WU WAI WAH v. FUNG KWONG HUNG AND ANOTHER

HCPI 256/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 256 OF 2006

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J U D G M E N T

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Introduction

1. On 17 April 2003, when the 41-year-old driving instructor, Mr. Wu, was walking along a pedestrian pavement, he was hit by a detached wheel spun off from a goods vehicle driven by the 1^st Defendant.  He suffered lacerations to his face, the scalp and left hand, and bled heavily.  At the government hospital, his wounds were sutured.  A brain scan showed that there was a thin blood clot in Mr. Wu’s skull (subdural heamatoma).  Despite the disappearance of the haematoma after about 3 months, Mr. Wu says that he suffers from residual symptoms of headache, dizziness, memory impairment and decreased concentration.

2. He sues the driver and the registered owner of the goods vehicle for damages in respect of the injuries he has suffered.

3. Liability is admitted.  Upon obtaining an interlocutory judgment on liability against both Defendants, Mr. Wu now asks me to assess the damages he says he has suffered from this accident.

Contentious Issues

4. There are two main areas of dispute in this hearing.  They are:

(1)	Whether Mr. Wu has exaggerated the seriousness of his residual symptoms.
(2)	Whether Mr. Wu’s injuries have prevented him from returning to work as a driving-instructor.

Injuries and Treatment

A. According to the Medical Reports

5. Mr. Wu’s injuries and treatments are set out in the reports of the Government hospitals, and the two joint reports prepared for the litigation of the neurosurgeon, Dr. Kan Yiu Ting and the psychiatrist, Dr. Ho Pang Nin. All the medical reports are admitted as evidence without oral evidence.

6. Mr. Wu was discharged from hospital after 5 days.  The blood clot in the brain was treated conservatively.  Mr. Wu was diagnosed of post-concussion syndrome (“PC Syndrome”) and followed up by the government neurosurgeon, who later referred Mr. Wu to the government clinical psychologist for assessing his cognitive disorder.  The assessment in February 2005 confirms that Mr. Wu was suffering from symptoms of Post-traumatic Stress Disorder (“ PTS Disorder”).  Consequently, Mr. Wu was referred to see a government psychiatrist. 

7. Dr. Kan interviewed and examined Mr. Wu on 26 January 2005. Dr. Kan found Mr. Wu suffer moderate concussion with the following symptoms arising from PC Syndrome: moderate memory loss, irritability, depression, frequent headache, fatigue, sleep disturbances as well as a loss of libido.  Although Dr. Kan does not think that future treatments would improve Mr. Wu’s condition, he opines that treatments from the neurosurgeon and clinical psychologist would likely prevent further deterioration. 

8. Dr. Ho examined Mr. Wu on 27 April 2006, and was of the view that Mr. Wu has been suffering from symptoms of PC Syndrome as well as PTS Disorder.  Mr. Wu is found to be depressed and suffering from headache, dizziness and lack of physical strength.  For future treatment, Dr. Ho believes that Mr. Wu should receive psychiatric treatment for his PTS Disorder for at least 2 years.

B. According to Mr. Wu

9. Mr. Wu is the only witness in the hearing for assessment of damages.  He said that since the accident, he has been receiving treatments initially only from the government neurosurgeon, and later, upon referral, from the clinical psychologist as well as the psychiatrist provided by the government.  Mr. Wu testified that the symptoms have affected him physically, psychologically and mentally.  The symptoms Mr. Wu described are similar to those stated in the reports of both experts.  Mr. Wu said that as a result of these symptoms, his relationship with his wife and daughter has been adversely affected.  He still has flashbacks of the accident and becomes less willing to go out as a result of his irrational fear of being hit by flying wheels of vehicles. 

Effect on Employment

A. According to the Medical Experts

10. At the time when Dr. Kan and Dr. Ho examined Mr. Wu, he was still employed by the Hong Kong Driving School as a driving instructor.  Dr. Kan took the view that Mr. Wu’s impairment arising from the PC Syndrome was mild, and believed that he should be able to continue to work as a driving instructor.  Should he change job, he would work with diminished efficiency.

11. Dr. Ho considered Mr. Wu totally incapable of working as a driving instructor in view of his impaired concentration.  He believes that Mr. Wu should only do work that does not require him to drive.

B. According to Mr. Wu

12. Mr. Wu only had two jobs in his entire working life.  Mr. Wu left school after finishing Form 5, and started working for the British Army as a Lance Corporal for 17 years until the Corps was disbanded upon the change of sovereignty. According to the Certificate of Service from the Royal Logistics Corps, Mr. Wu, during his services with the Army, had driven vehicles of all classes, and was a qualified military driving instructor for cars and heavy goods vehicles.  At the Army, Mr. Wu’s duties were mainly driving and some related supervisory work.

13. At the time of the accident, Mr. Wu has been working as a driving instructor since 1997.  After 3 months’ sick leave, Mr. Wu returned to work as a driving instructor.  He said his work performance was greatly affected.  As he has become easily irritable, the learners started to complain about him.  He was involved with two accidents when he was giving driving instructions.  The first accident was on 22 October 2004, and the second on 3 February 2005.

14. After the second accident, Mr. Wu’s employer - as from March 2005 – transferred Mr. Wu from his post as a driving instructor to be a petrol refiller.  When the Transport Department on 12 July 2006 cancelled Mr. Wu’s driving licence in respect of all classes of vehicles (including the driving instructor’s licence), Mr. Wu’s employer terminated his employment on 14 July 2006 with immediate effect.

15. Since the termination of his employment and up to the date of trial, Mr. Wu has been out of work.  He said he would like to do some clerical work, but found it difficult, as he was not good with computer.

Discussion

A. Has Mr. Wu exaggerated his symptoms?

16. Mr. Wu is the only witness testifying in this hearing.  I observed that he gave straightforward evidence.  More than four years after the accident, he appeared to be still affected by the effect of the accident it has on him.  He looked forlong.  Mr. Lim, counsel for the Defendants, submitted that Mr. Wu only suffered minor head injury, and therefore the symptoms Mr. Wu had described must have been exaggerated.  I am however unable to detect any exaggeration from Mr. Wu’s evidence.  In my observation, Mr. Wu was completely honest when he described his symptoms. 

17. Although there is no witness testifying on Mr. Wu’s behalf, his evidence cannot be said to be uncorroborated. It is because the symptoms Mr. Wu said he has been inflicted with have been supported by the joint medical expert reports.  Furthermore, Dr. Ho, after having spent 2 and ½ hours with Mr. Wu, made an observation in his report that Mr. Wu has not feigned the symptoms – which observation, in my view, is a compelling corroborative evidence.  The fact that Dr. Ho is one of the joint experts bolsters the reliability of Dr. Ho’s opinion on Mr. Wu.

18. There is nothing in this case that suggests that Mr. Wu has been less than frank with his symptoms.  I accept his evidence and find that Mr. Wu has not exaggerated his symptoms.  I am satisfied that Mr. Wu has been and is still suffering from the residual symptoms he has described.

B. Is Mr. Wu able to resume his job as a driving instructor?

(a) Effect when the issue not raised for the first time

19. The issue of whether Mr. Wu is able to return to his pre-accident job was only raised for the first time during the trial.  In the Defendants’ Answer to the Statement of Damages, they do not contend that Mr. Wu is able to resume working as a driving instructor, and only contend that Mr. Wu is able to take up alternative employment in non-strenuous jobs such as messenger or caretaker.  Hence, their Answer to the claim for loss of future earnings is made on this basis.

20. Mr. Law, counsel for Mr. Wu, objected to the Defendants’  belated attempt to put forth a new case.  He submitted that Mr. Wu would be prejudiced should the late application be acceded to.  He stated that had this issue been raised before the hearing, he would likely have advised Mr. Wu to ask the medical experts for their opinion on this issue.

21. Mr. Wu’s claim for loss of future earnings is premised upon Mr. Wu being unable to continue to work as a driving instructor.  Although Dr. Ho opines that Mr. Wu’s is not suitable to do any driving job, he however has not been asked to comment on whether Mr. Wu could resume his pre-accident occupation with appropriate treatment.  To allow the Defendants to raise this contentious issue now will deprive Mr. Wu of a chance of seeking medical opinion to support his claim.  In view of the prejudice that may be caused to Mr. Wu, I refuse the Defendants to raise this issue now. 

22. In the circumstances, I would not allow the Defendants to rely on this point. The issue that is joined should only be limited to the argument on the kind of alternative employment Mr. Wu is capable of taking up.

(b) Court’s findings

23. Should I be found to be wrong in refusing the Defendants to raise this plea, I shall determine if Mr. Wu is able to return to his pre-accident occupation.

24. Before Mr. Wu lost his job in July 2006, he was already relieved of any driving duties after the government neurosurgeon stated in a report in March 2005 (“the Government Medical Report”) that Mr. Wu was suffering from poor attention span, poor memory and was slow in response.  In it, the neurosurgeon advised Mr. Wu to cease working as a driving instructor.

25. When Mr. Wu’s employer applied for the renewal of Mr. Wu’s driving instructor’slicence in May 2006, it was required to disclose Mr. Wu’s medical condition.  The employer submitted the Government Medical Report to the Transport Department.  As a result, the Transport Department refused to issue a drivinglicence of all classes of vehicles to Mr. Wu.  The loss of a driving licence effectively means that it is not up to Mr. Wu to say whether he wants to continue with this job or not.  The circumstances simply do not permit him to do any driving related work.

26. At the trial, Mr. Lim suggested that Mr. Wu had deliberately asked the Transport Department to cancel his drivinglicence so as to inflate the quantum of his damages.  The suggestion was made because Mr. Wu has written in a signed written from by the Transport Department [205] that he was applying for temporary cancellation of the licence.  In relation to this allegation, Mr. Wu explained that he was asked to fill out the form when he was summoned to attend an interview with an officer of the Transport Department after it has received Mr. Wu’s employer’s renewal application together with the Government Medical Report.  Mr. Wu testified that when he attended the interview, the officer said he was not fit to drive and advised Mr. Wu to ask for cancellation of the licence. 

27. Mr. Wu has always enjoyed driving.  During his entire working life – whether as an army officer or as a driving instructor- his work was always evolved around driving.  Mr. Wu’s favourable appraisal reports by the Hong Kong Driving School on his work performance (in particular the comments made in the appraisal reports for the year 2002/2003 and 2003/2004) confirm this passion.  Further, from his testimony, I find Mr. Wu enjoy his work and that he would have wished to carry on driving despite his symptoms.  It is unlikely that he would voluntarily give up the instructor’s licence or any driving licence. 

28. Regarding the form Mr. Wu had completed at the interview with the Transport Department officer, I note that it is not an application for renewal.  According to the words appearing in the form, it appears to be an assessment form used by the Transport Department for assessing applicants with disabilities.  It is likely that the Transport Department saw the need to assess Mr. Wu when it received the Government Medical Report. Given the medical information the Transport Department had received, it is not improbable that the officer made the remark Mr. Wu has described.  The doctor has advised in the Government Medical Report against Mr. Wu’s suitability to drive. I do not see any thing sinister in Mr. Wu’s decision to voluntarily give up his licence.

29. Mr. Wu’s ability is clearly badly affected by the residual symptoms. He had an accident in October 2004 while giving driving lessons shortly after he returned to work when his sick leave had expired.  Four months later, he met another accident in February 2005. 

30. Mr. Lim suggests that these work-related accidents were minor, and the accident reports in fact confirm that Mr. Wu managed to control the vehicles during the accidents. Mr. Lim therefore contends that these accidents were not caused by Mr. Wu’s residential symptoms (which are exaggerated).  I am not inclined to accept Mr. Lim’s contention that the relative minor nature of the accidents is a reflection of the minor residual symptoms.  One should not overlook the fact that these accidents occurred within a period of 4 months to a highly experienced driving instructor. These successive accidents rather tend to show that Mr. Wu’s concentration has been impaired by his injuries.

31. Regarding the medical evidence, the medical experts, on first blush, appear to hold different opinions.  When Dr. Kan examined Mr. Wu in January 2005, he was of the opinion that Mr. Wu was capable of maintaining his job as a driving instructor.  When Dr. Ho examined Mr. Wu a year later in April 2006, he was of the view that Mr. Wu was totally incapable of returning to his pre-accident job as a result of his impaired concentration.  In between these two examinations is the Government Medical Report.  In it, the neurosurgeon advised Mr. Wu to quit his driving instructor job until further assessment.

32. Upon a more careful reading of these reports, I do not think that the medical experts have different opinions regarding Mr. Wu’s capability to return to his pre-accident job.  Dr. Kan’s favourable assessment of Mr. Wu’s working capability should be read in context.  Dr. Kan assessed Mr. Wu purely from the neurosurgical point of view.  Further, Dr. Ho conducted the assessment one year after Dr. Kan; he therefore had the advantage of taking into account the opinion of Dr. Kan regarding the symptoms of PC Syndrome.  For this same reason, Dr. Ho’s assessment of Mr. Wu’s working ability is more comprehensive, and I would adopt his assessment.

33. The medical opinion is silent on the relationship between Mr. Wu’s future treatment and employment.  Hence, I can only consider this issue on the evidence available.  According to Dr. Kan, the neurosurgical impairment Mr. Wu has suffered is mild but permanent, and it is unlikely to be improved (See para.1 at p.9 of the report).  Thus Mr. Wu would have to probably live with the symptoms in the future, and any future treatments would not improve the symptoms but only prevent further deterioration.  So far as Mr. Wu’s psychiatric impairment is concerned, although Dr. Ho believes that the symptoms of PTS Disorder may be alleviated with treatment, he nonetheless still takes the view that Mr. Wu is not suitable to drive.  On the whole, Dr. Ho opines that Mr. Wu’s prognosis is not good.

34. At the trial, Mr. Wu (whose evidence I accept) has given evidence on the recurring symptoms of dizziness, impaired concentration and headache, and he is still receiving treatments.  After all the evidence is carefully considered, I find it is unlikely that Mr. Wu would be able to drive, which nature of work commands concentration, which he presently lacks.

35. To conclude, I find that it is more likely than not that Mr. Wu is unable to resume any driving-related work in the future even with treatment.

36. With these findings, I next consider Mr. Wu’s claims for various heads of damages.

Heads of Damages

A. Pain, Suffering and Loss of Amenities (“PSLA”)

37. Mr. Law submits that Mr. Wu’s injuries fall within the ‘serious injury’ category, and asks for a sum of $500,000 under this head, relying on three authorities with awards ranging from $450,000 to $500,000 (Sin Kin Man v Hsin Cheong Construction Co. Ltd., HCPI 740 of 2004, Recorder J. Fok, 30 November 2005; Li Tak v Everbest Logistics Co. Ltd. & Ano, HCPI 425 of 2003, Suffiad J., 3 August 2005; Lee Wai Kin v Cheng Hon Kit Jacker HCPI 1488 of 2000, Master K.Y. Chan, 6 July 2002).

38. Mr. Lim contends that Mr. Wu’s impairment is mild, and the injury should be below the ‘serious injury’ category. Hence it is submitted that any award should not exceed $300,000.  The four cases Mr. Lim cited have been awarded damages ranging from $200,000 to $350,000 (Tong Kai Wing v Cheung Wai Lun Alan HCPI 582 of 2005, Burrell J. 24 September 2007;Wong Kin Chung v Fenban Shipping Co, Ltd. HCPI 2284 of 1998, Suffiad J., 20 November 2002; Tse Ngan Hang v Lo Sin Tak, HCPI 565 of 1999, Master C.B. Chan, 10 January 2002 ;Ip Shuk Hing v Yuen Yuk Wai HCPI 216 of 1999, Deputy High Court Judge McMahon, 11 August 2000).

39. It is now settled that a plaintiff’s injuries are considered to be within the category of serious injuries if the injuries leave a disability which mars general activities and enjoyment of life, but allows reasonable mobility to him.  In considering the amount of the award under this head of claim, it is not appropriate to pig-hole the injury into a straitjacket.  Mr. Wu suffers neurological as well as psychiatric disabilities (which I have found him to be suffering) as a result of the accident.  He suffers recurrent attacks of headache, dizziness, loss of memory and poor sleep, which affect him physically, mentally and psychologically.  After having considered the authorities submitted by counsel, and Mr. Wu’s overall impairment, I consider that $500,000 is an appropriate award.

B. Pre-trial Loss of Earnings

From the date of accident until 14/8/ 2006

40. Mr. Wu was granted 3 months’ sick leave on full pay and resumed working as a driving instructor until his employer terminated his employment with one month’s pay in lieu of notice.  It is accepted that during this period, there is no loss of earnings.

From 14 /8/ 2006 to 2/11/ 2007

41. After his dismissal, Mr. Wu has not been able to obtain any suitable alternative employment. Mr. Law submits that the notional wage should be $6,500, which is based on the figures extracted from the Census and Statistics Department for the month of June 2007 in respect of a range of jobs such as waiter, guard, general worker, messenger, cleaner and dishwasher, which average monthly salary is  $6,975.

42. On the other hand, Mr. Lim contends that Mr. Wu should be able to work as a general worker, an office assistant or a messenger, which occupations, according to the figures from Census and Statistics Department, are paid $7,912 per month.

43. Mr. Wu is educated to Form 5.  In view of his years of services for the British Army, his standard of English should be higher than an average Form 5 school leaver.  Whilst he may have very little computer skill, I do not see any reason why he cannot find a job such as a messenger, which does not require the same amount of concentration. A messenger, according to the statistics, is being paid $7,900 per month.  Hence, I shall assess Mr. Wu’s notational earnings at $7,900.

44. Mr. Lim disputes that Mr. Wu’s pre-accident income should be assessed at $11,000, which is Mr. Wu’s average income for the tax year of 2002/2003.  Mr. Lim contends that it should be based on the income for the tax year of 2005/2006, which is $10,975.

45. The fairest way of computing Mr. Wu’s pre-trial income, in my view, is to average out the total income for the years shown from the records of the Employer’s return of remuneration of the Inland Revenue Department produced at the trial.  Based on these records for the period between 2002 and 2006, I calculate the average income at the sum of $11,281 per month.  The amount of $11,000 adopted by Mr. Law is therefore justifiable.

46. The total pre-trial loss is therefore ($11,000 – $7,900) x 14.5 = $44,950.

C. Post-trial Loss of Earnings

47. Having found that Mr. Wu is unable to return to his pre-accident occupation, I should therefore assess this head of loss on this footing.  Mr. Wu will turn 46 in November 2007. Mr. Lim contends that the appropriate retirement age for a driving instructor is 60, and that the multiplier should be 8.

48. Based on the table of multipliers compiled by the Hong Kong Law Journal, Mr. Law submits that a multiplier of 10 is reasonable.

49. Having carefully considered the table of multipliers, and compared the jobs of the different plaintiffs and the corresponding multipliers in the table, I am of the view that a multiplier of 10 is suitable.

50. Mr. Wu’s future loss of earnings is therefore:

$3,100 x 10 x 12 = $372,000.

D. Loss of Provident Fund Contributions

51. Mr. Wu enjoyed the benefit of provident fund scheme provided by his employer.  The amount of contributions made by the employer is the same as those made in the Mandatory Provident Fund.  In Mr. Wu’s case, it was 5%. 

52. Mr. Wu’s loss under this head is therefore:

($44,950 + $372,000) x 5% = $20,848.

E. Loss of Congenial Employment

53. This head of damage is to compensate a plaintiff for losing a job, which he enjoys, and which gives him satisfaction and/or status.  Mr. Law submits that Mr. Wu has years of experience of teaching and driving when working in the Army and later at the driving school.  He submits that as the court had previously awarded $80,000 to a 52 year old lady bus driver in Lee Kit Ha v KMB (HCPI 539 of 2000, Deputy High Court Judge Carlson, 7 October 2002), Mr. Wu should be awarded $120,000.

54. Mr. Lim contends that the award should be similar to the 51 year old lady baker in Wong Shek Mui v Mammoth Holdings Limited (HCPI 1291 of 2003, Master Hui, 16 February 2007)) who was only awarded$65,000.

55. On the facts I have found proved, I am of the view that Mr. Wu’s case is not dissimilar to the lady driver in Lee Kit Ha.  I observe that Mr. Wu has previously derived a lot of satisfaction from his work.  I find that Mr. Wu would be at his happiest should he be able to continue to work as a driving instructor. In view of the relatively long period Mr. Wu has worked as a driving instructor as well as his younger age, I am satisfied that an award of $100,000 is appropriate.

F. Loss of Society/Loss of Service

56. Mr. Wu claims $80,000 for loss of society and $80,000 for the loss of gratuitous services of the dependents.  Mr. Law relies on the case of Cheung Wai Ping v Chan Yuen Yee (HCPI 668 of 2005, Deputy High Court Judge Muttrie, 8 February 2007).

57. Mr. Lim contends that as Mr. Wu’s mental disability is quite mild, an award under this head should not exceed $30,000.

58. The plaintiff in Cheung Wai Ping suffered very severe head damage, and her injuries are far more serious than Mr. Wu’s.  Further, given the fact that Mr. Wu has always been in full-time employment, the time he could have spent with and for his family was relatively little. I am not persuaded that the award should be in the total sum of $160,000 as submitted.  I accept Mr. Lim’s contention that a sum of $30,000 for this item of claim is suitable in the circumstances.

G. Loss of Earning Capacity

59. Under this head, the parties are only divergent on the amount.  Mr. Law asks for an award of 12 months’ equivalent wages of the alternative employment, while Mr. Lim contends for 6 months’.

60. Mr. Wu is not expected to return to his pre-accident occupation as a driving instructor, which work requires high concentration. His future alternative employment does not command the same degree of concentration as the work of a driving instructor.  Hence, this item of claim should be assessed on the basis as to whether Mr. Wu would in the future be disadvantaged in the labour market of the alternative employment. I do not consider the disadvantage will be of any considerable measure.  In the premises, I think Mr. Lim’s contention is more reasonable, and I will therefore adopt Mr. Lim’s calculation. The loss of 6 months’ salary will generate an award of ($7,900 x 6) $47,400.

H. Future Medical Treatment

61. A sum of $59,800 for psychological treatment and occupational therapy is agreed. I therefore make an award for this amount.

62. The claim for 6 years of psychiatric treatment is disputed.  Mr. Lim contends that as Dr. Ho only recommends treatment for 2 years, Mr. Wu has no basis to recover treatment for 6 years.

63. Dr. Ho’s recommendation for the future treatment of 2 years is clearly a very conservative estimate.  Dr. Ho has stated that the estimation he has given is only provisional as the exact duration and frequency of treatment would have to depend on Mr. Wu’s response to the treatments. 

64. Mr. Wu was first diagnosed of suffering form PTS Disorder after he was assessed by the clinical psychologist in 2005.  Thus, he only started receiving psychiatric treatment in the government hospital in 2007.  Had Mr. Wu started treatment sooner, Dr. Ho may be able to estimate the required length of treatment more accurately.  For this reason, I do not think it is fair to just assess future treatment at the minimum period estimated by Dr. Ho.  On the medical evidence, I believe a period of 4 years is not unreasonable.  I therefore allow 4 years at the cost of $2,000 per month.  The total amount is therefore $2,000 x 48 = $96,000.

65. The total sum under this head of damage is $155,800.

I. Future Traveling Expenses

66. Mr. Law submits a sum of $15,000 and Mr. Lim contends for $10,000 on the basis of the difference in their contentions regarding the length of future psychiatric treatment.  Based on my assessment of 4 years for Mr. Wu’s future psychiatric treatment, I assess the reasonable traveling expenses at $12,000.

J. Special Damages

67. A total sum of $11,086 is agreed, and I so award.

Summary of damages

A.	PSLA	$500,000
B.	Pre-trial loss of earnings	$44,950
C.	Post-trial loss of earnings	$372,000
D.	Loss of Provident Fund contributions	$20,848
E.	Loss of congenial employment	$100,000
F.	Loss of society/services	$30,000
G.	Loss of earning capacity	$47,400
H.	Future medical expenses	$155,800
I.	Future traveling expenses	$12,000
J.	Special Damages	$11,086
	Total	$1,294,084

Interest

68. I further award interest on damages for PSLA at 2% from the date of the issuance of the writ until the date of judgment and on pre-trial loss of earnings and all special damages at half of the judgment rate from the date of the accident until the date of judgment.

Costs

69. I make a costs order nisi that the Defendants do pay Mr. Wu’s cost of this assessment to be taxed, if not agreed, with certificate to counsel.