WONG YAN LAM v. LAM WING KEI

HCPI 438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 438 OF 2009

_________________________

BETWEEN

_________________________

AND

HCPI 439/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 439 OF 2009

_________________________

BETWEEN

_________________________

___________________________

___________________________

ASSESSMENT OF DAMAGES

___________________________

1.  The plaintiff in these proceedings had the misfortune to be the victim of not one, but two road traffic accidents, in relatively quick succession.  The first was on 19 November 2006 when she was a passenger in a bus which had to brake suddenly to avoid a collision with a private car driven by the defendant in the first action, HCPI 438 of 2009, as a result of which she was thrown to the floor of the bus and sustained injuries.

2.  On 15 January 2007, the plaintiff was again a passenger in a bus, which also had to brake suddenly to avoid a collision with a vehicle owned by the first defendant and driven by the second defendant in the second action, HCPI 439 of 2009.  Again she was thrown to the floor and sustained further injuries.

3.  Judgment was entered against the defendants in both actions by consent on 11 November 2009 and 11 March 2010 respectively, and by order of Master Ng on the latter date, the actions were consolidated for the purpose of this hearing.

INJURIES AND TREATMENT

4.  The plaintiff is now 28 years old, having been 23 at the time of the first accident.  After the first accident, the plaintiff says that she lost consciousness for a while and suffered dizziness when she came round and had severe pain over her head, neck, lower back and pelvis.  She was sent by ambulance to the Caritas Medical Centre where she was diagnosed with “back muscle injury” and discharged 4 or 5 hours later with three days sick leave. She returned to the medical centre three days later complaining of severe pain in her head and all over her body.  She was treated and given further sick leave to 24 November 2006.  She tried to return to work but says that she could not because of headache, pain over pelvis and back, right shoulder and weak right arm.

5.  On 24 November she attended the Pok Oi Hospital clinic where she was diagnosed with neck pain, right shoulder pain and low back pain.  The medical report from this clinic found that she had tenderness over the right side of the neck and low back areas but the range of movement of the back was good, straight leg raising was 90 degrees, and there was no neurological deficit of the upper and lower limbs.  She was treated with analgesics and referred to the orthopaedic and physiotherapy departments and the mental health centre of Tuen Mun Hospital.  I have no information as to whether she took up these referrals and there are no reports of such visits.  She was meanwhile also receiving acupuncture treatment three times a week.  In December and January she also attended Yuen Long Jockey Club Health Centre with similar complaints with the addition of muscle spasm of the right trapezium and right sternomastoid.

6.  In the second accident, the plaintiff says she was thrown to the ground and felt severe pain on her left eye, her sacral region and the back of her head, and sprain injury to her neck and right shoulder.  She was treated at Queen Elizabeth Hospital, given pain killers and referred to the Orthopaedic and Traumatology Department Specialist Out-patient Clinic.  Again I have no information as to whether this was followed up.  However, she did attend the Yuen Long clinic four times and sought treatment from a private orthopaedic surgeon, Dr Ko Wing Man, in early February 2007.  He found that there was limited movement in the neck, and shoulders and tenderness in the back muscles. However, x-ray examinations found no bony injury, and later MRI examinations of the cervical and lumbar spine, and the brain, showed nothing abnormal.

7.  Meanwhile the plaintiff started to suffer from psychological problems including fear of travelling, insomnia, emotional disturbance and flash back of the accidents.  She was diagnosed as suffering from post traumatic stress disorder and referred to the clinical psychologist of Castle Peak Hospital, who prescribed anti-depressants.  Throughout the next two years or so she continued having numerous visits to clinics and hospitals, including being admitted for investigation three times, but always discharged with medication, further visits to Dr Ko, physiotherapy sessions, neurology consultation, herbal medicine treatment and naturopathic treatment.

8.  Her present complaints are severe headaches, especially after midnight with resultant loss of sleep, dizziness, pain on extension of neck, and in the right shoulder and low back pain.  She says she also suffers from weakness of the right upper limb and pain on lifting things, inability to write properly and to write for more than about 10 minutes at a time.  She also says she vomits froth every two or three days, has blurred vision, is afraid of bright light, requiring constant wearing of sun glasses, and is anxious when travelling on buses.  She also has nightmares.  Having been an active and lively young woman taking part in outdoor activities, she says that she can no longer enjoy her hobbies and sporting activities such as badminton nor continue the voluntary work she enjoyed.  She also maintains she suffers from poor memory and impaired concentration.

9.  For the purpose of these proceedings joint medical and psychiatric reports were prepared.  The medical report by Dr David H F Cheng and Dr Johnson C J Lam is dated 9 October 2008 and followed a consultation with the plaintiff on 25 July 2008.  After reciting the history of the accidents, and referring to the various medical reports from the doctors and clinics the plaintiff had attended, the report records the complaints she related to the doctors.  These are briefly: weakness of the right upper limb, pain on lifting, paraesthesia and weakness of the ulnar thenar finger, right shoulder pain, constant headache and inability to sleep, pain on extension of neck, falling frequently, protuberance over the right chest with difficulty in breathing, and constant back pain, requiring analgesics.  No complaint was apparently made at this time of the difficulty in writing for more than a few minutes.  The physical examination found that she could walk, stand and sit normally, support herself on one leg and on her toes, and squat and rise normally.  They found no deformity in the neck but recorded tenderness over the posterior aspect and slight stiffness but with no muscle spasm.  Likewise, they found no deformity of the back, although some tenderness but with good range of motion, and no deformity, tenderness or muscle wasting of the back.

10.  The doctors agree that in the first accident the plaintiff sustained multiple contusions to her neck, right shoulder and low back, but the medical reports indicate that she was probably making good progress by the time of the second accident, when she suffered a sprained neck and experienced right shoulder pain.  They agree that her complaints of neck and shoulder pain are justified to a certain extent, but cannot explain the complaint of difficulty breathing as the chest appears normal.  They considered she had reached a stabilized state with good prognosis as the injuries were simple soft tissue contusions of the neck and right shoulder, and, as she is a young woman in her twenties, with time and exercise there is likely to be improvement.  They consider therefore that the effects are moderate and that any residual pain and stiffness in the neck and shoulder should be more of a discomfort or nuisance. They consider that she should be able to resume her pre-accident work as a clerk, a job of mild physical demand, and finish her pursuit of a degree in the distance learning course she was undertaking at the time of the accidents. They also agree that the sick leave granted by the treating doctors is acceptable.

11.  The psychiatric report was prepared by Dr Chung See Yuen and Dr Peter Ho Pang Nin on 6 February 2009.  After recording similar complaints to those related to the doctors on 25 July 2008, but including having to rest after writing for 5 minutes, and anxiety when travelling on a bus by herself , they also recorded that she told them her mood and her physical symptoms have improved.  Dr Chung considered that the plaintiff’s complaints were compatible with adjustment disorder, with mixed anxiety and depressed mood, but that there had been improvement after psychiatric and psychological treatment.  He believed that the mental disorder is largely in remission and she is suffering from residual symptoms only, but that she would benefit from continued psychological treatment for another year.  Dr Ho largely agrees with Dr Chung as to the symptoms experienced by the plaintiff, but considered that the anxiety about buses and cars was not intense as she could regularly travel on them.  He considers that the prognosis is favourable and her condition has already improved, and would benefit from another year’s psychological treatment.  He considers that her social functioning is not impaired nor that the depression is significant, and that she is capable of returning to her previous job.  They assess her permanent impairment from her psychiatric disability at either 1% (Dr Ho) or 2% (Dr Chung).

12.  It is apparent that neither of these reports supports the degree of disability that the plaintiff complains of and gave evidence of.  In further support of this contention, the defendants’ solicitors arranged for video surveillance of the plaintiff to be carried out on 25, 28, 30 and 31 July 2008, and 24 and 26 November and 1 December 2008.  The first of these, on 25 July 2008, was the day the plaintiff visited the doctors for the purpose of the first report, and shows her leaving the building in Central with her mother who left her shortly thereafter.  The plaintiff then descended the stairs to Central MTR station and travelled to Tsim Sha Tsui where she walked to a building in Prat Avenue, which she left about 90 minutes later, apparently having had a massage for her back, and then walked to Carnarvon Road where she waited until joined by her boyfriend, who is now I understand her husband. During the whole time after leaving her mother she was frequently seen using her mobile phone in her right hand.  The plaintiff and her boyfriend then spent the rest of the evening walking around the area, having a meal in a restaurant and shopping, until some time about 9.47 pm when she boarded a bus to Yuen Long.  Throughout the video there is no sign of the plaintiff suffering any discomfort, except briefly on leaving the doctor’s clinic, which she explains by saying she was uncomfortable after sitting so long.  In particular she is seen twisting her head regularly while waiting for her boyfriend, climbing and descending stairs, holding things in her right hand, including swinging a shopping bag over her right shoulder.  She often held hands with her boyfriend and he put his arm round her waist or on her shoulders.  She says in evidence that this was to massage her neck and back, and to hold her to prevent her falling. This is not the impression one gets from watching the video and I do not accept it.  Indeed, I consider that where the evidence of the plaintiff conflicts with the views of the doctors and the evidence of the video, there is more than a minor element of exaggeration on the part of the plaintiff.  This agrees with the view of Dr Ho the psychiatrist who was of the view that the possibility of exaggeration has to be considered.

13.  The other occasions she was filmed show similar activity, and in one where she is walking with her young nephew and her dog, she picks up the dog in her right arm, without apparently any difficulty.  The overall impression is of an active and happy young woman out enjoying herself.  The plaintiff seeks to explain this by saying that she only went out when she was feeling well and other times stayed at home.  While there may be an element of truth in this, what is seen in the films is entirely consistent with the findings of the doctors that her residual physical disability is only moderate, as a nuisance or discomfort only, and the mental disability relatively minor.

PAIN SUFFERING AND LOSS OF AMENITIES

14.  The plaintiff says that she still suffers headaches and has Chinese medicine to treat them, and still experiences insomnia, pain in the neck and back and weakness of the right arm and hand.  She says that she had to discontinue her studying for a BBA degree with the University of Canberra as the inability to write for more than a few minutes prevented her from taking the last examination she needed to complete it.  I will look at this again below when considering loss of earnings.  However, this inability was not reported to the doctors who compiled the first report, only to the psychiatrists.  The plaintiff says that this was because one of the doctors was hostile and she was not given an opportunity to relate all her symptoms.  I find this difficult to believe bearing in mind that this would appear to be a serious disability affecting her livelihood and that all her other complaints were related and recorded.  Taking into account all the other evidence of her condition, including the video surveillance films, I am not therefore convinced that this is as serious as she claims.

15.  Neither do I consider the level of anxiety as high as the plaintiff claims in view of the psychiatrists’ report and the film of her readily boarding and travelling on buses, although she claimed that she had to clench her fist when she did so to calm herself.

16.  Having said that, she clearly suffered two frightening accidents and multiple painful contusions, sprains, and psychological effects with some residual pain and anxiety, albeit of a very moderate degree.  She has had an uncomfortable time with many visits to doctors and clinics; she has suffered real pain, at least for the first few months, and had post traumatic stress disorder.  Both counsel have referred me to a number of authorities with some similarity to the situation here.  However, I find these of limited value, except as to the range of awards, as no two cases are identical and in the end one has to take an overall view of the case under consideration.  In the light of the injuries received and the ongoing physical and mental symptoms, I find that a proper figure under this head of damages is $200,000.00.

PRE-TRIAL LOSS OF EARNINGS

17.  Since leaving school the plaintiff had a number of jobs, including working for a time in her father’s business.  At the time of the first accident she was working for Gigamind International Education Development Co. Ltd., a primary school, with a monthly income of $8,500.00 plus meals, which she estimates at $30.00 a day, giving $9,160.00 a month.  She was granted sick leave from the date of the first accident intermittently until 3 September 2007, which, for the purposes of this assessment I shall assume was continuous.  She claims that she was unable to work after that, or obtain employment she was able to do, until she was given a job with her father in law’s company, an engineering firm, in March 2009.

18.  I have to accept that, in view of the frequent visits to doctors and clinics, and the complaints, albeit improving, that she was still suffering from, for at least part of the intervening time it would have been difficult for her to obtain, and continue at, full time employment.  However, by the time of the first medical examination on 25 July 2008, it is clearly the opinion of the doctors that she was fit enough to return to work similar to that she had been doing prior to the accident.  I therefore find that a reasonable period of total loss of earnings is from 19 November 2006 to 25 July 2008.

19.  The plaintiff is now employed by her father in law and earning $8,500.00 a month, giving a continuing loss of $660.00 a month, being the value of the meals she was receiving at her pre-accident employment.  I therefore find that pre-trial loss of earnings is:

20 months at $9160	$185,032.00
MPF ($8,500 x 20.20 x 5%)	$8,585.00
34.20 months at $660.00	$22,572.00
	__________ $216,189.00

FUTURE LOSS OF EARNINGS

20.  20. As I have already noted above, prior to the accidents the plaintiff had been studying with a view to obtaining a degree in Business Administration from the University of Canberra. In 2004, while also working part-time at various jobs, she had studied for, and obtained, a Diploma of Business from the Royal Brisbane International College, which appears to be connected to the University of Canberra and leads to credits being granted when a student moves on to the BBA degree. This appears to be a course designed for Hong Kong with part distance learning, together with evening classes at their premises in Hong Kong, as the academic report for the former college includes an attendance record. The plaintiff’s 2004 record also shows her passing with four High Distinctions, four Distinctions, and a Credit in gaining her diploma.

21.  She then converted to the Bachelor of Business Administration (Hong Kong) course with the University of Canberra where, with her credits being given for her diploma, she required 70 credit points from this course to gain her degree.  The academic history of the university for the plaintiff shows that she joined the course in the last semester of 2004 and passed three subjects, giving her 10 credit points.  During the 2005 academic year she passed a further eight subjects, giving her, together with credits, another 54 points, making her total 64 points, needing only another six to obtain her degree.  During this year she also either failed, or did not sit, examinations for three subjects.  For reasons which were not clearly explained, except that some subjects were not available every term, she only took and passed one subject in the second semester of the whole academic year of 2006, leaving just three points required for her degree.  She intended to take the last subject in the first semester of 2007, but by this time the accidents had occurred and she did not sit it.  She has not attempted another examination since.

22.  It is the plaintiff’s case that, had it not been for the accidents, she would have obtained her degree and would probably be working as a financial analyst earning at least $20,000.00 a month plus annual bonus.  This figure is obtained from Mr. Tse Hung Pan who gave evidence that he is a friend of the plaintiff and that they had been on the same courses at the Royal Brisbane International College and the University of Canberra.  While his results were not quite as impressive as the plaintiff’s at the college, he passed all his examinations with the University of Canberra by the end of the 2005 academic year to give him sufficient points, and his degree.  He said that he is now working as a sales and marketing supervisor earning $24,000.00 a month plus annual bonus in a company engaged in software design and development.

23.  The plaintiff is clearly a very bright and intelligent young woman, and able to benefit from further education, but, to accept the submission made on her behalf as to her prospects were it not for the accidents, I would have to make a number of assumptions.  The first of these is that she would have completed the course and obtained her degree.  At the beginning of the 2006 academic year she was in a position to take her last two subjects and gain the last six points she needed, and yet in the whole of that year she only took one, whereas she had sat for ten the previous year.  The explanation that the subjects were not available every term I can accept, and it is supported by Mr. Tse, but in the absence of any other evidence that they were not available for the whole academic year, I cannot accept that she could not have taken them well before the accidents happened.  This suggests that she may well have begun to lose interest in the course, or that her interests were leading her in another direction.

24.  The second assumption is that she would have obtained employment in this field of business administration or as she claims, financial analyst, following the degree.  This is a quantum leap.  No academic degree confers an automatic right to high paid employment; it still depends on a person’s ability to secure such employment, which in turn depends on not only their own employability, but economic circumstances and the availability of it.  All such a degree does is to increase one’s chances of such employment, and make more attractive jobs available.  There is never a guarantee.

25.  But the plaintiff’s main problem is this; by the time of the medical reports in 2008 and 2009 she was clearly in a position to resume her studies to the extent that she would by now have qualified in her degree.  The first doctors said specifically that “there is no reason why she is unable to finish her pursuit of a degree”.  Similarly the psychiatrists did not consider that she had any significant ongoing mental problems.  She still claims that her inability to write for any length of time means that she cannot take examinations.  I regret that I do not accept this.  It is, as I have noted above, not mentioned by the doctors who recorded all her other complaints, and is mentioned for the first time in the psychiatric report.  There is also no evidence that it in any way interferes with her present employment as a clerk. Her use of her right hand in the video shows no limitation of use at all, indeed, it is obviously the hand she uses for such things as her mobile phone. I am not therefore satisfied that she could not have completed this degree either before the accidents happened, or after 2008 when the doctors are agreed that she is largely recovered with only minor ongoing complaints.

26.  It follows that I consider that there is now no loss of earnings as a result of this, and I hope that, now these proceedings are over, she will resume the studies that she is clearly capable of.  The only loss on the evidence is the $660 per month loss allowed in the pre-trial loss of earnings, which is continuing.  I consider an appropriate multiplier to be 16 in view of her age and according allow the sum of $126,720.00 being $660.00 x12 x 16 years.

LOSS OF EARNING CAPACITY

27.  Mr. Tsang for the plaintiff urges me to find that, as a result of her injuries, she would be at a disadvantage in the labour market in the future, should she lose her present employment, and submits that an award equivalent to two years salary would be appropriate.  While there is, I agree, some ongoing disability, the medical reports make it clear that these are at worst moderate, more of a discomfort or a nuisance.  They are not such as to seriously affect her ability to secure employment.  Having said that, it is not totally insignificant, and some award should be made.  I consider the equivalent of 6 months’ salary to be proper in these circumstances, namely $51,000.00.

COST OF FUTURE PSYCHIATRIC TREATMENT

28.  The plaintiff claims the cost of future psychiatric treatment as suggested by the psychiatric report for one year.  I am a little puzzled by this claim as the suggestion was made by the doctors in their report of 6 February 2009.  No doubt this was shown to the plaintiff and discussed with her by her legal advisers, but there is no evidence that she has ever sought such treatment. I do not believe it is lack of funds, as she has undertaken a great deal of other treatment and incurred considerable expenses, no doubt financed by her very supportive, and clearly not poor, family.  She appears to consider that such further treatment is not necessary.

29.  However, there was a very real mental disturbance as a result of the accidents, and it is possible that some minor symptoms may reoccur.  I will therefore make an award under this head against the possibility that further treatment is required, in the sum suggested by the psychiatrists of $15,000.00.

SPECIAL DAMAGES

30.  Special damages fall into three categories: medical expenses, travelling expenses and nourishing food.  I will look at each in turn.

Medical expenses

31.  These in turn fall into two parts: public hospital fees totalling $3,100.00 for which receipts have been produced, and which I will allow in full, and private doctors’ consultation charges which need to be looked at in slightly more detail.  These are listed in the 2^nd Supplemental Witness statement of the plaintiff and come to $114,163.00 and number 190 items.  The first 119 items are largely unremarkable, consisting as they do of physiotherapy, rehabilitation and private doctors, including Chinese medicine practitioners.  As time has passed, it seems that the plaintiff has relied more on Chinese and traditional medicine than western, as she is quite entitled to do.  One might question the frequency of the visits for treatment, particularly after the middle of 2008 when she was considered no longer seriously affected by her injuries, but Ms Lau, for the defendants, has not made any great point of this, and on balance neither will I.

32.  From October 2008, the plaintiff started visiting the Asia Naturopathic Medical Centre, which she claims made her feel better, and such visits I will allow.  However, so impressed was she by this treatment, that she decided to do a course there herself, claiming that it would assist her recovery by helping her to understand her whole body.  This, in my view, is taking what is allowable a step too far, and further from actual treatment.  I will therefore not allow those items of school fees for her course at that college, which are items 122, 127, 133, 137, 147, 148, 153, and 155, amounting to $6,119.00.  This leaves the sum of $108,044.00 which I will allow under this head.

Travelling expenses

33.  The travelling expenses claimed are listed in the plaintiff’s supplemental witness statement and consist of 193 items amounting to $25,720.00 all to medical and other appointments.  They are all in round figures and, apart from two of $10, are in sums of $20, $40, $50, $70, $100 and $200, of which latter figure there are 102.  No receipts have been produced for any of them.  I initially naturally assumed that these were taxi fares, however, in evidence the plaintiff said that she was driven to these appointments first by her father and later by her husband, her former boyfriend who appeared with her in the video.  She claimed the expenses claimed represent the cost of fuel and parking, but admitted that they were all estimates.  What the plaintiff has done therefore is to produce a lot of figures by guesswork without any concrete evidence to support them, apparently by taking the list of medical and other appointments in the previous section under this head, and estimate a sum for travelling to each.

34.  This is of course extremely unsatisfactory, even if she had travelled by private car to every appointment, which I do not accept, having evidence from the video alone that she was quite capable of travelling on buses a few months after the last accident.  Given that she was also, in the opinion of the doctors, recovering and would therefore not be so susceptible to the anxieties she claimed she suffered earlier, there is little reason for such assistance for the later appointments.

35.  Having said that, I have allowed a large number of medical appointments to which she would have to travel, and she is entitled to some recompense for the expense of doing so, even if much of it was by bus.  I therefore assess a proper sum under this head to be $3,000.00.

Nourishing food

36.  As I have said, the plaintiff places a great deal of reliance on traditional Chinese medicine and treatment, and has also clearly relied on the benefits of nourishing food, from the date of the first accident.  I have no criticism of this, and I consider it proper to allow a reasonable sum for expenses so incurred.  These again are listed as comprising 36 items totalling $29,824.30.  Having been through the receipts produced, I find the majority unremarkable and allowable, but there are some items which deserve closer scrutiny.  The first of these is a receipt from a company called “Slim Beauty” dated 23 July 2007 for $11,250.00 for a “plan” from which the plaintiff can choose lymph drainage massage, colon hydrotherapy, foot spa, massage stomach with wax, and RU slim equipment.  Although the plaintiff claimed she only had the massage, this is almost certainly a receipt from a beauty parlour and I do not accept that it had anything to do with treatment for her injuries. Similarly a receipt from Four Leafs Health Care Spa Centre for $5,000.00 for “40 items self chosen” was not adequately explained by the plaintiff as pertaining to any treatment, and I am not satisfied that she is entitled to claim it.

37.  Three last items which cause me concern are receipts from Man Hong Pharmacy in Tai Po dated 23 December 2009, 11 January 2010 and 28 January 2010 for $650, $680, and $650 respectively.  The plaintiff lives in Yuen Long and would have to travel a long way to get to Tai Po to buy what is described in the receipts as just “medicine”.  In cross-examination she said she could not remember why she was there on those three days, nor what the medicine was.  Yet when asked by her counsel about another receipt which said “skin care and health food” claimed to remember clearly that it referred to only health food. She seemed here, as elsewhere in her evidence, to have a selective memory and I do not again find her evidence convincing.  As these receipts have no indication as to the name of the customer or the type of medicine, I do not intend to allow them.  From the $29,824.30 claimed, I therefore propose to deduct $18,230.00 leaving a sum of $11,594.30.

38.  The total of special damages awarded therefore is the sum of $122,638.30.

SUMMARY OF DAMAGES AWARDED

INTEREST

40.  There will be interest on PSLA at 2% from the date of the writ and on pre-trial loss and special damages at half the judgment rate from the date of the first accident, both to the date hereof.

COSTS

41.  There will be an order nisi that the defendants pay the plaintiff’s costs to be taxed.  The plaintiff’s own costs are to be taxed under Legal Aid Regulations.