KWOK SHUN TAI v. WONG CHIU YUET AND OTHERS

1987, No. A4614

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 9th October 1984 at about 8:05 a.m., the female plaintiff was standing on the pavement of Lung Mun Road when she was knocked down by a goods vehicle travelling along Lung Mun Road in the direction of Tsing Wun Poad, driven by CHAN See-yue, who has since died of unrelated causes.

2. The issue of liability has been determined as a preliminary issue, with blame for the accident being apportioned equally between the plaintiff and the deceased driver.

3. The plaintiff was aged 39 at the time of the accident.

4. As a result of the accident she lost consciousness and was admitted to the Princess Margaret Hospital with serious injuries, including laceration and bruises on the right side of her face with right eye blindness, fractures of the facial bones on the right side; dislocation of the right shoulder; bruises over the right side of the chest and abdominal wall; degloved injury of the right leg and ankle with fractures of the medical malleolus and calcaneum.

5. She underwent two operations for her right ankle and foot injuries, debridement on the 13th October, 1984, and debridement and skin grafting on the 31st October, 1984.

6. There was tinnitus in her ears and palsy of the left sixth cranial nerve affecting her visual acuity due to left cerotico-cavernous fistula; this was operated on at the Queen Elizabeth Hospital, which involved temporary ligation of the carotid artery and clipping of the internal carotid artery and removal of clots.

7. The plaintiff also lost four teeth which were replaced with a denture by the dental surgeon of Princess Margaret Hospital.

8. The plaintiff was in hospital from 9th October, 1984, to 4th April, 1985.

9. She developed an ulcer on the right heel where the skin graft had been applied. She was re-admitted to Princess Margaret Hospital, where she underwent a two-stage fascio-cutaneous flap operation on the 21st April and the 15th May, 1986.

10. In June 1986, the heel injury was complicated by a deep vein thrombosis dealt with by oral medication. She was discharged on 11th August 1986.

11. The claim for damages relates to:

Scarring

12. The details are set out in the statement of claim, but briefly they are a scar above the right eyebrow (2½ inches); a scar on the right upper lip (1 inch); a scar on the left neck (2 inches); skin graft on right foot; scar on right thigh (6" x 4") where the skin graft was taken.

Right Foot

13. Permanent impairment of right foot.

Byes

14. Permanent visual defect in both eyes, visual field defect in both eyes; photophobia of right pupil.

15. The evidence in this assessment was heard over four days, and submissions in writing were submitted by the plaintiff and the defence.

16. There were 7 witnesses for the plaintiff, including five doctors, and one medical witness for the defence.

17. At the commencement of the hearing, the plaintiff sought to produce an amended statement of claim which was not objected to, together with amended particulars of claim objected to on the grounds that the amended particulars should have been provided earlier. After hearing submissions, I allowed the amended particulars of claim.

18. Later in the hearing, the plaintiff sought to produce a re-amended particulars of claim, subject to an objection by the defence; after hearing submissions, I allowed the re-amended particulars of claim.

19. The plaintiff's bundle of document were read and adopted by the plaintiff, items 1 to 10 having been agreed.

20. The first witness for the plaintiff, was Madam CHOW Siu-ying, aged 46. Madam Chow was a colleague of the plaintiff. At the time of the accident, PW1 earned $120 per day with no travelling allowance, the plaintiff had received $100 per day, plus $150-$160 fortnightly for travelling allowance. She also received meal money at that time. At present, P.W.1 is paid $230 per day, but she does not receive a meal allowance, noting that she has '$12 travelling expenses per day'. She works every day of the month; she does not work in heavy rain.

21. In cross-examination, she said she now works nine hours per day, and she could earn approximately $7,000 per month. She had been earning $230 per month for the last 7 to 8 months. Before that time, she had lost her job because there was not enough work to do. She agreed in the future she might not work as much because she is older. At the time of accident, and for two years after, she earned $120 per day. The plaintiff earned $100 per day at the time of the accident, and this rate was increased to $120 per day after the accident.

22. Mr. YEUNG Kwok-yee, P.W.2, the manager of Wide Project Engineering and Construction Company, gave evidence under subpoena. He confirmed that the plaintiff was employed by the company in October, 1984. He confirmed the Schedule, marked P.1, to be a schedule of the plaintiff's earnings; that the plaintiff had been paid fortnightly, with a meal and travel allowance of $10 per day, and that this was paid in lump sums of between $140 and $160 fortnightly. The plaintiff's basic daily rate in 1984 was about $110 to $120. In 1985, the daily rate was $150, and currently it is $220 per day. After 1985 the daily rate had been $180, but he was not sure when it had occurred. No meal allowances are paid now. There is a shortage of labourers at present, and that has been the case for the last nine years. If they are industrious, casual labourers work 30 days per month; if not, they work a 26-day month. There is 'much' overtime available for labourers at the present time, with overtime payments being calculated on the basis of two hours being equivalent to ½ day. A labourer works five hours per week overtime approximately, being 1 days per week. The current daily rate for labourers on government projects is $210.

23. In cross-examination, he said that he had not prepared the Schedule. In the past five years, it had been easy for a casual worker to find work.

24. In re-examination, he said that although the daily rate was $110-$120, the figure of $130 was inserted in the imployers Compensation Form 2 because the meal allowance was not included in the figure of $110-$120. He confirmed his estimate for the average overtime worked in 1984 as 5 hours per week, and that his estimate for 1989 was 8 hours per week. The average increase per annum in the daily rate since 1986 was 20%; the increase for 1986 was 30%.

25. Mr. Fali Shroff gave evidence. He identified and produced his report dated 22nd April 1989 (marked P.2). Counsel took Dr. Shroff through his report, and referred Dr. Shroff to other medical reports in the bundle from time to time.

26. Dr. Shroff said that he found the plaintiff's complaints to be genuine.

27. He confirmed his neurological examination as set out at page 2 of his report, as well as his specialised investigations also set out in page 2. He concluded that the left frontal craniotomy caused the depression on the left side of the plaintiff's forehead.

28. Dr. Shroff confirmed the details of the audiogram reading, also at page 2 of his report. In this case the loss is of a moderate degree at 30 decibels.

29. Dr. Shroff explained the test of post-traumatic amnesia (PTA), which is set out in his report at page 2-3; 'The duration of PTA normally exceeds by a considerable margin the length of time for which the patient was regarded as unconscious, because it includes the time then the patient was awake but confused'. Dr. Shroff emphasised that it is quite different from the period of unconsciousness. He confirmed his opinion that, according to the scale of duration of PTA as expounded by Professor Jennett, the severity of the head injury sustained falls into the severe category.

30. Dr. Shroff then explained the rare complication of carotid-cavernous fistula which arose in the plaintiff's case. The craniotomy on the left side of the forehead involved the clipping of the artery to prevent the blood flowing into the brain.

31. With reference to the plaintiff's complaint of frequent dizziness, Dr. Shroff said that it would be very difficult to say how long the dizziness would continue. As to her complaint of memory defects, Dr. Shroff said that with a severe head injury he would expect some defects of memory and concentration. Her complaint of difficulty in doing simple calculations reflects the severity of the head injury. He noted that the headaches suffered by the plaintiff were also consistent with the severity of the head injury. It would be hard to say how long the headaches might continue.

32. Dr. Shroff said that the left sided hemihypoaesthesia, which was found on neurological examination, could be either as a result of the head injury or a reaction to the operation.

33. The first three diagnoses in Dr. Woo's report related to the limb injuries which did not come under Dr. Shroff's specialty. With regard to the fourth diagnosis, Dr. Shroff explained that post traumatic brain syndrome or post concussional brain syndrome was a layman's term, meaning a cluster of symptoms experienced by someone who had suffered a head injury, including headaches, dizziness, inability to calculate and poor memory. He noted that a change of personality did not fall under any particular term, but it can follow severe head injury. He said that the inability to calculate is a recognised symptom under post-concussional head injury, if it is due to poor concentration. If this is not the cause, then it is more serious, and is part of the whole intellectual impairment caused by frontal lobe damage. Although the C.T. scan did not show frontal lobe damage, it does not eliminate it.

34. Dr. Shroff took issue with Dr. Woo's fifth clinical diagnosis. Dr. Shroff did not think that the plaintiff had suffered a brain stem injury. He noted that Dr. Woo based his diagnosis on the paralysis and the impairment on the left side of the body. Dr. Shroff put the paralysis down to the third carotid fistula. He ascribed the residual neurological deficit to the fistula and the impairment of hearing to the head injury. He did not find left bypaesthesia when he examined the plaintiff.

35. Turning to Dr. Woo's opinions at page 4, he agreed that the plaintiff had been left with a number of severe disabilities and permanent neurological deficits.

36. He then said that the carotid fistula can arise again in the future, as a result of an increase in pressure, but the chances of this are not very high, maybe 10-15%.

37. Dr. Shroff said that the combination of the disabilities would make it difficult at times for the plaintiff to carry out household duties. He said that he was of the opinion that a cleaning job was beyond her capabilities, and he said that using public transport would be difficult for her.

38. Dr. Philip Wen-chee MAO gave evidence, and he produced two reports, the first dated 3rd August, 1987, together with a short supplementary report dated the 9th October, 1987; and the second report dated 11th October, 1989. Dr. Mao was taken through his initial report with care.

39. A palpable depression can be seen on the plaintiff's forehead. This was the consequence of the operation at the Queen Elizabeth Hospital, and he confirmed that it was permanent.

40. He had referred the plaintiff to Dr. Heffernan for assessment of her left eye deficiency.

41. Dr. Mao confirmed his supplementary report dated 9th October, 1987, which had been as a result of his consideration of Dr. Heffernan's report, dated 1st October, 1987.

42. Mr. Mao was referred to his second report of 11th October 1989 where he suggested a reassessment be done by Dr. Heffernan of the 6th nerve palsy because he was of the view that there had been recovery. He was referred to Dr. Heffernan's report dated 9th November 1989, in which Dr. Heffernan made an assessment of a permanent 35% visual disability in each eye. On that visual assessment, Dr. Mao agreed that an adjustment to '30%-something' would be appropriate.

43. Dr. Mao confirmed the complaint of cramps in the left calf and 'that her leg is sometimes swollen', and he credited the complaint of deep vein thrombosis.

44. He noted that she cooks and washes at home but does so sitting down. He said that when the attacks of giddiness interfered with her housework, she would need to lie down. Her condition was probably static. In his report, he expressed the opinion that he did not think her mobility would be very much worse in ten years time. It would not be possible for her to return to work as a coolie.

45. In cross-examination, Dr. Mao said that the continuation of physiotherapy would not have made much difference.

46. With regard to her eyes, his examination showed that movement of both eyes are normal.

47. In the third report (dated 11th October, 1989), at page 2, Dr. Mao had expressed the opinion that the plaintiff's eyes had improved a lot; Dr. Mao confirmed that her eyesight was sufficient to enable her to attend to marketing, to take a bus and so on.

48. With regard to the right foot pain brought on by walking for 15 minutes, Dr. Mao said that this was satisfactory in the sense that this is what would usually be expected after the sort of operation which she had undergone.

49. Dr. Mao said that the plaintiff could do basis tasks at home. She could probably do basic packing work 'up to a point'. He did not know if she could assemble dolls, accurate vision is required. He did not know whether she could do packing work.

50. Dr. Mao described the plaintiff as being quite straightforward, that she answered 'clearly, no hesitation'. He did not find that she complained a lot. He said that she was sober in her answers; she was stable, and he did not detect any anxiety. There were no emotional outbursts.

51. In re-examination, Dr. Mao said that it would not be possible to recommend work where standing all day is required. It was a question of whether she could do the work, noting 'I don't think she can put a doll together, it needs far more visual ability than that'.

52. Dr. Peter Wu gave evidence. He produced his report dated 28th September, 1989, which was admitted as P.4. He had examined the plaintiff on 21st September, 1989, and confirmed that he had considered the reports listed on the first page of his report.

53. He was referred to paragraph 3, page 2, where the plaintiff's complaints are listed.

54. Dr. Wu confirmed that the plaintiff had very poor memory for past and recent events, with difficulty in doing simple calculations in her daily chores at home. She suffered headaches, treated with analgesics, several times per week. This was consistent with a head injury. She complained of flying objects in the left eye.

55. The details of Dr. Wu's physical examination is set out at page 3, including details of the neurological examination. He noted that the extent of her vision is quite normal. This is not the same as visual acuity.

56. He confirmed his clinical diagnoses as set out on page 3.

57. With regard to diagnosis 4, he noted that post traumatic brain syndrome is also called post-concussional syndrome, that it varies in intensity and duration from patient to patient. In his opinion, in the plaintiff's case, some form of the syndrome will remain permanently, and she will be left with some permanent disability.

58. With regard to diagnosis 5, he said that the residual neurological deficit was more likely to have been caused by the brain stem injury the patient suffered when she received the impact on the head rather than by the carotico-cavernous fistula.

59. Dr. Wu was then referred to the opinions expressed on page 4. He noted that in accordance with the scale of Professor Jennett the head injury suffered by the plaintiff was 'severe'. When he examined the plaintiff, he had available Dr. Shroff's report dated 22nd April, 1989; the patient still complained of the symptoms set out in that report. He credited the plaintiff's complaints and thought her to be genuine.

60. The plaintiff suffered a brain stem injury, which means that all parts of her brain function are likely to be affected, with a change of personality. She would be much less efficient at work, and she may be less attentive to her work.

61. He thought that she may not have any great incentive to return to work. Although she has suffered injury to the upper brain stem, she can still present to a general practitioner as someone clear-headed and well-orientated. With advancing years, any residual disability will be magnified. Dr. Wu could foresee in her 60s and 70s difficulty in her locomotor function. Vision difficulties will also be magnified. Her memory difficulties will increase with time. Her personality changes will deteriorate. He thought that she would be less careful in her personal appearance, in her communication with others, causing her relationships with her family members to be more difficult. Assuming she could find simple light manual work, the deterioration brought about by time, would cut short her working life considerably.

62. Dr. Wu agreed that the post traumatic brain syndrome would affect a professional worker more than a manual worker, but it would affect the manual worker to some degree. He confirmed that the plaintiff should be able to do simple packing work.

63. Dr. Wu said that he had reached the conclusion in diagnosis 5 from the physical signs of right third nerve paresis.

64. Dr. Peter Whyte, consultant psychologist, gave evidence for the plaintiff, and he produced two reports, one dated 21st June, 1989 and the second dated 25th July, 1989, both admitted in evidence as P5 and P6.

65. The plaintiff first attended his clinic for assessment on 26th April, 1989. He carried out the revised W.A.I.S. to test for general intelligence, using the non-verbal performance scale, and the vocabulary sub-test. He used the IPAT self-analysis form, which is a disguised test for anxiety. The Rozenweig test was administered to test reaction under difficult circumstances.

66. Her I.Q. was 63, she was assessed to be a high-grade mental defective, which places her in the lowest 2.3% of the population.

67. The conclusion reached is that the plaintiff is of a very low-grade intelligence and would be ill-equipped to cope constructively with the effects of her accident or the rebuilding of her life. She appears to be adjusting in a passive and somewhat hopeless way, with a reduced enjoyment of life and considerable residual anxiety.

68. As to employability, it is possible that she could sweep the floor, but he could not be sure whether she could do this for an eight-hour day. She is apprehensive and irritable about the possibility, and describes herself as an invalid due to physical disability.

69. He said that this was not a case of compensation neurosis.

70. He was not prepared to say that her present intelligence level was caused by the accident, because no test provides a quantitative indicator consistent with intellectual deterioration.

71. On observation, he noted that the plaintiff became agitated when she spoke of her health. She told him that she did not like going out because of feelings of dizziness and of physical discomfort, and she displayed emotion when describing these problems. At other times she was relatively quiet and calm.

72. He could see no reason why she should not try to do simple packing jobs at home; experience would show whether it is economically viable. She has the physical capacity to do it.

73. If the plaintiff were given work that she felt she could not do, he predicted that she would look for physical reasons not to do it, and she would become unemployable. This is a form of self-sabotage, but it is not done consciously.

74. Dr. Heffernan gave evidence. He had examined the plaintiff on two occasions, once in 1987 and once in 1989, and produced two reports, one in the agreed bundle, dated 1st October, 1987 marked P.7 and the second dated 9th November, 1989 produced in court, admitted and marked P.8.

75. At the time of the first report, he had before him the hospital reports, the report of the Government opthalmologist and the report of Dr. Philip HAO, dated the 3rd August, 1987. He was taken through the contents of his first report by counsel for the plaintiff.

76. He confirmed the details of Madam Kwok's opthalmological history until 24th September, 1987. Her corrected vision was slightly defective, being the second smallest size on the standard chart.

77. The range of eye movement was full. The right pupil was smei-dilated in comparison with the left pupil. He did not measure the diameter of the right pupil, since the normal size can vary from two to five or six times, depending on the light.

78. Mr. Heffernan repeated the opinion as expressed in his report, that there is a permanent visual defect of some 20% in the right eye and 25% in the left eye, that the fistula had caused damage to both optic nerves and that the assessment is based on the result of objective tests. He said the damage to the eyes was more or less the same.

79. The plaintiff must have defective peripheral vision because of the damage to both the optic nerves. In his opinion, she has probably lost half of the peripberal field on each side. As a result of this, she is more vulnerable to injury at each side. The plaintiff would be at risk on crowded public transport, because rapid perception of people is very important in such a situation, for example, when crossing Hennessy Road.

80. The semi-dilation and impaired upward movement of the right eye are due to right third cranial nerve damage and optic nerve damage. If the patient is subjected to intense light suddenly and unexpectedly, she would be totally incepacitated for a short time. This is not a problem in the normal domestic scene.

81. The impaired upward movement results in double vision when using both eyes, which disappears if the right eye is closed. Dr. Heferrnan did not believe this to be a problem for the plaintiff since the degree of muscle weakness has become relatively minimal with time and the upward gaze is a relatively infreguent posture.

82. In his report he noted that both optic discs show slight pallor; this indicated damage to the optic nerve. The visual fields are impossible to assess because of the intelligence level.

83. Dr. Heffernan confirmed his conclusions and his figure of 35% visual disability in each eye, and stated that binocular visual disability would be about the same. He had not calculated the disability to the whole person because it is very difficult to guantify. He had included the central vision defect, the peripheral vision defect, the eye movement defect, the absence of gaze vision in certain positions. He did not take into account the photophobia or the visual field defect because there would only be a risk in emergency situations.

84. Because of her visual disabilities, he recommended that she lives in a sheltered environment, work would not be a problem provided she is in a room where she is familiar with her surroundings. She would be at risk in a hazardous environment. She could do very basic simple work, domestic repetitive work such as cleaning. She would be capable of packing light goods provided they were not breakable, because she would not see a breakable item peripherally.

85. Madam KWOK gave evidence. She is 44 years old, married with four children aged 24, 22, 19 and 16. She came to Hong Kong in 1979 from China, she had one to two years of education in China; she can sign her name; she can read the large print of the newspapers, but only the easy characters. She worked in the fields in China. She has lived in the wooden hut at Tuen Mun since she arrived in Hong Kong. She started to work on construction sites as soon as she arrived. She 'moved wooden planks and stuffing concrete'; the company provided the equipment. She did not carry the concrete, but 'after the concrete was placed on the ceiling, I just removed the wooden planks from the surface'. At the time of the accident she was working on the road side, building sewerage and drainage. In the course of that work, she used metal equipment to clear the mud, carried mud and sand and cement, and as required she would dig. Before the accident, her health was fine and she never rested. She would work all day for the whole month, except the mid-Autumn festival and other significant Chinese festivals. There were no other holidays.

86. She was paid $110 per day, including the meal expenses of about $10 per day. She worked from 8 a.m. to 11 a.m., and from 1 p.m. to 5 p.m. She did 'extra' work ten-odd days per month, with two hours overtime being counted as an afternoon's work, that is $60.

87. At the time of the accident she was 39, and she had intended to continue working until she could no longer work. At the time of the accident she had no savings.

88. After her operation the sounds in her head disappeared. The left eye is always blurred, and when she looks out of her left eye she sees only a black shadow. If she closes her right eye, she can only walk around slowly because the vision in her left eye is blurred. The image on the TV is very blurred. There are no problems with her right eye. Because of the problem with her left eye, she can only walk very slowly, she follows the queue to board a bus. She can use the 'village vehicle' to go to and from the market. She cannot walk to the market because of the blurred vision, and the bottom part of her right foot aches in the middle between the toes and the 'bill', that is, the instep. As soon as she stees on the floor, the instep aches. When she walks slowly on flat ground, she can put her heel to the ground; when she walks upstairs she cannot put her heel to the ground because the tendons of the ankle would become tense, she cannot stand on her right leg because it would ache, she can only squat on both legs slowly, and she cannot put the heel of her right leg on the ground. She cannot run or walk fast.

89. Two or three times each month the tendon of her left leg contracts drastically, and the left leg aches for 15 to 20 minutes. When this happens she cannot walk, and must sit down. She "taps" the leg when this happens.

90. She goes to the market every day; she buys small quantities each time, so that she can cope with this on her own. She does housework slowly, she does the cooking. She has a washing machine. She can hang the wash, but slowly, and her daughters offer to do it for her.

91. She feels dizzy two to three times per month, and it lasts for the whole day; she goes to the doctor for medicine, and the dizziness would be 'lessened' in two days.

92. She had not returned to work since the accident; she was not capable of going back to work. She did not think she could try some form of light work because of her problematic health.

93. She had come to court alone and that she had left home just after 6 a.m. She had taken a bus from the village to the Tsuen Wan M.T.R. arriving at Admiralty at 8:45 a.m. It took her a half-hour to travel from her home to the residential estate where she caught the bus, but that it would only take an average person ten-odd minutes.

94. Her head often feels dizzy, her left eye is blurred, her foot aches, and that she is a useless person. Before the accident she could do whatever she wished she could walk where she wished, but she could not do that now. When her head feels giddy, she hears a sound in it, and she described it as a 'fli' sound. After taking medicine, she feels better and the sound fades away. She had beadaches about twice a month, she did not have headaches before the accident. She takes medicine to kill the nerve pain, but she did not know if it was the same medicine as she took for the giddiness. Her medicine costs about $40 per month.

95. Madam Kwok showed the court the scars on the left forehead, the left side of the neck, over the right eyebrow, on the right upper lip; she considered the left forehead scar to be the worst because it is indented. She thinks people can see the scars. Her attitude towards the scars is 'well, I have had bad luck so let them look. My husband's attitude - okay, let it be. He says well you had bad luck, there's no remedy. Let it be.' When asked if she would undergo surgery to improve the scars, she said she would not; the thought appals her.

96. She takes two hours to do the marketing; before the accident her husband did the marketing because she worked long hours, while he finished work at three o'clock.

97. As to her hearing, she was not as alert as the average person. The hearing in her right ear is clearer. Before the accident she could see all signs, but now the vision in her left eye has become blurred. When she closes her left eye, the right eye vision is all right, but not as good as before the accident.

98. Her temper has become nasty because of the inconvenience, and she now forgets things, including former friends and some of her work skills; she can do easy addition and subtraction but more slowly than before. She declines social invitations because of her sore feet. The brightness of the sun irritates her left eye and she covers it with her hand. Her relationship with her husband is not as good as before because she cannot work and cannot do the things she is asked to do. If the accident had not occurred, she would have continued with her previous work.

99. She has lost three front teeth, two upper and one lower, and she has a dental bridge, but this is not as good. She has a limp because her heel cannot touch the ground, she cannot walk for long because the foot aches, and she has to rest from time to time. She has severe scarring of both legs, and her right foot is so ugly she does not like to wear open shoes. She never wears skirts but she never did before the accident. She wears socks all the time because the ugliness of the right foot appals people.

100. In cross-examination, Madam Kwok confirmed that, before the accident, as well as going out to work, she did the housework and marketing, while the older children looked after the younger ones, and also did the cooking. Her life had been hard and tiring, but she did not have any back pain or leg pain or sickness. She spent most of her time between work and home. The family did not go out to restaurants or entertainments because they were very poor. She did not have many friends in Hong Kong, other than her relatives and colleagues at work. She does not know how to play mahjong. Before the accident, she would go to Tsuen Wan to shop, but not now.

101. Before the accident, she would leave home at about 6 a.m., taking the free company transport to work and back home.

102. She started work at 8 a.m., stopped for lunch at 11 a.m. She would go out to a restaurant for lunch; the company paid a meal allowance. she had a basic wage of $100 per day at the time of the accident, as well as a $15 lunch allowance. she worked overtime about 15 days per month. Two hours overtime equalled a half day's wage, so that 15 days per month equalled 30 hours overtime per month. She worked 15 days per month overtime most months.

103. She carried wooden planks and cement at work. It was quite heavy work, the planks weighted several tens of catties and she walked slowly when carrying them. None of her tasks at work involved her in running or jumping from one level to another.

104. She had not considered doing packing work at home because of her injuries. She can cope with the household duties because she can stop when she feels she needs to.

105. Dr. Bernard LAU gave evidence for the defence. He identified and produced a report dated 27th September, 1989, which was admitted in evidence as D1.

106. He saw the plaintiff on two occasions, the first on the 21st September and the second on the 27th September. He had available to him the full spectrum of medical reports as noted in the first paragraph of his own report.

107. The second paragraph of his report sets out the background of the plaintiff. He noted that there was no language barrier, and that the plaintiff could hear and answer his questions clearly, she could follow the conversation quite well, and all her responses had been appropriate.

108. He confirmed that she had relatively few complaints, that she had cited giddiness and throbbing headaches occurring about three out of every ten days. He said subjective discomfort is hard to determine. He accepted the complaints as genuine, although it was difficult to assess their nature.

109. The dizziness caused her to lack confidence in committing herself to some demanding jobs or to some task requiring long hours. The attacks did not affect her household duties significantly.

110. She said that her right eye vision was all right, but complained of blurring and 'the presence of light' in her left eye. She had pain in her right heel which he accepted. He did not notice any limp as she entered and left his room, but she did walk slowly. She showed no symptoms of giddiness, and her daughter did not assist her in any way.

111. Her disabilities might impair her ability in fine movements of the bands. He was of the opinion that she was capable of doing most, if not all, household tasks slowly. She had received adequate and full support from her family, and they do not press her to return to work.

112. Prior to the accident she was asocial and reclusive, she had not moved around Hong Kong. After the accident, she continued to be settled and withdrawn at home. These matters are set out in page 4 of the report. Her physical and neurological disabilities had not changed her lifestyle. The major change wrought by the accident was at work.

113. She has a negative reaction to stress or crisis, she tends to avoid confrontation and becomes too passive, due to her background. Her passivity would cause her to maintain inactivity, and she would not volunteer to seek new tasks. Then she is forced to confront a stressful event, he would expect her to respond with excessive anxiety or agitation which would be transient.

114. He agreed with Dr. Wu to the extent that she is passive; but he believes that she is concerned, although she is able to accept her position. She has successfully reconstructed her previous style of life. She has an unnecessarily pessimistic view towards life and herself. She perceives household tasks as her particular obligation, and can take these up; other tasks are optional and can be excused in terms of her injuries.

115. He believed that the plaintiff can go back to work, but that she is not ready to return. Inertia may have developed. A return to work and to unfamiliar places would be stressful to her. Her inertia or lack of motivation can be intensive by intensive counselling and rehabilitation.

116. He had seen Dr. Peter Whyte's report dated the 21st June 1989. He disagreed with Dr. Whyte when he said that the plaintiff was emotionally unstable, tense, with overt anxiety. His impression was that she was composed and placid, and she answered clearly and slowly without mistakes. He accepted that there was some anxiety because of the situation.

117. To benefit from the WAIS test results, it is necessary to interpret all three scores, the verbal, the performance and the total score. The I.P.A.T. self analysis is a test for anxiety. He could not disagree with the result, but he is of the opinion that anxiety is a clinical diagnosis and it should be ascertained through psychiatric interview.

118. He reserved comment on the Posenzweig tests, not being an expert on this. He tended to believe that there was no substantial lack of constructive problem-solving since the plaintiff is successful in making the home comfortable for her family, and can cope with shopping and visiting the market.

119. In his letter dated 25th July, 1989, Dr. Whyte noted that she is preoccupied with the visual defects, ankle pain and dizziness. Dr. Lau disagreed with this. She seldom mentioned then more than once at interview, and she seldom made reference to her complaints.

120. Her memory is quite satisfactory; she can remember certain dates, such as her birthday.

121. With regard to her ability to calculate, he was of the opinion that she could perform simple calculations. He acknowledges that there is some change in her bebaviour and emotional responses, but that her basic character has not been changed.

122. He stands by the statement on the last page of his report that 'she has been guite successful in containing the disabilities and coming to terms with them psychologically'.

123. He was referred to Dr. Peter WU's conclusion that the plaintiff had been left with severe disabilities, but he saw no evidence to that the disabilities were severe.

124. In cross-examination, he agreed that before the accident her life revolved around work with no social activities outside the home, that she was an introverted person. Initially, he said it was 'possible' that a severe head injury would cause such a person to become more introverted and reclusive. When pressed, he agreed that this was 'likely' to happen.

125. He accepted that before the accident she had been unenterprising and unambitious, and that a severe head injury could accentuate these characteristics. He said that this was a possibility, but would not agree that it was a probability.

126. The fact that she cannot return to her pre-accident occupation had had a shattering effect on her morale, and that it could continue to do so if she did not go back to work. He said that she could do basic factory work. He suggested that she could work at home, with no deadlines. He did not believe that it was too late for rehabilitation. He accepted that the plaintiff had suffered severe head injury in the accident, according to Dr. Jennett's scale.

127. He was aware of post-concussional syndrome, but he did not accept that she suffered from it. A patient is not labelled as having post-concussional syndrome because of the presence of symptoms. He did not agree with Dr. Peter Wu's clinical diagnosis of post traumatic brain syndrome, saying that he would not use that term at all. When the symptoms listed in Dr. Wu's report were put to him - poor memory, inability to calculate, frequent headache, dizziness, change of personality - be said that he would use the expression post-concussional syndrome for these symptoms, but excluding the inability to calcuate.

128. He credited the complaints of headaches and dizziness. Their cause could be post-concussional syndrome, but they might be related to organic damage. It is 'possible' they are associated with the head injury, later he said it was 'likely' they are associated with the head injury. When acked if by "possible" he meant "likely", he said that that was not necessarily so in every statement.

129. She was capable of doing light repetitive work at home. When asked if that is the optimum she could achieve, he said that it is realistic for the time being. It would take at least two years to reach that stage. He had not mentioned rehabilitation in his own report because his instructions were to assess her but not to make recommendations.

130. It is quite likely that the plaintiff is suffering a mild reactive clinical depression, which is quite distinct from anxiety neurosis. He had not referred to it in his report since it was universal in most cases of severe injuries, and it takes some years to subside.

131. On all the evidence, it is possible that she suffered some intellectual deficit, given the severity of the head injury.

132. He was of the view that she could do more to find employment. If she did not try, when she would never know her potential in any given job. He suggested a task such as assembling plastic flowers or toys, not involving machines, if available. Assembly work was suitable for anyone under sixty. The work could be done at home, with the factory arranging delivery and collection of the finished goods.

133. He did not consider it misleading not to allude to rehabilitation in his report. He normally completes the assessment, and if his recommendation is not crucial at that point in time, he would await further instructions.

134. He expected that the plaintiff could return to work in two years time, but he could not say exactly when.

135. His estimate of two years for her rehabilitation was based on the fact that her mood is very stable, and she appears to be ready to try something different. Her morale is still on the low side, but she can discuss her disabilities with not much emotional outbursts.

136. Her mild clinical depression had cleared, and he expected that it would have lifted entirely in one year. Another year would be sufficient to motivate her to return to simple work.

137. Normally there was quite a low risk in doing light industrial work in the home, and work in the home or in a factory would be therapeutic. He would expect about a 30% improvement in her basic working skills. She perceives the accident as something that is outside her control, and this is helpful to her to a certain extent. It is hard to say whether there is any personality change since the accident.

138. He disagreed that this was a hopeless case, or that she was incapable of going further than at present. When the mild depression lifts, her anxiety will be much less in frequency and intensity, and this could take place in about a year. His instructions had not required him to comment on future rehabilitation, and his report had not misled the court.

139. Written submissions were placed before the court.

Pre-trial loss of earnings

A. Wages at date of accident

140. Plaintiff's counsel submitted that the evidence showed that the plaintiff's monthly income was:

141. It was submitted that this ought to be accepted as it was not challenged and it is not so inconsistent with the other evidence as to render it unreliable.

142. The Schedule of Earnings is suspect given that the employer agreed that the plaintiff's daily wage was shown to be $130 per day in the ECC Form 2 when plainly it was not. The figure for overtime is sumported in general by the evidence of the employer.

143. Madam Chow confirmed that the plaintiff was paid $100 at the time of the accident, and that she herself does the same work as the plaintiff did before the accident, and she is now paid $230 per day with $12 per day travelling expenses. She herself at the time of the accident had been paid $120 per day.

144. The employer gave evidence that in 1984 the basic wage was $110 to $120 with a lunch allowance of $10 per day. Earnings had risen sharply, and in October 1989 earnings were $210 per day. Overtime work was available because of the labour shortage, and this on average came to the equivalent of 10 days wages per month ($210 x 10 days), being $2,100.

145. Thus, on that evidence, the plaintiff would be earning:

146. Counsel submitted that this is the minimum figure that the Court should use for the earnings for January, 1990. The court ought to adopt the higher daily wage rate given by Madam Chow, that is $230 per day, as the wage that the plaintiff would be earning now.

147. Thirty days per month should be used as the basis for the calculations, bearing in mind that there are 31 days in six months of the year, and that these cancel out the seven labour holidays.

148. The employer's evidence supports the overtime claim, and the court can take judicial notice of the shortage of workers in the construction and building industry for the relevant period.

149. The current monthly income but for the accident would be:-

150. The pre-trial loss of earnings would be calculated as follows:

$4,200 + $10,710

______________ = $7,455

2

$7,455 x 63 months = $469,665

151. Counsel submitted that the pre-trial loss of earnings is thus $469,665 and that this should attract interest at the rate of 5.4% from the date of the accident.

152. The defence submitted that the basic daily wage at the time of the accident was $100 with a $10 meal allowance, noting the schedule of earnings produced by the plaintiff and the evidence of Madam Chow, Mr. Yeung and the plaintiff.

153. On the issue of overtime, counsel submitted that the evidence of the plaintiff was inherently contradictory and inconsistent with the schedule of earnings filed by the employer and included in the plaintiff's bundle of documents. He noted that in chief the plaintiff said that she worked 10 days per month overtime, but in cross-examination she said 15 days.

154. Counsel referred to the schedule of earnings for the period from 1st November, 1983, to 30th September, 1984, noting that for the six-month period prior to October, 1984, the plaintiff had worked an average of 13 hours overtime per month.

155. Counsel noted that Madam Chow was earning a basic wage plus a travelling allowance of $12 per day, with no meal allowance. PW2's evidence is that the daily basic rate for labourers is $220 per day. The figure of $220 ought to be adopted, and counsel referred to his later submission that there was the possibility of periods when the plaintiff might not have been able to obtain employment in the period since the accident. Travelling allowances are not recoverable, being a work-related expense.

156. Counsel submitted that a 30-day working month for the whole period of her future working life makes no allowance for the financial contribution which would come from the children as they gained employment, the aging process which might cause the plaintiff to reduce her working days, the possibility that the plaintiff might have been unable to find employment as a labourer, and time lost for any number of reasons, including illness.

157. As to the amount, he noted that the comparison between the earnings in September and the current claim does not represent a realistic progression of the possible earnings. He argues that the evidence of PW2 on the issue of the increments is unreliable. He submits that if a casual labourer could earn $10,725 per month in 1989, then skilled labour, such as plasterers, must be able to earn around $20,000 per month with overtime; this is not the case.

158. The evidence as to hours of overtime worked is not reliable, and submits that 13 hours per month would be the proper figure, being the 1984 level.

159. In conclusion, counsel submits that the daily wage rate should be $220 for 23 days per month with 13 hours per month overtime:

$220 x 23	= $5,060
(i.e. 13 hours)	= $715
	________
TOTAL	$5,775
	=======

He noted that this figure makes no allowance for taxation. This is a more realistic progression of the earnings since 1984, with $3,450 in September 1984, $4,200 in 1987 as pleaded, and $5,775 in 1989. Taking $3,625 to be the earnings at the date of the accident and $5,775 as notional earnings at the date of judgment, the median figure would be $4,700, and the pre-assessment loss would be 63 months:

$4,700 x 63 months = $296,100

160. For wages at the date of the accident, I accept that plaintiff was earning a basic wage of $100 per day plus a meal allowance of $10 per day, and I accept that she worked an average of 20 hours (10 days x 2 hours per day) per month overtime. I accept that she worked 30 days per month, and that the labour holidays are accounted for by the six months of the year which consist of 31 days. The evidence is that the plaintiff was a hard worker who worked a 30-day month. The schedule of earnings was not proved by the maker, and cannot be given credibility. I found the evidence of the plaintiff, her colleague and her employer to be credible. Thus, the plaintiff's wages at the time of the accident are as follows:

$100 per day x 30 days	= $3,000
$10 lunch allowance x 30 days	= $300
$100 overtime x 5 days (20 hours)	= $500
	________
TOTAL	$3,800 per month
	=======

161. For current wages, I accept that the figure should be $220 per day with no meal allowance, and that it is not appropriate to take into account any travel allowance. I accept that the plaintiff would have continued a 30-day month. She is now only 44; the employer described her as being 'very industrious', meaning that she worked a 30 day month. I see no reason to believe that she would have changed those work patterns, bearing in mind her circumstances and that of her family, and I do not consider that her children joining the work force would have changed her attitude to work. Even with two wage earners in the family before the accident, she said they barely made end meet, and I have no reason to doubt this. As to the overtime assessment, I note PW2's evidence that a labourer works five hours (equalling 1 ¼ days) per week overtime at present, and accept this as the basis for calculating future loss. The current figure for the plaintiff would therefore be:

$220 per day x 30 days	= $6,600
5 days (20 hours O.T.) x $220	= $1,100
	________
TOTAL	$7,700 per month
	=======

The pre-trial loss of earnings would therefore be as follows:

$3,800 + $7,700

_____________ = $5,750

2

$5,750 x 63 months = $362,250

Loss of Future Earnings

Mitigation of Loss

162. The defence submits that the plaintiff is able to do light industrial work at home. Although no evidence has been produced, the defendant adopts the court's approach in LAU Chow-lam v. FUNG Mong-yan and anr. (1981) 11 HKLJ 127 at 128. In that case the plaintiff was a 44 year old illiterate ironing worker in a garment factory when he was injured in a traffic accident. He had suffered a subtrochanteric fracture of the left femur, resulting in a shortening of his left leg, and he had a limp at the date of the trial. He was only fit for light sedentary work which involved intermittent standing. He could have earned $2,000 per month as an ironing worker, a job he was not fit for because of the accident. There was medical evidence that he was fit to work as a watchman provided he did not have to negotiate more than two floors. There was no evidence of the earning capacity of watchmen, but it was assessed that he would have the potential earning capacity of $850 per month in that occupation, and the loss of future earnings was calculated on that basis. The defence is prepared to give the plaintiff the benefit of the doubt and say she is only able to earn $30 per day for 5 days per week.

163. Counsel for the plaintiff submits that whilst the plaintiff is under a duty to mitigate her loss, the defendant must prove that she has not mitigated her loss. The defendant did not plead this, nor were any of the reports or the evidence of Dr. Bernard Lau put to the plaintiff or her medical witnesses. None of Dr. Lau's evidence concerning the plaintiff's future prospects were in his report and, strictly speaking, none of it is admissible, its substance not having been disclosed before the assessment in the usual way. Counsel submitted that Dr. Lau's evidence as a whole should be rejected and that the court ought to find that the defendant has not proved that the plaintiff has failed to mitigate her loss.

164. The court was referred to the judgment of Nazareth J. in the case Dominga Elizabeth Ibironke Lakhan v. WU Wing-tat and TANG Ying-choy (3641/1983) at page 33, where it is said 'I do not think she should be expected to take up some other employment that she would not ordinarily have done and which she finds distasteful or even to undergo a designing course that she is diffident about simply to save the defendants some damages ......' and later at page 34, where it is said 'The defendants' submission that the plaintiff failed to mitigate her loss, the onus of establishing which in any case lies upon the defendant, therefore fails; furthermore, no deduction has to be made from the damages for future loss of earnings to offset any residual earning capacity'.

165. I adopt this approach in relation to the present plaintiff. In my view, the plaintiff's situation in this case cannot be compared to that of the plaintiff in LAU's case; her position falls more nearly into that of the plaintiff in LAKAN's case with regard to mitigation of loss.

166. It is my view that the plaintiff could not find suitable work, and has no real prospect of finding any in the future. She certainly could not travel daily to a job, and I do not find the suggestion that she should seek work at home as realistic, bearing in mind her physical condition and her home environment. Dr. Lau raised the possibility of her working at home, in a factory, or a sheltered workshop but no definite proposals were put forward. I note the extent of the plaintiff's injuries and disabilities, the fact that no rehabilitation was offered to her, and on the evidence I do not feel satisfied that rehabilitation, if available, would be of any value now. I did not find Dr. Lau's evidence to be convincing in relation to prospects for rehabilitation and future employment. I find that the defendant has not proved that the plaintiff failed to mitigate her loss, and I find that there is a 100% loss of future earnings in this case.

The Multiplier

167. Both the plaintiff and the defendant submitted authorities. The plaintiff submitted that 11 was not unreasonable, and that 12 and 13 would not be wrong.

168. The defence submitted that 9 was the appropriate multiplier.

169. Having considered the authorities, I am satisfied that 10 is the proper multiplier in this case, and accordingly the equation is as follows:

$7,700 x 12 x 10 years = $924,000

Pain, suffering and loss of amenities

170. Counsel for the plaintiff submitted that there should be one award for pain, suffering and loss of amenities, and a second award for the extensive and severe scarring/cosmetic disabilities suffered by the plaintiff, that the totality of the injuries and disabilities are such that nothing less than $250,000 would be fair compensation, and that not less than $100,000 would be the appropriate figure for the scarring, although he noted that the plaintiff is not greatly concerned about her facial scars and that most of her scars are not conspicuous. He referred in particular to LI Chim-ying v. LAM Siu-nam and Ho Chi-cheong (3527/1984) and LI Soo-yee v. HO Tak-cheung and others (11720/1982), where scarring attracted separate awards of $80,000 and $100,000 respectively; in those cases the plaintiffs were single women but the scarring was not as extensive as the plaintiff's in this case.

171. On the issue of pain suffering and loss of amenities, counsel referred the Court to the cases of Nazir Begum DIN and anr. v. LEE Kwei-ying, Peggy and anr. (3811/1980) and Dominga Elizabeth Ibironke Lakhan v. WU Wing-tat and anr. (3641/1983) as comparable cases, in the first of which the plaintiff was awarded $170,000 in 1984, and in the second the plaintiff was awarded $200,000 in 1987. He submitted that since the case of LAU Che-ping v. Hoi Kong Ironwares Godown Co. Ltd. (CA) 1988 2 HKLR 650, awards under this head have been increased by some 50%.

172. Counsel referred the court to the case of LAU Ming-wah v. YAU Ka-fai and others (6171/1986), where $350,000 was awarded to a married woman suffering severe scarring and psychological disabilities. He submitted that, taking into account the multiplicity of this plaintiff's injuries and disabilities, it would not be difficult to find that she deserves an award of over $300,000 for general damages.

173. Counsel then referred the court to the categories of disablement formulated in LEE Ting-lam v. LEUNG Kam-ming 1980 HKLR 653, developed and increased in LAU Che-ping submitting that a combined award of $250,000 for pain suffering and loss of amenities and $100,000 for cosmetic disabilities, totalling $350,000 for general damages, would not offend against those categories, bearing in mind that they are merely to assist as a general guide and not as a straightjacket. He submitted that scarring does not fit into the LI Ting-lam categories, nor shoes a case of multiple different injuries and disabilities as suffered by the plaintiff.

174. If the LI Ting-lam categories are to be applied, then this plaintiff's injuries clearly falls within the upper end of substantial injury, worth $180,000 to $225,000 in December, 1987, so that in January, 1990, this should be worth between $198,000 and $270,000, and that the award in this case should be in the region of $230,000 to $250,000. He further submitted that the injuries combined would take the case into the gross disability category worth currently a minimum of $250,000 to a maximum of $408,000.

175. The award should be $250,000 for pain suffering and loss of amenities and $100,000 for cosmetic disability.

176. Counsel for the defendant argued that there should be a global award, to include cosmetic disability. He noted that the plaintiff concedes that Madam Kwok is married, that most of the scars are not conspicuous and that the plaintiff and her husband did not seem to be too troubled by them. He submitted that the scarring did not create a disability or loss in itself since there was no suggestion that the scars per se resulted in a change in the plaintiff's lifestyle or that they prevented her doing anything that she did before the accident.

177. He referred the court to the case of WONG Siu-kwan v. A.G. (2946/1987) and LAU Ming-wah, submitting that a global award is the proper approach.

178. He then submitted a summary of the injuries suffered by the plaintiff, referring to the evidence in relation to these, finally noting that the scarring on the plaintiff's face and legs are matters that the court could properly take into account. He submitted that the scarring of her legs and right foot are not visible when she was wears pants and shoes, and that she normally wore pants before the accident. The facial scars had not caused her embarrassment and did not affect her mobility. He submitted that a 'relatively modest sum would be adequate' and referred the court to CHEN Hsuen-chen v. TAM Wai-chun and anr. (1981) 11 HKLJ 130, where a sum of $2,000 was awarded for cosmetic loss.

179. He submitted that the injuries suffered by the plaintiff put her in the serious injury category in LEE Ting-lam. He made a comparison of the injuries suffered by this plaintiff with those suffered by the plaintiff in Lakban's case, noting that the plaintiff in that case had suffered a severe depressive illness and that the injuries had had a shattering effect on the plaintiff's previous active life style. He submitted that in the Din case the plaintiff had suffered severe psychiatric disability, which affected her marriage and sex life, requiring long term psychiatric treatment, with a devastating effect on her social activities, which placed her injuries in the gross disability category.

180. He referred to CHEUNG Yuk-chun v. Mitsui construction Co. Ltd. (12597/1982), where the injuries fell into the serious injury category. The plaintiff in KWOK Hang-kei v. Quon Hing Conrete Co. Ltd. and others (6409/1988) where the plaintiff who suffered an amputation of the left foot at the ankle, fell into the substantial injury category, with a global award which also took into account the overall cosmetic disability, with an award of $260,000. Counsel submitted that the plaintiff there suffered more serious injuries, and submits that the injuries suffered by the plaintiff in this case warrant a modest award, as in CHEN's case.

181. Counsel submitted that the plaintiff's injuries would place her in the top end of serious injury with an award in the region of $180,000, and that an increment of 5.5%, rather than 10-20%, should be adopted.

182. Having considered the authorities placed before me, I am satisfied that the plaintiff's physical injuries fall within the top end of the serious injury category in LEE Ting-lam v. LEUNG Kam-ming (1980) HKLR p.657 which covers 'cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim', but are not such as to come within the substantial injury category, which emphasizes amputation with a much reduced degree of mobility, or multiple injuries leaving a condition requiring regular treatment for the rest of the plaintiff's life.

183. I have been invited by the plaintiff to increase the award made by 10-20%. The defence have argued that the increase should be 5.5% and referred the court to LAU's case, heard in July 1988. I quote from that case:

    "Updating is principally required because of the fall in the purchasing power of money. This can be, and regularly is, taken care of in each individual judgment by reference to the rate of inflation. There is no need for general interference by this court except that we would remark that it is dangerous to adopt a standard rate of inflation of 10% for each year. That may have been a convenient rate of thumb at one time, but is no longer appropriate in view of the wide variation that have occurred in the last few years."

And again, at page 655, where it is said:

"With regard to the plaintiff in the present instance, like the judge below we have not been referred to any specific comparable case. We are concerned with the position as at December last year, that is seven months ago. We understand that over the year as a whole the rate of inflation was 5.5%. In the circumstances, and again doing the best we can, we assess the damages for pain and suffering a loss of amenities at $175,000."

184. The plaintiff argues that the cosmetic factor should be compensated as a separate head under pain suffering and loss of amenities. The cases of LI Chim-ying and LI Soo-yee are cases where separate awards of $80,000 and $100,000 respectively were made in addition to the main awards of $130,000 and $160,000.

185. The defence submits that a global award is the proper approach in this case. WONG Siu-kwan is a recent example of this approach, where an award of $150,000 was made, and where the judge included a minor cosmetic disability in his calculations.

186. The plaintiff has had to undergo skin graft surgery and has been left with scarring of the foot and legs of an extensive nature, as well as facial scars. As the photographs show, the leg and foot scars are ugly, with the right heel flap being particularly unsightly, forming a large bulbous extrusion on the back of the heel.

187. I am satisfied that a separate award for scarring should be made in this case.

188. I note the recent case of LAU Ming-wah where a global figure of $350,000 was awarded in October 1989. I note the case of LI Chim-ying where an award totalling $230,000 was made in 1985 and LI Soo-yee, where an award of $260,000 was made in 1986 for pain suffering and loss of amenities, including the separate award for cosmetic impairment.

189. In the circumstances of this case, I assess the damage for pain suffering and loss of amenities at $195,000 and for scarring at $75,000, being a total of $270,000.

Payment under Employees Compensation Ordinance Cap. 282 (ECO)

190. The plaintiff has received the sum of $51,000 in periodic payments from her former employers and $22,170 under Section 36D of the Employees Compensation Ordinance.

191. The plaintiff accepts that the $51,000 forms part of the loss of earnings in the plaintiff's claim, and concedes a deduction of 50% from that sum on the basis that if the employer were to establish liability against the defendant to the same extent, he would be entitled to 50% of the compensation he has paid against the defendant.

192. The sum of $22,170 paid by the employer to the Hong Kong Government for the denture and medical expenses pursuant to Section 36D of the Employees Compensation Ordinance has not been included in the claim for special damages because it was not paid by the plaintiff. The plaintiff argues that this is part of the ECO award, and cannot be deducted from the plaintiff's damages.

193. The plaintiff has an outstanding Section 9 claim under the ECO which will be pursued once the Labour Department Medical assessment is known. The plaintiff submits that that claim is to compensate for 'loss of earning capacity' and is not the same as an award for 'pain, suffering and loss of amenities' and should not be deducted.

194. The plaintiff submits that Section 25(3) does not apply, since the employee has notified the employer of her intention to institute proceedings under Section 25(1).

195. Counsel for the defence argues that S.25(1) provides that the court is to have regard to such sums awarded under the ECO, and that this should be interpreted to entitle the defendant to deduct such sums paid or payable by the plaintiff's employer, noting that sub-section (1)(b) provides that an employer may seek an 'indemnity' from such third person for such sums required to be paid by the employer to the employee under the ordinance, and he referred the court to CHAN Yuk-sum v. WONG Pai-kwan and anr. (1973) HKLR 250 which deals with an almost identical situation.

I quote from that case at pages 255-256: "It is obvious that the principle is that a person should not be entitled to recover damages for the same injury more than once."

And at pages 256-257:

"But the section does not go so far as to state that any award of compensation made under the Ordinance must be deducted from or set off against any sum of damages payable in an action brought by 'the workman' against a third party: the Court is only to 'have regard to the amount' of such award of compensation."

"As I have said this is not a case where damages are in effect being claimed twice for the same injury."

"It could happen that some deduction would have to be made. Supposing for example as was the case here, the employer of the workman paid the funeral expenses of the deceased. And further suppose that funeral expenses were claimed under the Law Reform and not under the Fatal Accidents Ordinance: in that case any amount so paid would have to be set off against an award under the Law Reform Ordinance."

196. That case was under the Workmen's Compensation Ordinance, Cap.282, S.25(1), but the same principle is incorporated in the new S.25(1).

197. The defendant has been found to be 50% liable to the plaintiff for the losses ensuing from this accident. I accept the plaintiff's submission, that 50% should be subtracted after deduction of the 50% contributory negligence, but I am of the view that in principle it should be 50% of the whole sum paid by the employer. Whatever the outcome of the claim under the ECO, the defendant is liable for 50%. However, the claim for the denture and medical expenses under S.36D has not been agreed or proved and I therefore subtract 50% of the $51,000 from the award after deduction of the contributory negligence.

Conclusion

198. In conclusion, the award of damages is as follows:

Pre-trial loss of earnings	$362,250
Loss of future earnings	$924,000
Pain, suffering and loss of amenities  ($195,000 and $75,000)	$270,000
Special damages as agreed	$8,610
TOTAL	$1,564,860
Less 50% for contributory negligenc	$782,430
	$782,430
Less $25,500, being 50% of ECO payment under S.10	$25,500
	$756,930
	========

199. There will be interest on the pre-trial loss of earnings and the special damages at 5% from the date of service of the writ, and 2% on the general damages as from the date of the accident. There will be an order nisi for costs to the plaintiff together with the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations. There will be a certificate for counsel.