2,000 for travelling expenses.

Summary of Award

84.  On the basis of the foregoing, therefore, the breakdown of the damages awarded to the plaintiff in this case is as follows:

Pain, suffering and loss of amenities	$ 225,000
Pre-trial loss of earnings	$102,900
Post-trial loss of earnings	Nil
Loss of chance of promotion	Nil
Future medical expenses	$ 174,096
Other special damages	$ 161,708
Total	$ 663,704

Interest

85.  I make an order nisi that interest be paid on the pre-trial/judgment special damages from the date of the accident to the date of judgment at half the judgment rate from time to time prevailing, and that interest be paid upon the sum assessed for pain, suffering and loss of amenities at 2% from the date of the accident to the date of judgment.

Costs

86.  I make a further order nisi that the costs of this action are to be to the plaintiff, to be taxed if not agreed.

[1] Assessment Bundle at 202.

[2] Ibid at 484 to 487.

[3] Ibid at 495 to 499. Cosmo Physiotherapy Centre 10, 13, 15, 17, 22, 25 and 28 March, 1, 5, 11, 23, 26 and 29 April.

[4] Ibid at 374 and 418(Insurance claim form), 488 to 494 and 463 to 470 (Dr Kuan’s clinical notes).

[5] Ibid at 201.

[6] Ibid at 494.

[7] Ibid at 469.

[8] Ibid at 733 to 754.

[9] Ibid at 476.

[10] Ibid at 476 to 483.

[11] Ibid at 433 to 461 and 206 to 211 Dr Arran Leung’s treatment notes. At 422 Referral Letter dated 21 August 2009.

[12] Ibid at 206 Letter dated 1 August 2011.

[13] Ibid at 419 to 422 Referral Letters.

[14] Ibid at 419 and 420. See also 375 and 376 Insurance claim forms, and the clinical notes.

[15] Ibid at 203 and 204.

[16] Ibid at 432.

[17] Ibid at 375-76.

[18] Ibid at 271.

[19] Dated 20 October 2011, 25 February and 31 August 2012 respectively.

[20] Assessment Bundle at 220 and 221.

[21] Ibid at 375-376.

[22] The Faber test (for flexion, abduction and external rotation) is performed to evaluate pathology of the hip joint. The patient’s tested leg is placed in a figure-4 position which is flexed, abducted, externally rotated and extended. If pain is elicited from the groin or buttock it is suggestive of a hip joint disorder.

[23] Assessment Bundle at 224 and 225.

[24] Ibid at 228.

[25] Ibid, 239-269.

[26] From 1 to 17 March 2008 the plaintiff was between jobs which she had arranged before the accident.

[27]The plaintiff sought the admission into evidence of information in relation to the likely remuneration of an accountant in 2012 according to position and years of experience.  This information had been downloaded from a website that offers recruitment services for accountants.  The plaintiff relies on this information to support her claim for damages for loss of chance of promotion.  Even though it is hearsay evidence, it was admitted into evidence as it satisfied the requirements of section 47(1) of the Evidence Ordinance Cap 8.  The defendant did not raise an objection to the evidence.

[28] The plaintiff also refers to Yu Wai Kan v Lo Cho Tai, (unreported) HCPI No 62 of 2010, 11 May 2011 at para 71.

[29] Assessment Bundle at 224 and 226 to 227 (Joint medical report dated 20 October 2011).

[30] Ruling dated 8 November 2013 dismissing the defendant’s application.

[31] See also Ashok G C v Kam Kee Construction Works Ltd and Anor, CACV 244/2006(CA); Chan Kam Hong v Mohammad [2008] 4 HKLRD 649.

[32] At 963 E-G.

[33] At 965 E-G.

[34] Assessment Bundle at 326 and 327 and Exhibit P1.

[35] Exhibit P1.

[36] Assessment Bundle, 488 to 494 and 463 to 470: low back pain with left sciatica (25 March 2008), low back pain with sciatica to left thigh (11 April 2008), low back pain radiates to left leg (5 April 2008), low back pain radiates down to left leg (12 April 2008), radiates to left thigh (26 April 2008), radiates to left upper thigh (3 May 2008), left thigh pain (14 May 2008), radiates down left thigh (21 May 2008), low back pain radiates down to left leg (11 June 2008), left anterior hip pain (26 July 2008), left anterior hip pain (1 September 2008) fluctuating left hip pain (15 October 2008).

[37] Ibid at 271.

[38] Ibid at 234 and 468. It should be noted that the radiologist reported that the plaintiff’s left hip was normal. The plaintiff was clearly suffering with left hip dysplasia and this report was wrong. See Ibid at 471.

[39] Ibid at 274.

[40]Guidelines for the Assessment of General Damages in Personal Injury Cases, 11^th Edition, Oxford University Press.

[41] Lam Pui Yi, Anita v Secretary for Justice [2011] 1 HKLRD 56.

[42] At paragraph 29.

[43] Kwan JA applied Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602 at 1609-1612 and 1164 per Stuart-Smith LJ.

[44] Ta Xuong v Incorporated Owners of Sun Hing Building [1997] 4 HKC 171 at 183H-I.