SHE SZE NGA v. YEUNG YING KIT

HCPI 993/2015

[2018] HKCFI 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 993 OF 2015

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.  This is the assessment of damages hearing pursuant to the interlocutory judgment on liability which was entered, by consent, on 9 March 2016 against the defendant in favour of the plaintiff for the accident happened on 10 October 2012 (“Accident”) with damages to be assessed.

2.  The plaintiff was the front seat passenger of the private car owned by her, which was driven by her then same sex boy-friend (they got married in January 2013 in Canada) in the Accident whilst the defendant was the driver of the lorry hitting their car at the back.

3.  The plaintiff was born on 18 April 1978, now aged 39.  She was educated up to Form 5 level and has been a piano teacher from 2003 to 2004 up to the time of the Accident.

INJURIES AND TREATMENTS

4.  The plaintiff lost consciousness for a short while after the Accident and was sent to the Accident and Emergency Department of the Prince Wales Hospital.  Clinical diagnosis was neck sprain injury. X-ray was done and showed no fracture.  She was treated by analgesics, soft neck collar and physiotherapy and was discharged after 2 days.

5.  She started to consult a private general practitioner Dr Pang since 13 October 2012 and received physiotherapy in the private sector for 8 sessions within the period of 5 months. She also consulted an acupuncturist for 2 to 3 years and received treatment about twice a week.

6.  Magnetic Resonance Imaging cervical spine on 16 November 2013 showed minor disc bulges at C4/5, C5/6 and C6/7 levels with no cord or nerve root compression.

7.  After the Accident, she reported to have insomnia, poor sleep with nightmares, persistent low mood, avoidance behaviours and fear of travelling.  She started psychological treatment in December 2012 and occupational therapy from 17 January 2013.  She was referred to and received medications from the psychiatric clinic of Alice Ho Miu Ling Nethersole Hospital (“AHNH”) in May 2013.  She was diagnosed to have post-traumatic stress disorder (PTSD).  Her last session at the psychiatrist clinic was at the end of 2015.

8.  She consulted a clinical psychologist on 4 occasions between August 2013 and February 2014.

JOINT ORTHOPAEDIC REPORT

9.  Dr Kwok Hau Yan (“Dr Kwok”) for the defendant and Dr Peter Tio (“Dr Tio”) for the plaintiff have jointly conducted medical examination on her on 18 March 2015 and compiled a joint medical report dated 17 April 2015.

10.  According to the joint medical report, both experts agreed that the plaintiff has suffered from neck and left trapezius injuries as a result of the Accident.  Clinical examination showed residual neck, left trapezius muscles and left ACJ tenderness with good range of movement.  There was no genuine neurological deficit over her limbs.

11.  In brief, Dr Tio opined that:

i.   The diagnosis were soft tissue sprain injuries to her neck and left trapezius with a whiplash mechanism;

ii.   The prognosis was fair with on and off pain over those regions that was expected for the first few years though the severity should be gradually reduced;

iii.   The plaintiff was fit for resuming her pre-injury duty provided she does not have to keep a stationary position of her neck or left upper limb for over 1 - 2 hours;

iv.   Her daily living activity would not be affected except involving heavy manual exertion;

v.   Sick leave given, namely from 11 Oct 2012 to 27 Oct 2014 intermittently, was regarded as reasonable and appropriate;

vi.   Both of the degree of whole person impairment for her neck, left trapezius and shoulder injuries and the loss of earning capacity are considered to be 3%.

12.  Dr Kwok opined that:

i.   It was a whiplash injury with sprain over neck and left shoulder;

ii.   Although the psychological issue could complicate the plaintiff’s physical symptoms, the subjective symptoms of neck pain and the disturbance of function over left hand should not be to the extent that would significantly affect her physical function.  Physical examination and previous investigation with MRI did not show any significant orthopaedic pathology that would significantly affect her function.  The physical sign at the left shoulder suggests only very mild disease.  Examination of the neck showed no significant limitation or neurological deficit or radicular symptom;

iii.   There could be some residual neck pain and some left upper limb discomfort, but not to a degree to affect her occupation.  She should be able to resume her previous occupation.  Her activities of daily living should not be affected.;

iv.   Both of the permanent impairment to the whole person and the loss of earning capacity should be in the range of 0.5 to 1%.

JOINT PSYCHIATRIC REPORT

13.  Dr Chow Lok Yee (“Dr Chow”) for the plaintiff and Dr Chung See Yuen (“Dr Chung”) for the defendant jointly examined the plaintiff on 19 April 2016 and then on 14 June 2016 prepared the joint psychiatric report.  Both experts agreed that the plaintiff has been suffering from PTSD and adjustment disorder with depressed mood, and the impairment levels caused by the mental problems are mild.

14.  Dr Chung opined that:

i.   She has returned to her pre-accident occupation with minimal impairment due to the psychiatric symptoms;

ii.   She has essentially recovered from PTSD and adjustment disorder.  She is suffering from mild residual psychiatric symptoms lately;

iii.   Sick leave for 3 months from the first psychiatric consultation is appropriate;

iv.   Further psychological or psychiatric treatment is not necessary;

v.   The permanent impairment of the whole person due to PTSD and adjustment disorder is 2%.

15.  Dr Chow opined that:

i.   Most of the psychiatric symptoms have significantly improved after treatment;

ii.   She can return to her previous job as piano teacher.  Her psychiatric condition will not affect her activities of daily living;

iii.   Sick leave for about 3 months from the first session of psychiatric treatment is appropriate;

iv.   Further continuation of present psychiatric treatment for 6 months is considered necessary;

v.   Mild degree of permanent psychiatric impairment for the whole person is about 5% and the loss of earning capacity is about 3%.

DISCUSSION

Assessing the plaintiff’s credibility

16.  The plaintiff attended the hearing and gave oral evidence.  By consent of the parties’ legal representatives, 11 photographs from her facebook relating to her marriage in January 2013 (ie about 3 months after the Accident) are produced as exhibits.  Mr Sakhrani, Counsel for the defendant, submitted that the inherent improbabilities of the plaintiff’s claims suggest her oral evidence could not be safely relied upon.  Before making any findings as to her orthopaedic and psychiatric conditions, I think that it is necessary for me to assess her credibility first.

17.  The plaintiff started to consult Dr Pang since 13 October 2012 ie 3 days after the Accident for 17 occasions up to 19 April 2013.  I note that although Dr Pang is just a general practitioner instead of a specialist in orthopaedic, I can see that the plaintiff must have trusted the treatments prescribed by Dr Pang; otherwise, she would not keep consulting him for 17 occasions during a period of about 6 months after the Accident.  From the medical notes and record of Dr Pang, she was diagnosed neck and left shoulder injuries and was observed in most of the consultations that her neck and shoulder were in full range of motion (ROM) but sometimes pain at the end range and mild spasm in her left shoulder.

18.  According to the report prepared by Ms Siu of occupational therapist of AHNH dated 24 July 2014, initial interview was conducted on 21 December 2012 and the plaintiff complained of bilateral hand numbness apart from left shoulder pain.  However, I note that her complaint of bilateral hand numbness has never been mentioned in the notes and records of Dr Pang.  Although she tried to explain at the hearing that she did complain to Dr Pang, I reject her explanation as it is obvious that Dr Pang would make the records after each consultations and if the plaintiff did make such complaint, it is highly unlikely that Dr Pang would fail to make such record relating to her bilateral hand numbness for all 17 consultations.

19.  In the medical report prepared by Dr Wong of Clinical Psychologist AHNH dated 30 July 2014, the plaintiff complained visual blurring since the accident.  However, such complaint was never made to Dr Pang according to his notes nor appeared in any other medical reports.

20.  The plaintiff agreed under cross examination that in September 2012, about a month before the Accident, she had met another accident when she suffered from a neck injury resulting in hospitalization, wearing a collar and receiving traction treatment in St. Teresa’s Hospital staying there for 2 nights.  She explained that she suffered some stiffness in her neck and only sought treatment at the behest of her family.  I note from the joint medical report dated 17 April 2015 that she claimed to have no history of neck pain or shoulder pain before the Accident.  Even according to the joint psychiatric report, it was stated under the heading of “Previous medical history” that she had not suffered from neck pain.  In my view, she must at least tell the orthopaedic experts about the accident in September 2012 in particular when she did receive some treatments concerning her neck.  No matter how minor is the said accident as claimed by the plaintiff, the experts are entitled to look at all relevant medical notes and records concerning the said accident before giving their opinions to the court for assessing the plaintiff’s injury suffered in respect of the Accident.

21.  She originally claimed $34,377 as repair fee of the vehicle but admitted in the cross-examination that she actually paid $22,438.5 only. No explanation was given as to why her solicitors still claimed the sum of $34,377 for her in the revised statement of damages. 

22.  She complained to the orthopaedic experts of her left forearm pain when washing a bowl, needing more effort when holding a piece of paper and rating 7/10 for her left sided neck pain.  However, both experts agreed that apart from residual neck, left trapezius muscles and left ACJ tenderness, the physical examination was essentially normal with no muscle spasm, no muscle wasting, no soft tissue swelling.  Taking into account of her credibility, I consider that the plaintiff did exaggerate her injuries in respect of her orthopaedic conditions, especially her bilateral hand numbness and her left forearm pain.

23.  Concerning the 11 photographs produced, since they were all taken during the wedding which must be a very happy occasion, everyone would expect the plaintiff to upload the most beautiful photos in her facebook, which would hardly show any pain appearing on her face.  Accordingly, I do not think that they can assist me in assessing her physical and psychiatric conditions at that time.

Findings on the plaintiff’s orthopaedic and psychiatric conditions

24.  I consider that there is not much substantial difference in the opinions given by Dr Tio and Dr Kwok in the joint orthopaedic report.  In case of any difference, in particular the sick leave, I prefer Dr Kwok’s opinion to that of Dr Tio as it appears to me that Dr Tio relied too much on the plaintiff’s subjective symptoms and bearing in mind that I find the plaintiff’s failure to inform the experts of the accident in September 2012 and exaggeration of her orthopaedic conditions.  Based on the evidence before me including all relevant medical notes, joint medical reports and the assessment of the plaintiff’s credibility, I find that she suffered from a whiplash injury with sprain over neck and left shoulder as a result of the Accident.  However, such injuries are very mild.  Although I accept that she still has some mild residual pain over her neck and left shoulder, the severity has been greatly reduced.

25.  As to her psychiatric condition, I accept the opinion given in the joint psychiatric report and find that she suffered from PTSD and adjustment disorder with depressed mood and the impairment levels caused by the mental problems are mild.  The psychiatric symptoms have improved significantly and no longer impact on her daily life and work.

26.  No doubt I accept the opinion of all experts that she could resume her work as piano teacher.

PSLA

27.  In the Revised Statement of Damages, the plaintiff claims a sum of $500,000 under this head.

28.  Ms Cheung for the plaintiff relied on 16 authorities to support this claim.

29.  Mr Sakhrani for the defendant submitted that the reasonable amount shall be in the region of $100,000 and cited 7 authorities.

30.  I have carefully considered all the authorities referred to me and am of the view that the following authorities are directly relevant as the injuries suffered are similar:

i.   Wong Man Lung Joey v Liu Tsz Ming HCPI 135/2012 (date of judgment: 13 August 2012);

ii.   Luk Shu Keung v Kwok Chi Shing HCPI 848/2005 (date of judgment: 28 February 2011);

iii.   Singh Inderjeet v Ho Chun Bong and anor. HCPI 874/2007 (date of judgment: 11 May 2009);

iv.   Chan Chung Sau v Macrae Duncan James HCPI 288/2003 (date of judgment: 20 December 2004);

v.   Lai Kam Wah v Wing & Kwong Co. Ltd. HCPI 1131/2002 (date of judgment: 28 November 2003);

vi.   Chan So Kwan v Mak Siu Kwan Victor, MRL Corporation Ltd. HCPI 1487/2000 (date of judgment: 15 March 2002);

vii.   Choi Sun Hong v China Harbour Enterprise Constructions HCPI 1084/2007 (date of judgment: 20 January 2010);

viii.   Wong Yan Lam v Lam Wing Kei HCPI 438/2009 (date of judgment: 10 June 2011).

31.  The awards in the above authorities were made in the region from $200,000 to $350,000.  Having further considered the inflation for the last few years^[1], I award damages for PSLA in the present case in the sum of $300,000.

SICK LEAVE

32.  The plaintiff was granted sick leave intermittently from 11 October 2012 up to 27 October 2014 for a total of 516 days. Thereafter, she was not granted any further sick leave.

33.  In the joint orthopaedic report, Dr Kwok suggested that the sick leave should be in the range of 6 to 9 months whilst Dr Tio opined that sick leave granted was reasonable.

34.  In the joint psychiatric report, both experts took the view that sick leave of 3 months is appropriate.

35.  It is well established that the court is not bound by the sick leave certificates issued as sick leave certificates would likely be issued on the basis of the patient’s subjective complaints to the doctors^[2]. In the light of my findings on the plaintiff’s orthopaedic and psychiatric conditions, I think that the reasonable period of sick leave should only be 12 months.

PRE-TRIAL LOSS OF EARNINGS

36.  It is claimed by the plaintiff that her pre-accident average monthly earning was $20,503 based on her income in the last 12 months before the date of the Accident.

37.  Mr Sakhrani for the defendant submitted that the plaintiff’s evidence concerning her earning was confused as it was only supported by the table printed out from her computer and contradictory to tax records in the Inland Revenue Department (“IRD”).

38.  According to the records given by the IRD, a company called Star Art Education Co. had paid the plaintiff a sum of ranging from about $30,000 to $37,000 for each financial year starting from 2010/2011 up to 2012/2013.  The records further show that another company called Healthy Homes paid her a sum of about $36,000 for each of the financial year of 2011/2012 and 2012/2013.

39.  The plaintiff explained that she only hired space and equipment from Star Art which received the piano lesson fees from the students and then remitted the balance to the plaintiff after deducting the hiring charges.  On balance of probability, I find that the payment made by Star Art to the plaintiff which was on average about $3,000 per month cannot be regarded as all her income as a private piano teacher. I note that she had input the details, such as the names of the students, dates of lesson, fees etc in the computer records.  Although she seems to admit her failure to disclose all her income to the IRD, I still accept that her pre-accident average monthly earning was $20,503 based on her own records in computer.

40.  As regards the mitigation issue raised by the defence, I am satisfied with the explanation by the plaintiff that she could not resume the work with Health Homes due to her low mood and psychiatric conditions.

41.  Mr Sakhrani for the defendant also submitted that her loss of earnings shall be deducted for 2 to 3 weeks for the time she took off due to her wedding and honeymoon trip in Canada which had been booked beforehand.  I agree that she would not be able to earn during this period in any event.  I consider that half month period is reasonable in the circumstances.  In other words, sick leave of 11.5 months shall be allowed.

42.  The plaintiff had indeed started teaching piano theory in March 2013 and received earnings during the period of 11.5 months ie up to the end of September 2013 in the sum of $29,600 (ie $4,800 + $4,000 + $4,000 + $3,200 + $4,400 + $3,600 + $5,600).

43.  Hence, her pre-trial loss of earnings is awarded for $206,184.5 (ie $20,503 X 11.5 months - $29,600).

POST-TRIAL LOSS OF EARNINGS

44.  I am of the view that the plaintiff is able to resume teaching piano after the sick leave as allowed by me.  No award is made under this head.

LOSS OF EARNING CAPACITY

45.  Ms Cheung for the plaintiff submitted that there is a real risk that the plaintiff would be disadvantaged in the labour market. She claims a global sum of $100,000 about less than 5 months of her average monthly earning under this head.

46.  Mr Sakhrani for the defendant submitted that there is no basis for the claim under this head.  However, I consider that although the plaintiff is able to resume working as a piano teacher, there are medical opinions from the orthopaedics and psychiatric experts to suggest that the plaintiff would have some mild degree of whole person impairment.  In my view, it will slightly affect her earning capacity.  I think that the appropriate award for loss of earning capacity in this case should be $40,000.

OTHER SPECIAL DAMAGES

47.  The plaintiff originally claims $99,740 under this head in her revised statement of damages but Ms Cheung confirmed in her written closing submission that the plaintiff is now claiming $69,288.5.

48.  I allow $32,700 as medical expenses, $22,438.5 as vehicle repair fee, $750 as survey fee and $400 as towing fee since they are supported by receipts.

49.  In view of her mild injuries suffered and no receipt being produced for the remaining items, I allow $3,000 as tonic food including acupuncture treatment and $2,000 as travelling expenses.  Total amount awarded under this head is $61,288.5. 

SUMMARY

50.  In light of the above, I come to the conclusion as follows: -

Item	Description	Amount
(i)	PSLA	300,000
(ii)	Pre-trial loss of earnings	206,184.5
(iii)	Post-trial loss of earnings	nil
(iv)	LOEC	40,000
(v)	Other special damages	61,288.5
	total	607,473

51.  I award interest on damages for PSLA at the rate of 2% per annum from the date of service of the writ to the date of judgment. I also award interest on pre-trial loss of earnings and other special damages at the rate of 4% per annum from the date of the Accident (ie 10 October 2012) to the date of judgment.

52.  I make an order nisi that costs of this assessment of damages be to the plaintiff to be taxed on the District Court scale, which shall become absolute unless any of the parties apply to vary by way of summons within 14 days.

53.  Lastly, it remains for me to thank counsel for the assistance that they have rendered to the court.