LI CHEONG KWOK v. UENG TEH CHI FRANCIS

HCPI 1020/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1020 OF 1999

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J U D G M E N T

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1. These proceedings arise out of a road traffic accident which occurred on 19 October 1997 when the plaintiff, then aged 37, was, in the course of his employment, driving a container tractor along Tuen Mun Highway. The defendant was driving his car in the same direction when his front tyre burst, causing him to veer to the left and force the plaintiff to drive off the road and his vehicle to overturn with the plaintiff trapped in the driver's compartment. He was freed by the emergency services and taken to hospital, where he remained until discharged on 23 January 1998. Judgment was entered for the plaintiff against the defendant on 19 June 2000 for 85% of damages to be assessed.

The plaintiff's injuries

2. The plaintiff suffered extensive and severe injuries in the accident, and it is as much a tribute to the skill of the hospital staff at Tuen Mun Hospital, where he was taken, as to his own resilience, that he has recovered to the extent that he has. The principal injury was to his face and head where he sustained a fracture of the right orbital roof, part of the bony cavity surrounding the right eye, and the right frontal bone, bifrontal subarachnoid haemorrhage with generalised cerebral oedema, bilateral retinal haemorrhage and left inferior homonymous quadrianopia, and fracture of his central incisors with a deep laceration over the symphysis region of the mandible. He also fractured three ribs on the left side, his left femur and right fibula.

3. The plaintiff was unconscious when taken to hospital and remained so for at least 5 to 6 days, but it seems to have been about another month before he was again fully aware of his surroundings and his situation, and he was kept in the intensive care unit until 4 December 1997. He also suffered prolonged post traumatic amnesia. An emergency operation was performed on the day of his admission to relieve inter-cranial pressure and to suture the facial laceration, and his fractured femur and fibula were operated on with nail fixation and plating respectively on 20 October. He developed wound infection over the latter operation sites which had to be treated by debridement and skin grafts, and his treatment was further complicated by a deep vein thrombosis in the left leg which was treated with anticoagulant therapy. The retinal damage was treated by laser therapy on 12 January 1998.

4. The plaintiff was discharged from hospital on 23 January 1998 walking with the aid of a stick, and continued follow-up in orthopaedic, neurological and opthalmological outpatient clinics, as well as physiotherapy and occupational therapy treatment for about two years.

Present disabilities

5. The plaintiff's present disabilities which are not in dispute fall into two parts, those from his facial injuries and those from the orthopaedic injuries. As a result of the former, the first major damage was to his eyes, for which he received laser treatment. This appears to have been largely successful, with little reduction in visual acuity but some restriction to visual field in the right eye which the experts estimate to be about a 20% permanent disability in that eye, although neither say that this is such as would prevent him from driving again. The plaintiff himself is aware that his vision is not as good as before. The second major disability is his complete loss of sense of smell and related partial loss of taste. He also lost three teeth, two of which have been replaced by a bridge, and it is expected that he can similarly have the other replaced. The facial fractures appear to have healed satisfactorily, leaving him with scarring.

6. The orthopaedic injuries, and the consequential wound infections and deep vein thrombosis, have resulted in permanent swelling in his left leg, the left thigh being at least 9 cm larger than the right, with pain on prolonged walking and in certain weather. He also says that his right ankle swells after sitting for some time, and that he has mild chest pain on coughing or taking a deep breath. Both parties' doctors agree that he has made a remarkable recovery from these injuries and assess his disability in this area at no more than 3%.

7. The third, and major, part of his continuing disability to be considered is that resulting from the injury to his brain, and in particular, to the frontal lobe. It is not in dispute that the plaintiff suffered a severe traumatic brain injury with coma lasting at least 5 to 6 days and post-traumatic amnesia. It is also not in dispute that he still suffers neuropsychological and psychiatric impairments as a result of those injuries. The only question I have to determine is the extent of them. The plaintiff himself complains of headaches, dizziness and nausea, loss of memory and power of concentration, and problems in learning, causing lack of self-confidence affecting his social skills. He also has at times incontinence of urine, and partial impotency and premature ejaculation affecting his sexual relationship with his wife. His personality has changed, causing him to be short tempered, irritable and temperamental with his family, and moody and depressed.

8. The plaintiff's case in this is supported by a number of medical reports, and evidence from Dr Timothy Law, a neuropsychologist, whose diagnoses are, inter alia, post traumatic stress disorder (PTSD), frontal lobe syndrome, executive function disorders and major depression. He estimates the plaintiff to have permanent impairment of 58% with a loss of earning capacity of between 70% and 90%, depending on whether he receives appropriate treatment. Both the defendant's medical experts who gave evidence, Dr Chung See-yuen and Dr Chan Kin Yuen, Calais, put the plaintiff's present disability at 30% and disagree with a number of Dr Law's findings, in particular that of PTSD, and the severity of the others.

9. In respect of PTSD, I have to say at the outset that I agree with the defendant's experts. It is clear both from their reports, as well as the accepted literature on the subject, apparently relied on by Dr Law, that there has to be first of all a traumatic event, the recollection of which triggers the symptoms, and second, those symptoms, which must include characteristically flashbacks and nightmares re-experiencing the event. Here the plaintiff lost consciousness at the time of the accident and had a lengthy period of amnesia following that, and little awareness as a result of the event itself. Further, there is no evidence that he suffers from any flashbacks, nightmares about it or other symptoms referable only to PTSD, those he does display being equally accountable by other neuro-behavioural deficits, from which he certainly does suffer. It is significant that none of the psychiatrists consider PTSD is present, and Dr Law concedes that it is a psychiatric condition. There is no evidence either of Dr Law's contention that there is PTSD as a result of his experiences in hospital. Neither am I satisfied that the plaintiff suffers from the major depression that Dr Law diagnoses. This finding is not supported by any of the other reports, except, to some extent, that of Dr Fali Shroff and that of Dr K. Singer. Dr Chung in particular points out that the symptoms of major depression, namely loss of appetite and weight, or feelings of guilt, are not present, merely an understandable sadness as a result of his other problems, and a degree of apathy. On the evidence before me I consider that any depression is only mild.

10. What then is the plaintiff now suffering from? The doctors are agreed that he has impairment of function as a result of his brain injury. He has undergone a battery of tests and examinations and it is apparent that he has a number of specific disorders, some of which can be improved with treatment. Dr Chan's tests, which appear to me to be very much more useful, and better documented than those of Dr Law, show that he has a low IQ at the top end of the borderline impairment range, and lower than before the accident, and a memory function within the lower end of average range, although with lower ability on verbal memory, visual reproduction and associate learning, which require specific skills for new learning. He was also of the view from other tests that there is a mild degree of impairment with respect to mental vigilance, a moderate degree with respect to non-verbal executive function, problems with visuo-perceptual organisation, and other indications of mild to moderate impairment involving the frontal-temporal region of the brain. Dr Chung agrees that he is suffering from mild to moderate impairment of his cognitive functions including intelligence, memory, language, problems solving, attention and concentration, judgment, executive function and social abilities. He is also of the view that he suffers from personality change in that he lacks drive, is no longer interested in family activities, is irritable and bad-tempered and lacks confidence in meeting people.

11. Some of this is borne out by the plaintiff's own evidence in court. But it is also apparent that there has been some improvement since these doctors all examined him. He answered questions clearly and sensibly, although he had a tendency to be long-winded and repeat himself, and from his evidence it is clear that his outlook on life is improved. He socializes to some extent, and he has made the effort of going out and trying to look for work by attending interviews with employers to whom he was referred by the Labour Department. It is therefore clear that he is not now, and possibly never was, impaired to the extent that Dr Law maintains in his report. In taking his assessments from tables in the Diagnostic and Statistical Manual (DSM-IV), he has, in my view, taken far too high a figure. In his assessment of mental status, he has put the percentage impairment at 27%, which, in the table from which this is derived, states that this is for an impairment which requires direction and supervision of daily living activities. This is quite apparently not the case here, where the plaintiff is well able to look after himself without assistance, to travel independently, and to make cognitive decisions, in particular about his ability to do certain work. The category between 1% to 14 % describes him almost exactly: namely that impairment exists, but ability remains to perform satisfactorily most activities of daily living. Dr Chan puts him at about 15% on this scale, and I accept that. He also puts him at the same level for social and interpersonal daily living functions, which is described as mild to moderate, and I also accept this.

12. However, they are all agreed that the plaintiff does suffer some impairment, and that is a result of the injury to the frontal lobe of his brain which is likely to improve to a modest degree after further treatment. They are also agreed that this impairment prevents him from returning to his pre-accident employment as a container tractor driver, and will allow him only to engage in some employment which does not require higher mental functions, or learning anything but the most straightforward of tasks. It is even unlikely that he could operate as a messenger as his ability to take directions, or to find his way to an unfamiliar area, is also affected.

PSLA

13. While the plaintiff has suffered very serious injuries in this accident, as I have observed above he has made a remarkable recovery. He can lead an independent life and is not completely precluded from enjoying normal pursuits. He was in hospital for over three months undergoing a series of painful operations, some of which were during the time he was mercifully unconscious. He has had a very lengthy course of follow up treatments and has been left with permanent disability from the injuries to his legs and face to some extent, although no serious loss of function, and to a large extent from the damage to his brain, which the doctors put at a minimum of 30%. Mr Shum, for the plaintiff, submits that this puts it in the category of gross disability or disaster. I regret that I do not agree. From the number of cases to which I have been referred it is apparent that that category relates to those with far more serious permanent injuries than the plaintiff suffers from here. Mr Ramanathan has suggested that this comes more within the serious to substantial injury. I tend to agree that this is the correct region to place this case, and using the categories as guidelines only, as they are intended, I consider a proper figure here to be $750,000.00.

Loss of earnings

14. The plaintiff, at the time of the accident, was paid according to the number of containers he delivered, being paid $150.00 for a single container, or $225.00 for two. There is evidence of his income for the months of June to September 1996 from his bank book, and from October 1996 to September 1997 from his employers, which lists the earnings for those months. However, these include four months when he did not work full time as a result of the illness of his brother, and Mr Ramanathan is content that I disregard those months. The total earned during this period was $287,180.50, which gives an average for the 12 full months worked, to the end of September 1997, of $23,931.70, which for the purposes of this assessment I will round up to $23,932.00 and take as his average monthly earnings. Mr Shum has urged me to take only the last six months earnings which gives a slightly higher figure, but, in the absence of any evidence that there was any change in the earnings rate over the longer period, I consider that this gives a more accurate picture.

15. A far more difficult question is what the plaintiff could earn now. It is not in dispute that his choice of employment is now severely limited to low paid sedentary work. He has already applied for three jobs through the Labour Department, none of which he was offered, although he was given a short trial with one. I agree with Mr Shum that I must look not only at what he is physically capable of doing, but the realistic expectation that he will secure such employment. In a competitive society such as ours, where there is already a level of unemployment, any employer will want to choose his employees from those most able and competent to do the job required. While it would be nice to think that there are a large number of charitable employers who will select those with disabilities to give them a chance, in reality such employers are likely to be few and far between, and a man such as the plaintiff has not only his own disability to contend with, but the disadvantage he will suffer in competing against those without disability. Having said that, I also take into account the character of the plaintiff himself. He has already shown that he wishes to work again and has taken steps to try to find employment. If he takes advantage of further psychiatric and psychological treatment he will, I am sure, have even more drive and determination to do something within his capabilities. I am not convinced that this will be within the rates of pay that Mr Ramanathan has pointed out to me in the government statistics, when he suggests $6,500.00 a month as a likely income, nor that he will necessarily be able to obtain anything that is not part time.

16. I accordingly assess the amount I consider the plaintiff can earn at $4500.00 a month, and his continuing loss of earnings $19,432.00 a month ($23,932.00 - $4,500.00). In doing so I take into account his loss of earning capacity, which I do not consider should be quantified separately. The principal enunciated in Moeliker v. Reyrolle & Co. Ltd [1977] 1 WLR 132, and as since clarified and followed, is that an award for loss of earning capacity should be made where a plaintiff is still in employment, but there is a real risk of him losing that employment and being thrown on to the job market with a disability. It is clear that this was not intended to overlap with an award for loss of earnings, but was to compensate for a risk of future unemployment. Where an award is made as here for assessed loss of earnings, such an award is, in my view, inappropriate. As Mr Ramanathan has conceded that the 3 years sick leave suggested by Dr Chung is appropriate, pre-trial loss of earnings will be $958,712.00 ($23,932.00 x 36 + $19,432.00 x 5).

17. The plaintiff is now aged 41, having been 37 at the date of the accident. Mr Shum submits that a multiplier of 12 is appropriate, and has referred me to a number of cases supporting this. For the defendant Mr Ramanathan urges a lower figure on the basis that the plaintiff would not continue as a lorry driver past the age of 55. I am not prepared to take judicial notice of this in the absence of any evidence and I concur with the view of Mr Shum that 12 is appropriate.

18. The award for future loss of earnings is accordingly $2,798,208.00 ($19,432.00 x 12 x 12).

19. There must also be an award for loss of mandatory provident fund payments which would otherwise have been made by the plaintiff's employer. This will be $139,910.40 ($19,432.00 x 5% x 12 x 12).

Future medical treatment

20. Dr Law has set out in his report an extensive schedule of treatment he recommends which comes to a total of $322,00.00. However, as I have found above, I do not agree with a number of his findings, or the extent of the plaintiff's disabilities which he claims. Dr Chan and Dr Chung on the other hand seem to suggest a much more conservative regime of treatment, which I find more sensible and likely to have the desired result. This, if calculated on the basis that it will be in the private sector, which I also consider sensible given the comparative ease of arrangement without delays, would cost $154,300.00. In addition to this he will incur costs of dental treatment which, without the subgingival curettage, which Professor Tideman considers unnecessary, would amount to $17,000.00, and a similar replacement every 10 years. Given the plaintiff's present age I will allow the cost of one set now and two replacements, being $51,000.00 plus two check ups at $500.00, making a total of $52,000.00, and with the medical expenses allowed above, $206,000.00.

Chinese medicine and tonic food

21. The sum claimed for this by the plaintiff in his witness statement is "about" $29,970.00. I have seen no documentary evidence of this expense, but I consider that it is reasonable that some at least should have been incurred. I will allow a sum of $15,000.00.

Other special damages

22. These have been agreed at $6,528.00 for hospital and medical expenses and $12,613.80 for travelling expenses.

Summary

General damages
Pain suffering and loss of amenities	$ 750,000.00
Loss of future earnings	$2,798,208.00
Future medical expenses	$ 206,000.00
Loss of MPF	$ 139,910.40
Special damages
Pre-trial loss of earnings	$ 958,712.00
Other expenses	$ 34,141.80
	$4,886,972.20
Less
15% contributory negligence	$ 733,045.83
Employees compensation received	$1,701,156.75
	$2,452,769.62
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Interest

23. There will be interest on general damages at 2% per annum from the date of writ to date hereof. As to special damages, it has been conceded by Mr Shum on behalf of the plaintiff that, interest having been included in the ECC payment in April 2000, further interest on special damages should only be payable from that date. I accordingly order that there be interest on special damages from 1 May 2000 to date at 6.25% per annum.

Costs

24. There will also be an order nisi that the defendant pay the plaintiff's costs of this action to be taxed.