TSUI NGA YEE v. CHAN YING YIN

HCPI 1100/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1100 OF 2005

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

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

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

ASSESSMENT OF DAMAGES

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

Introduction

1. By the Writ of Summons filed on 30 November 2005, the Plaintiff claimed against the Defendant for damages for personal injury, loss and damages arising out of the negligent driving of a private vehicle, bearing registration number LE6723 (“the Car”), by the Defendant on 24 January 2004 at Sai Sha Road, Sha Tin, New Territories, Hong Kong (“the Accident”).

2. Interlocutory judgment on liability was obtained on 10 January 2006 with damages to be assessed.

The Plaintiff’s case

3. The Plaintiff was born on 21 October 1974.  She was 29 years old at the time of the accident.  She is now almost 34.

4. On 24 January 2004, the Plaintiff was traveling on a motorcycle, bearing registration number JA5253, as a pillion passenger.  The motorcycle slowed down upon reaching Kwun Hang Village.  The Defendant, who was driving the Car behind the motorcycle, failed to observe the situation,    rammed  into the motorcycle and pushed it forward for about 8 m.  The Plaintiff was thrown out from the motorcycle and sustained severe personal injuries.

5. The Plaintiff was sent to the Prince of Wales Hospital (“PWH”) for treatment.  The Plaintiff was found to be suffering from open dislocation of right knee and there was no circulation of right leg nor sensation/movement of right leg/ankle/foot.  Emergency operation was performed and intra-operative findings included (1) popliteal artery rupture; (2) stretched posterior tibial nerve and peroneal nerve; (3) rupture both heads of gastrocnemius; (4) gross laxity right keen (anterior and posterior cruciate ligament rupture).  Application of external fixation, saphenous vein graft to popliteal artery and fasciotomy was performed.

6. The external fixator was taken off on 10 February 2004 and changed to a long leg hinge brace.  After removal of external fixator, physical assessment shown right knee stiffness and residual weakness of right ankle and big toe dorsiflexion.  Neurologist’s assessment revealed that the Plaintiff was likely suffering from common peroneal nerve palsy.

7. A second surgery was done on 9 March 2004.  Manipulation of right knee to improve range of movement and split skin graft of right popliteal fossa were performed.

8. The Plaintiff was discharged from hospital on 18 March 2004 after staying at the hospital for 55 days.  She then received regular out patient treatment at the orthopaedic outpatient clinic.

9. A magnetic resonance imaging (MPI) scan was done on 4 June 2004.  It shown tearing of meniscus and ligament injury at her right knee.

10. A third surgery was done on 12 July 2004 (around 6 months after the accident).  The surgical findings were (1) rupture of anterior cruciate ligament; (2) rupture of posterior cruciate ligament; (3) tear of medial meniscus.  Arthroscopy and shaving of medial meniscus were performed.  The Plaintiff was hospitalized for 7 days.  Upon discharge on 16 July 2004, the Plaintiff continued to receive physiotherapy treatments from Tseung Kwan O Hospital (“TKOH”).  She also received occupational therapy at United Christian Hospital (“UCH”).  The Plaintiff had to wear a pressure garment trouser to control her lower limbs scars.

11. As to the right leg nerve injury, the Plaintiff was assessed by the Department of Medicine and Therapeutics of PWH.  A nerve conduction test was done on 28 May 2004.  The results shown unelicitable right peroneal motor potential.  The right sural nerve potential was also absent.  A further test in July 2004 obtained the same results.  Electromyelogram of right peroneal shown fibrillation, fasciculation and polyphasia.  The clinical impression was only limited recovery of right peroneal nerve.

12. According to the medical report dated 7 November 2006 prepared by Dr. S.H. Yung, of the Department of Orthopaedics & Traumatology of PWH, the Plaintiff was referred to the sports team for further care of her right knee instability since late 2004.  The Plaintiff received physiotherapy.  There was progressive recovery of her right ankle power and sensation.  However, it became static from mid 2006.  Another MRI scan of right knee on 20 April 2006 confirmed right knee anterior and posterior cruciate ligament tear.

13. On 19 June 2006, the Plaintiff was examined by Dr. Brian Choa (neurology specialist for that Plaintiff) and Dr. Edmund Woo (neurology specialist for the Defendant).  Both doctors were of the view that the neurological damage to the Plaintiff was mainly to the territory of the right common peroneal motor fibres to the tibialis anterior, extensor digintorum brevis and other dorsiflexor muscles were more severely affected and have recovered less well than the branches to the peroneal muscles that evert the foot.  The absent right ankle jerk and the patchy sensory loss over the back of the right leg point to some damage to the fibres of the right posterior tibial nerve.  The absence of weakness of tibial innervated muscles and the absence of sensory loss on the sole of the foot and toe suggested that the degree of damage to the posterior tibial nerve is slight.  They did not expect further spontaneous improvement in the Plaintiff’s nerve function.  The experts opined that tendon transfer operation be considered to give better support to the Plaintiff’s ankle.  They also formed the view that the Plaintiff was fit to work in an office environment not requiring too much commuting since about mid 2005.

14. The Plaintiff received her 4^th operation on 17 August 2006 for anterior cruciate ligament reconstruction to tackle the persistent instability and pain at her right knee.  The operation was smooth and uneventful.  The Plaintiff continued to receive physiotherapy thereafter with gradual recovery and increasing stability of right knee.

15. On 1 November 2007, the Plaintiff was examined by Dr. Poon Kai Ming (Orthopaedics specialist for the Plaintiff) and Dr. Brian Chan (Orthopaedics specialist for the Defendant).  The Plaintiff complained of:

(i)    Right knee joint laxity: the feeling was experienced during all motions and activities including walking on level ground but she was still stable in walking.  The feeling had improved 20% when comparing with the situation before the ligament reconstruction in August 2006.

(ii)   Right knee pain: the pain was over the medial side of the joint provoked by walking more than an hour and her walking endurance was about 2 hours.  There was no pain at rest.

(iii)  Right knee soreness over the front of the knee when walking on stairs.

(iv)  Right knee stiffness after sitting for more than 30 to 45 minutes.

(v)   Right foot drop condition with tendency to trip over when she walked.  She had to be very cautious and lift her right foot clear of the floor when she walked.  The Plaintiff managed to avoid falls and did not require ankle foot orthosis support any further.

(vi)  Decreased sensation over the back and lateral side of the right leg but it did not give her discomfort.

(vii) There was feeling of right calf swollen up after walking for an hour.

(viii) Pain on pressing the left ankle medial side scar (vein graft donor site).

(ix)  Lumbar back pain.  The pain was more on the right side of her back and became worse when she walked.

(x)   Left heel pain after walking for an hour.

16. The Plaintiff did not wear pressure garment any more.  She took medication about 2 to 3 times in a week for her residual pain.  She had to take a walking stick when she went out and use a soft brace for her right knee for better stability.

17. The doctor found that the Plaintiff walked with right drop foot mild limping gait.  She was not able to walk on heels and not able to squat down.  There were multiple scars over both limbs including a 15 cm oblique scar over the back of the right lower thigh; a patch of skin graft donor site rectangular scar measuring 10 x 5 cm; and a 9 cm long scar over the medial site of the left ankle where the vein graft was harvested (photographs depicting the scars can be found at pp 455 to 461 of the hearing bundle).

18. The doctors also noted that the right lower limb muscle bulk was smaller than that of the left (the lower limb girths, at 10 cm above patella: 41 cm right; 43.5 cm left).

19. The right knee ligament status were as follow:

   Anterior cruciate ligament (1+ laxity)

   Posterior cruciate ligament (3+++ laxity)

   Medial collateral ligament (no laxity)

   Lateral collateral ligament (2++ laxity)

   There was also posterior sagging of right upper tibia.

20. There were also limitation in the range of motion of the right limb joints: knee (0° to 120° for right limb; 0° to 145° for the left limb); ankle dorsiflexion (0° for right and 15° for left); and ankle plantar flexion (30° for right and 40° for left).

21. There were reduced muscle power at the limb joint (MRC grading):

   hip flexion (4+ right, 5 left);

   hip extension (4+ right, 5 left);

   knee flexion (4- right, 5 left);

   knee extension (4- right, 5 left);

   ankle dorsiflexion (1 right; 5 left);

   ankle plantar flexion (5- right, 5 left);

   big toe flexion (4 right, 5 left); and

   big toe extension (4- right, 5 left)

22. The doctor opined that the Plaintiff should receive a reconstruction surgery of tendons transfer.  After that, her right ankle dorsiflexion would be improved from grade 1 power to grade 3+ power but the plantar flexion power would be decreased mildly.  The Plaintiff was also medically indicated for the posterior cruciate ligament reconstruction surgery.  Nevertheless, in the light of the structural damaged suffered, the Plaintiff faced a genuine possibility of premature osteoarthritis of her right knee occurring much earlier than in natural course without the Accident.

23. It was expected to have residual symptoms of pain and stiffness in motion at the right knee.  Even if the further surgical reconstructions were successful, the residual drop foot condition would still render walking even on level ground an exhausting task for the Plaintiff.

24. The Plaintiff was granted sick leave since after the Accident (except for 2 weeks in September 2004 when she tried to resume her work but in vain).  She is still on sick leave until 17 October 2008.  The Plaintiff is still receiving treatments at TKOH and UCH.

25. The Plaintiff gave evidence in Court.  She adopted the contents of her witness statements as her evidence in chief.  She told the court that she had tried to return to her pre-injury work as an administrative supervisor of an international paramedical company, Healthcare M & P Services Operations (HK) Ltd (“Healthcare”), for 2 weeks in September 2004.  However, she could not cope with that mainly because she (i) could not take bus or MTR to work, visit clients and supervisors; and (2) could not squat down to retrieve files. She found it painful at her knee when climbing up onto the bus. She was unable to stand on a public transport in motion because of the instability of and the pain at her right knee

26. The Plaintiff would receive posterior cruciate ligament surgery in December 2008.  Upon recovery, she would receive the tendons transfer surgery.

27. The Plaintiff is still under the employment of Healthcare and is receiving salary for Sundays and public holidays.  She also received year end bonus.  The Plaintiff enjoyed hiking, bowling, traveling, shopping, touring around using her motorcycle and playing badminton etc before the Accident. It is now very inconvenient to her to resume such activities.

The Defendant’s case

28. The Defendant did not call any witness.  Nevertheless, one surveillance tape was produced as exhibit.  I am of the view that the footage shown nothing significant.

Pain, Suffering and Loss of Amenities

29. Mr. Wong, Counsel for the Plaintiff, submitted that the Plaintiff’s conditions fell within the “substantial injury” to “gross disability” category.  The Plaintiff claimed a sum of $850,000 under this head.  Mr. Wong submitted that the Court should not make an award of lesser than $650,000 in the circumstances of this case.

30. Mr. Wong relied on the following authorities:

(i)    Lee Ting Lam v Leung Kam Ming, [1980] HKLR 657;

(ii)   Yu Kok Wing v Lee Tim Loi trading as Tim Wan Painting and Decoration Works, [2001] HKLRD 306;

(iii)  Lai Chi Ming v Ng Pak Chuen and another (HCPI 1085/1999, Master de Souza, 25 September 2000);

(iv)  Phoon Ka Wai v Wong Ka Chung and another (HCPI 768/2003, Master de Souza, 15 September 2005);

(v)   Wong Tsan Ming v Tse Chi Man and another (HCPI 73/2007, Master Levy, 25 August 2008).

31. Mr. Gidwani, Counsel for the Defendant, submitted that a reasonable award under this head was $500,000.

32. While disablement may be divided into four categories of ascending order according to its severity: serious injury, substantial injury, gross disability and disaster, there is no rigid distinction.  As noted by Cons JA, “… that cannot be, for severity of injury presents a sliding scale.  Furthermore, there may in a particular case be factors not in themselves disability, which are sufficient to take that case from one category into another”.  (Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 at page 659)

33. I have considered the authorities referred to by Counsel.  These cases do provide useful guidance of how damages should be assessed.  In the light of the injuries and disabilities suffered by the Plaintiff and in particular that the Plaintiff had received 4 operations and will receive 2 further surgeries in the coming future, I am of the view that an award of $600,000 is reasonable and fair under this head.

Pre-trial Loss of Earnings

34. It is not disputed that the Plaintiff earned an average of $14,915 per month before the Accident.  She received full payment of salary till November 2004.  She further received salary for Sundays and public holidays thereafter together with year end bonuses.  In total, she had received $126,996.64 from her employer between November 2004 and July 2008.  The Plaintiff claimed full loss of earnings under this head.

35. The Defendant, relying on the comments of the doctors, submitted that the Plaintiff should be able to return to work, to say the least, as from August 2006.

36. If one simply ignores the problems encountered by the Plaintiff during commuting and just focuses on whether the Plaintiff could perform her pre-accident duties, it may be said that the Plaintiff is “able to return to her pre-accident job with some decrease in efficiency”.  This clearly is not the correct test.

37. In my judgment, the correct approach is to see whether the Plaintiff has failed to act reasonably in not returning to her pre-accident job.  The burden of proving that the Plaintiff has acted unreasonably lies on the Defendant.

38. Up till now, the Plaintiff is still receiving medical treatments.  More important is that she is still facing two more surgeries in the coming future.  The Plaintiff has simply not recovered from her injuries.  In the light of all the circumstances of this case, I am not of the view that the Plaintiff acted unreasonably.  The Plaintiff is entitled to full loss of earnings.

39. I make an award of $587,423.36 under this head.  

Loss of earnings $14,915 x 48 months	$715,920
(November 2004 to October 2008)
Earnings received from employer	($126,996.64)
(November 2004 to July 2008)
Earnings received from employer	($1,500)
(August to October 2008)	_________
	$587,423.36

40. Pre-trial loss of MPF is $587,423.36 x 5% = $29,371.

Loss of Future Earnings

41. Mr. Wong submitted that it was not realistic to suggest that the Plaintiff can resume her pre-accident job which required frequent traveling by public transport.  He submitted that the Plaintiff can only take up a part-time job which did not require any traveling earning around $4,000 per month. The Plaintiff asked for a multiplier of 14 which, apparently, is not disputed by the Defendant.

42. Mr. Gidwani submitted that the Plaintiff would be sufficiently compensated if the Court awarded damages representing extra transportation cost for taking a taxi to and from the Plaintiff’s working places.

43. As stated above, the Plaintiff will undergo another operation in December 2008 and will have the tendon transfer surgery after recovery from the former operation.  The orthopaedics experts opined that the two surgeries, if taken together, would take 1 to 2 weeks of hospitalization and another 12 to 15 months for post-surgery rehabilitation and training.

44. As there is no evidence from the Plaintiff to suggest otherwise, I can only take that the total time for hospitalization and rehabilitation would be the same even though the surgeries are not taken together.  In other words, the Plaintiff should reach maximum recovery by end of 2009.

45. By then, I see no reason why the Plaintiff should not be able to return to her pre-accident job if she travels by taxi.

46. The Plaintiff is now residing at Tseung Kwan O and her office is at Kowloon Bay.  She used to travel 8 to 10 times per month to visit the clinics, clients and her supervisor.  The clinics and clients were at different locations.  For those on Hong Kong side, the farthest one was at Central; for that on Kowloon side, the farthest one was at Kwai Chung; Tai Po was the farthest one for those at New Territories.  She had to travel to Yaumatei to meet her supervisor.

47. Taking 22 working days and 8 visits per months means 60 taxi trips (44 trips for to and from home and office and 16 trips for to and from office and clinics etc).  I am of the view that the Plaintiff needs $5,000 per month as taxi fare.

48. I will adopt the multiplier of 13 for the award of taxi fare as it does not count immediately after this assessment but around a year later.

49. I make an award of $208,810 under this head.  

Full loss of earnings	$208,810
(November 2008 to December 2009) $14,915 x 14 months
Taxi fare
(from 2010 onwards) $5,000 x 12 x 13	$780,000

50. Loss of MPF is $208,810 x 5% = $10,440 (Taxi fare is extra future transportation cost and is not loss of future earnings. It is set out here for the sake of clarity).

Loss of Increment

51. The Plaintiff submitted that in 2001, the Plaintiff’s basic salary was increased from $13,000 to $13,650.  Based on this, the Plaintiff argued that it was reasonable to expect that but for the Accident, the Plaintiff would have been entitled to an increment in income of $300 per month totaling $64,800.

52. Apart from the so called reasonable expectation, there is no evidence whatsoever to support this item.

53. The Plaintiff has simply failed to make out a claim and I make no award under this head.

Loss of Earning Capacity

54. There is no dispute for this item.  I award $48,000 as agreed by the parties.

Medical Expenses

55. The Defendant agreed the claim of $42,297 for medical expenses already incurred.

56. The Plaintiff claimed $5,000 as the medical expenses for the surgery to be done in December 2008.  She further claimed $50,000 as the cost for the tendon transfer operation together with post-operative rehabilitation in private sector.  The Defendant only accepted a sum of $20,000.

57. Although the Plaintiff has all along been receiving treatments in public sector, I can see no reason why she should be denied the choice of receiving treatment in private sector.  I award $55,000 as future medical treatment and related expenses.

Part Time Helper

58. The Orthopaedics experts agreed that some chores like mopping the floor, climbing on chair or table to reach high selves or windows would be physically demanding to the Plaintiff.  Based on this, the Plaintiff claimed damages for hiring a part time helper in the sum of $648,000 ($3,000 x 12 x 18).

59. While I accept that there is no evidence that the Plaintiff is responsible for the heavy chores, I am of the view that since after her marriage in February 2007, the Plaintiff has her own family to take care of.

60. Bearing in mind that the Plaintiff’s husband should also be responsible for the chores and that the Plaintiff is only unable to do heavy household works, engaging a part time helper for 3 hours per week would be sufficient.  I adopt an hourly rate of $50.  The total award under this head is $50 x 3 x 52 x 14 = $109,200.

Travelling Expenses

61. The Defendant agreed $46,163.40 for the pre-trial period and $20,000 for post-trial.

62. Adding the extra transportation cost (taxi fare) as mentioned above, the total award is $66,163.40 + $780,000 = $846,163.40

Tonic Food & Equipment Expenses

63. The Plaintiff claimed $45,000 but the Defendant only agreed $19,554.50 as supported by receipts.

64. I award $25,000 under this head.

Acupuncture Treatment

65. The Plaintiff claimed $400 per week for 5 years.  The total is $104,000.

66. There is no evidence as to why the Plaintiff requires acupuncture treatment.  Further, it is not claimed in the Statement of Damages.  For these reasons, I make no award under this head.

Summary of Quantum

67. In summary, the award is as follow:

(i)	PSLA	$600,000
(ii)	Pre-trial loss of earnings	$587,423.36
	- MPF (5% x $587,423.36)	$29,371
(iii)	Future loss of earnings	$208,810
	-MPF (5% x $208,810)	$10,440
(iv)	Medical expenses incurred	$42,297
	- future medical expenses	$55,000
(v)	Part time helper	$109,200
(vi)	Travelling expenses (agreed)	$66,136.40
	- taxi fare	$780,000
(vii)	Tonic food & equipment expenses	$25,000
	Less Interim payment	($300,000)
		$2,213,677.76

Interest

68. Interest at half judgment rate will be awarded on special damages and pre-trial loss of earnings from the date of the accident to the date of judgment and thereafter at judgment rate until payment.  Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

69. I make an order nisi (to become absolute 14 days after the handing down of this judgment) that the Defendant do pay the Plaintiff the costs of this assessment to be taxed if not agreed.  Certificate to Counsel.