WONG KWOK MING v. CHEUNG KI CHEUNG

HCPI 1163/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1163 OF 2000

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Assessment of Damages

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Introduction

1. On 21 February 1999, the plaintiff met with an accident on the New Territories bound section of Tuen Mun Road when the private car he was driving was rammed from behind by a taxi, negligently driven by the defendant. The plaintiff lost control of his vehicle and crashed. He sustained personal injuries and his vehicle was written off. The defendant was subsequently charged and convicted of careless driving and driving a motor vehicle with blood alcohol concentration exceeding the legal limit. The defendant having failed to serve a defence, interlocutory judgment was entered on 6 November 2000 against him for damages to be assessed and costs of the action.

2. Three principal areas of dispute can readily be identified. These are the appropriateness of and the level of awards for pain, suffering, and loss of amenities, loss of earning capacity and loss of or reduced promotional prospect.

Pain, suffering and loss of amenities

3. At the time of the accident, the plaintiff, a serving ICAC officer, was 39 years of age, having been born on 8 July 1959. On examination at Tuen Mun Hospital, he was found to have yellowish bruising and diffused anterior chest wall tenderness, decreased range of left knee movement, tenderness over the patella of the left side, and bruising and tenderness over the anterior and lateral aspect of left knee. X-ray revealed no chest or left knee or leg fracture. He was treated and discharged on the day of the accident. On 23 February 1999, he was admitted to the orthopaedic ward of the same hospital because of persistent swelling over the injured knee. He was prescribed analgesics and discharged home on 1 March 1999 and followed up in the out-patient clinic. The physiotherapy report dated 6 December 1999 provides a useful summary of his out-patient therapy. The plaintiff commenced physiotherapy on 15 April 1999 but defaulted after 3 May 1999. He re-registered for treatment on 5 August 1999. As at the date of the physiotherapy report, he attended 18 sessions and treatment was said to be on-going.

4. Magnetic Resonance Imaging examination was conducted on 12 June 1999 on account of his complaint of persistent left knee pain. It was at that time that a partial tear of the anterior cruciate ligament (ACL) of the left knee was diagnosed. A short course of physiotherapy was prescribed and his pain was managed by analgesics. ACL is a ligament binding the femur and tibia and can restrict excessive anterior translation motion between the two bones. It is one of the most important ligaments controlling stability. According to his orthopaedic expert, PW2 Dr. Danny Tsoi (Dr. Tsoi), a patient with ACL insufficiency exhibits an unstable knee. He will experience a sense of instability when performing activities such as running, jumping and climbing. An unstable knee will be more susceptible to further injury as well as having an increased vulnerability of the menisci to tear.

5. Dr. Tsoi, a specialist with considerable expertise in sports medicine, having treated many sportsmen with knee injuries such as First Division footballers, confirmed that the plaintiff has suffered a partial tear of the ACL. Dr. Tsoi did not recommend surgical intervention even though theoretically ACL deficiency could be corrected by surgical reconstruction. The procedure was said to be complicated, requiring a lengthy period of rehabilitation. In view of the plaintiff's age (he was aged 40 when his expert examined him) and the fact that he was not engaged in heavy manual work, surgery was considered inappropriate. DW1 Dr Lam Kwong-chin, the defence expert (Dr. Lam) concurred.

6. Dr. Tsoi opined that with moderate ACL deficiency, the plaintiff would have no difficulty coping with daily activities and light sports such as jogging, swimming and table tennis. To prevent further injury to the unstable knee, vigorous activities like sprinting, soccer, basketball and jumping should be avoided. These invariably involve abrupt stopping and changes in direction of movement, which will render him unstable. Dr. Tsoi reported that the moderate degree of ACL laxity translated to 17% impairment of the lower limb or 7% impairment of the whole person. Loss of earning capacity, which only reflected his physical capability, was estimated at 14%.

7. Dr. Lam returned lower figures. He considered that the ACL laxity was mild, being of the order of 7% impairment of the lower extremity. In terms of whole person impairment, 3% was suggested. Both medical experts agreed that their diagnosis had been based on subjective clinical assessment without the benefit of any equipment, which they did not possess.

8. The plaintiff has spoken of his apprehension of participating in and satisfactorily completing the Annual Fitness Test (AFT), a general requirement for all serving ICAC officers save those who are medically exempted. The evidence disclosed that he passed the 1998 AFT with only 4 seconds to spare. That was the last test he underwent. With his present complaints, he said he would not to be able to meet this requirement. This he said would have serious ramification on his promotion prospect.

9. In this respect, the medical experts had this to say. Dr. Tsoi observed that his pre-accident performance in the 1998 AFT suggested that the plaintiff 'might have some problems completing the test' in the future. Under cross-examination, he added that the plaintiff should be able to take part in the AFT as he did not have a problem in running. It was merely a question of speed. He was unaware that the plaintiff was diabetic, nor did he weigh the plaintiff who was clearly over weight as far as he and Dr Lam could tell. Diabetes ought to have no bearing on the plaintiff's ability in meeting the AFT requirement, but excessive weight clearly would impact upon his ability to complete the annual race even without the accident. In sum, Dr. Tsoi was of the view that it was the state of general health rather than the injuries that would prevent him finishing the AFT in time. He commented that while the plaintiff might have some problem chasing down suspects, walking normally was well within his capability. Walking at a regular pace should not give rise to any symptoms at all. Both medical experts discerned no muscle wasting in the affected lower limb. The evidence therefore suggested that the plaintiff despite his injured limb was able to manage normal daily activities.

10. Dr. Lam testified that there was no swelling or increase in warmth in the left knee. A patient with genuine lower limb problem and pain for two years would exhibit a detectable, objective difference in muscle girth measurements of the lower limbs. In the plaintiff's case, there was no muscle wasting at all. Dr. Lam found it odd that the plaintiff should experience pain or tenderness at the medial joint line, over mid-substance of the medial collateral ligament. This contrasted sharply with the finding of Dr. Chan of Tuen Mun Hospital who noticed bruising at the anterior (front) and lateral (outer aspect) of the left knee. Dr. Lam expressed surprise that subjective pain had changed direction. He concluded that there was no clinical basis for pain at the medial joint line.

11. As for the partial tear to the ACL, since there was no associated haemarthrosis (blood in joint) following the initial injury, he concluded that no significant ligament or ACL injury had been sustained by the plaintiff. He doubted whether the ACL injury had been caused by the accident. In my judgment, the MRI scan and Dr. Tsoi's findings put this beyond doubt. I find that the plaintiff did suffer the ACL injury complained of as a result of the accident. The controversy revolved round the issue of its consequences upon him.

12. Dr. Lam observed a reduced range of knee motion during his examination. This was absent in Dr. Tsoi's and the Tuen Mun Hospital findings. As he did not expect ACL damage to result in limitation of movement in the knee beyond an expected degree of laxity, the limitation noticed was not genuine in his view. Having reviewed all the medical evidence, I share this reservation as well. I find there was a degree of exaggeration in the plaintiff's evidence concerning the effect of his injury. Some aspects of his complaints such as neck pain attributable to the accident, persistent dry cough, 'feeling like a cripple when walking fast', and compensatory shifting of body weight to the right leg to relieve pain, were plainly not corroborated by the body of orthopaedic evidence.

13. Turning to the plaintiff's neck complaint, it seems abundantly patent from the evidence of both experts that there was unlikely to be any causal nexus with the accident. The plaintiff has admittedly had a pre-existing history of neck pain for some 2 years prior to the injury for which regular treatment had been received. Dr. Tsoi reported that the condition became asymptomatic for more than one year before the accident. The plaintiff insisted that the accident had exacerbated his neck problem. The physiotherapy report of 6 December 1999 diagnosed cervical radiopathy for the first time on 12 October 1999, some 8 months after the accident. Dr. Tsoi observed that a possibility existed that sudden whiplash occurring during the accident might precipitate the condition complained of, but he would have expected the onset of symptoms within days of admission in February 1999. As happened, the diagnosis was made many months later and no complaint had been made in the period immediately following the accident. In his judgment, the longer the gap of diagnosis, the less likely the neck condition sprang from the accident. He further opined that the condition was probably caused by pre-existing degenerative condition. Radiological examination revealed multiple levels of degeneration of the cervical spine, a result of natural degeneration and over stress.

14. Surprise was expressed over the degree of degenerative changes given his relative young age. In short, it was rather premature according to Dr. Lam.

15. Dr Lam was equally unable to link the neck condition to the accident. He stated that the deteriorated cervical spondylosis was a separate pre-existing complaint not in any way precipitated or worsened by the accident. This I wholly accept. Having come to a similar view, the neck pain will be discounted from the present exercise.

16. As respect the chest injury, examination conducted by Dr. Tsoi did not reveal any musculo-skeletal residue over the chest wall. The persistent cough, he said, might or might not be related to the accident. Dr. Tsoi expressed surprise at the complaint of persistent dry cough for there was no musculo-skeletal residue discernible. The plaintiff had sustained no more than a simple contusion to his chest in the accident. Dr. Lam found no chest abnormality. During examination, Dr. Lam noted that the plaintiff would only cough when he was paying attention to it, but would not otherwise when his attention was diverted, e.g. while he was talking or during examination. This was in his view indicative of exaggeration and the absence of a genuine chest problem. In any event, it seemed that coughing has stopped by now and has had minimal, if any, effect on his daily activities. His chest injury being relatively mild cannot feature largely in this assessment in my judgment.

17. Permanent impairment of the whole person therefore ranged between 3% and 7%. I prefer the evidence of Dr. Tsoi in this connection, accepting that it was necessarily grounded on subjective clinical assessment. There was no doubt that Dr. Tsoi was a most fair and independent expert with a wealth of experience in sports related injuries.

18. Counsel for the litigants have very helpfully drawn my attention to a number of decisions on knee related injuries. These I have read. There does not appear to be any reported awards on partial tear of the ACL. I do not propose to recite the list here as no two cases are exactly alike.

19. It was the plaintiff's contention that a minimum award of $460,000 should be made as his injuries were at least comparable to if not worse than that of the victim in Liu Hung Fai v Sandvik HongKong Ltd, PI 934 of 1995. In that decision, the court was concerned with a 69 year old female victim of a traffic mishap. She suffered temporary loss of consciousness, underwent operations on her left knee and had to convalesce for 5 months in an infirmary. A lengthy course physiotherapy treatment ensued. At the trial, she still suffered knee pain, walked with a limp and required the aid of a walking stick when away from home. There was an accompanying inability to squat down or climb height. Muscle wasting in the injured limb was evident. Her injuries prevented her from pursuing her pre-accident paid vocation as teacher of Tai Chi sword and handicraft. Her impairment falling within the lowest end of the serious injury category, $400,000 was awarded for PSLA (or about $480,000 at today's value). Even on a most generous view, the plaintiff's injuries can in no way be regarded as approaching Madam Liu's physical disabilities. To all intents and purposes, the plaintiff's daily life has largely been uninterrupted or at least not significantly impaired.

20. In Chan Yeuk Yiu v Chan Ho Kwan, HCPI No. 879 of 2000, the plaintiff sustained head, right wrist and right knee injuries with fracture to his distal radius of the right wrist and laceration to his antero-lateral knee joint of the right leg. He was hospitalized for about 10 days and underwent debridement, irrigation and sutures to his knee and close reduction and short arm plaster for his right wrist. His head and wrist injury had fully recovered, leaving a reduced mobility in the right knee. PSLA attracted an award of $145,000, Master M. Yuen being of the view that the injuries fell below the category of serious injury.

21. I find that the plaintiff's injuries fell some way below the serious injury category. An appropriate award in the circumstances would be $260,000. This is the sum I award him under this head of damage.

Reduced earning capacity

22. The plaintiff has been a contract officer with the ICAC since March 1993. Previously, he had worked for the then Royal Hong Kong Jockey Club and in the process had acquired considerable experience in computer programming. By the time he resigned from the club of his own volition, he had been promoted four times and was a programmer leading trainees. From July 1992 to January 1993, he was engaged in the private sector as a senior computer programmer. This technical expertise has been put to good use in his current posting at the ICAC and should stand him in good stead in the future should he re-enter the labour market for whatever reasons.

23. When he first joined the ICAC as an Assistant Investigation Officer, he was offered two tours of 2 1/2 years each. The post involved among other tasks, the apprehension of suspects. If needed, he was expected to chase and use reasonable force to effect arrest, a duty he would now have some difficulty in discharging owning to the knee disability.

24. The plaintiff has served in various teams with different charters and has benefited from in-house training from time to time. In September 1995, his contract was renewed. On 11 August 1998 he applied for the vacancy of Investigator (Information Technology) in the Operations Department and was confirmed to act in the post on 3rd November 1998. Substantive promotion to the post occurred on 19 April 1999. His duties were and still are principally performed indoors. On the same day, he received approval to act in the rank of Commission Against Corruption Officer (Middle/Lower) in the Operations Department, again with a view to substantive promotion. He was made substantive on 19 October 1999. It would seem reasonably obvious that advancement within the department has been achieved through diligence, passing mandatory tests, and despite his injury and inability to participate in the AFT since 1998. His performance reviews, apart from the year 1994/5 have always been more than satisfactory, attracting comments of 'very good' year on year to above average in 2000/2001. He spoke of his preparation for and confidence in passing a number of compulsory papers to be written next year.

25. The plaintiff was especially concerned with his inability to participate in the AFT. He obtained exemption on medical ground in 1999 and asserted that exemption for the 2000 AFT was obtained with much difficulty. As pointed out, that might well have been so for he had not applied in good time with updated medical report.

26. On the evidence of DW2, Mr. Michael Bishop (Mr. Bishop), Assistant Director of Operations at the ICAC, general good health of serving personnel was to be encouraged. He was unaware that it was a special requirement for promotion, but agreed that it would generally be taken into account. The plaintiff hopes to achieve advancement in due course to the rank of Senior Investigator and with it, fast track to the upper pay scale. The post of senior investigator was not considered a promotion. It merely offered higher pay. The four criteria which must be met for advancement to the post are set out in the letter of 11 September 2001 from the ICAC, which Mr. Bishop admittedly drafted himself. Mr. Bishop clarified that passing the AFT, a matter of great worry for the plaintiff, was not a prerequisite for this or any other posting. What figured more significantly was the candidate's job although general health was a factor for consideration.

27. As for the AFT, Mr. Bishop disabused the notion that repeated failure to take part in or complete these tests would somehow affect future employment or adversely affect one's career within the organization. That he said was simply not the case. He testified, 'if an officer produces medical certificate that he is not suitable for the AFT, that is the end of the matter. Failure to participate would not work against the staff...if the condition is permanent, he would be exempted until retirement'. As far as he was aware, there were even Chief Investigators within the department exempted from AFT on medical grounds. This aspect of Mr. Bishop's testimony should adequately address the plaintiff's concern.

28. Mr. Bishop made it clear that renewal of contract was not a certainty. It applied across the board to every staff member. To put it bluntly, he said 'there was no security for life'. Turning to the plaintiff's fear that outside recruitment to the IT department would prejudice serving officers, he pointed out that such recruitment, designed to ensure that the ICAC would remain on the cutting edge of technology, were made to fill vacancies arising through natural wastage.

29. Under cross-examination, Mr. Bishop confirmed the possibility of the plaintiff being transferred back to investigative duties at some future time. The plaintiff was afterall still a member of the Investigation Section, albeit currently engaged on IT work. Job rotation was an adopted policy to encourage cross-pollination of ideas and skills according to him. He opined that as long as the plaintiff was able to produce medical certificates for exemption from the AFT, his injury would have a minimal effect upon his advancement from investigator to senior investigator. On available information, he saw no impediment to the plaintiff's continued employment with the ICAC. Although he has often seen the plaintiff at work, he did not notice him limping.

30. The plaintiff has not suffered any loss of earnings and is not unlikely to in the future. His chosen career seems to progress smoothly. All indications are that advancement to the rank of senior investigator remains an attainable goal. On the available evidence, I cannot discern that any loss of earning capacity has been established. Even with his permanent disability, there is no substantial or any real risk that he would lose his employment on account of it even if he were to be transferred back to investigation, a possible scenario on the evidence. The evidence was very much to the contrary. Assuming for the moment that he might at some future time be thrown on the labour market, with his IT experience and expertise in programming, would he be less likely to secure employment because of his injury? I think not. He would be no better or worse off than any other competitor with similar background, age, skill and experience. Were he to be a manual labourer for whom physical impairment would be a distinct disadvantage, the considerations would be entirely different. On the available evidence and guided by the authorities of Moeliker v A Reyrolle & Co Ltd [1976] I.C.R. 253 and Foster v Tyne and Wear County Council [1986] 1 All ER 567 CA, I rule that the claim for loss of earning capacity fails entirely.

Loss of promotion prospect

31. This claim is equally incompetent in my considered judgment and should be dismissed for reasons canvassed above. There was simply no evidence at all that his chances of being promoted have been compromised by the accident.

Conclusion

32. The plaintiff is awarded $260,000 for pain, suffering and loss of amenities. The award shall attract interest at 2% p.a. from the date of issue of the writ to the date hereof. Special damages were agreed at $38,218 with interest thereon at half judgment rate from the date of the accident to today and thereafter at judgment rate until full payment. The total award is therefore $298,218.

33. As to costs, the defence urged that should the total quantum fall below the enhanced jurisdiction of the District Court, the District Court scale would be appropriate. It was contended that the plaintiff ought to have reconsidered his case much earlier on. Had he done so, he would have taken steps to minimise costs by changing forum. I do not agree. The evidence pertaining to the issues of loss of earning capacity and loss of promotion prospect were far from cut and dry. The plaintiff, having succeeded in this assessment, albeit not to the extent as he would have wished, shall have his costs on the High Court scale, taxed if not agree. I certify the assessment fit for counsel.