LEE WAI KIN v. CHENG HON KIT JACKER

HCPI 1488/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1488 OF 2000

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J U D G M E N T

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1. The plaintiff was a sales manager of a trading company responsible for promoting the sale of Chinese medicine in the South China region including Hong Kong and Macau.

2. At about 1:25 a.m. on 21st June 1998, he was sitting in the front seat of a private car driven by the defendant. When the car was driven near Lam Tsuen, Tai Po, the defendant drove negligently and hit two bollard lights erected on a kerbed island in the middle of the road. The car then surged forward to the offside and hit the guardrails and a lamp post on the offside of the road. As a result the plaintiff was injured.

3. On 19th March, 2001, Master Kwan entered interlocutory judgment on liability under Order 14 rule 3 of the Rules of the High Court. The case is now for assessment of damages.

The Plaintiff's Evidence

4. The plaintiff's first witness statement dated 21st June, 2001 was admitted as his evidence in chief. He had a secondary education up to form 3. He started working at the age of 17 in a metal factory. He was later promoted to be a foreman. Three years later, he went to study in the Vocational Training Institution for a one year course on mechanics and electricity. He then worked for a construction company as a machine controller controlling the operation of tower cranes. Having worked for 2 to 3 years, he changed to work as a sales representative in a trading company selling Chinese medicine. About 2 years later, he was promoted to be a sales manager.

5. As a sales representative, he was required to present products to customers. As a manager, he had to deal with his sales agents and enquiries from customers. His job required interpersonal skills.

6. After the accident, he was initially admitted into the Nethersole Hospital and was transferred to the Intensive Care Unit of the Prince of Wales Hospital ("PWH"). He remained unconscious for 4 days until 24th June, 1998 and was then transferred to the General Ward. On 3rd July, 1998 he was transferred to the Cheshire Home for convalescence and was discharged on 4th August, 1998. He continued to receive physiotherapy and occupational therapy. He also attended follow up treatment at the South Kwai Chung Jockey Club Clinic until the end of 2000. He also had speech therapy at the PWH for 1 year as he had speech problem. At the time of his first statement, he still had to attend follow up treatments at the Brain Surgeon Department of the PWH.

7. He found his four limbs very weak. He also consulted Chinese herbalist and doctors and received acupuncture and Chinese physiotherapy during the period from 9th March, 1999 to 10th May, 1999 and incurred $31,800.00.

8. He said that after the accident, he always got headache that initially could not be relieved by medicine. He found his 4 limbs very weak. For the first few months after the accident, he had to rely on wheelchair and felt very low of himself. When he made the first statement, he still had headache and dizziness about once a week. The pain would last for several hours and he had to combat it with medicine.

9. He also said that his thinking, comprehension and reaction abilities and memory have worsened. He could only speak slowly and could not express himself clearly and with organization. He had no confidence and always got tired. He was not enthusiastic in doing anything. He would feel headache when he tried to think. He could not engage in mahjong, snooker and mind-using games that were his leisure activities prior to the accident. He could only listen to music and watch films and video CDs at his spare time.

10. He also suffered from psychological and mental disturbance. He often could not sleep because of headache and always had nightmare. He used to be an easy going person. As a result of the accident, he needed long rest and had restricted his social life. He became ill tempered and scolded people unreasonably. He also lost his girl friend.

11. He did not want to go to crowded places and always felt that people gave him a strange look. Whenever people looked at him, he would feel anxious.

12. Prior to the accident, he was earning $16,000.00 per month as a sales manager. He also had year-end double pay. He could not resume work after the accident because of his worsened mental conditions and his frequent headache. It was not until April, 2000 that he felt his conditions were good enough for him to find a job.

13. He worked as a part-time driver from may, 2000. The working hours were form 9:00 a.m. to 7:00 p.m. He was responsible for arranging and delivering magazines with a light goods vehicle. Sometimes there was work for him for 10 odd days in a month and sometimes less then 10 days. On the days when work was available, he would earn a daily wage of $280.00. However because of the weight of the magazines, the long hours of work, the concentration required in driving and his frequent headache, he gave up the job in January, 2001.

14. He longed for resuming his previous job, but he said his mental condition was not as good as before and he got very emotional and unable to concentrate himself. Therefore he had not found a suitable job up to the time of his first statement.

15. He made a supplemental witness statement dated 15th September, 2001 which was also admitted as his evidence in chief. In the supplemental statement, he elaborated on his pre-accident job as a sales manager. He had 2 supervisors who were the shareholders of the company. He had their trust in the management of the business.

16. The business was in the wholesale of healthy food. He was responsible for managing the business in Southern Greater China including Hong Kong and Macau. When his supervisors were not in Hong Kong, he had to manage the business of the company. As a manager, he had to review documents submitted by his colleagues before passing them onto his supervisors for approval. The accounting officer would also submit the company account for him to review.

17. His supervisors had to deal with the medicine and healthy food factories in China and he was responsible for the sale of the goods. Goods were frequently imported in bulk and he had to supervise two employees who would divide and pack them into smaller portions for sale. He had several salesmen under his charge. In addition, he would also contact his clients by phone to follow up the progress of sales. When his salesmen encountered difficult clients, he would step in to solve the problems.

18. In his oral evidence in chief, he repeated his problem of headache when he thought of complicated matters and his difficulty in expressing himself. He said that he had looked for the post of a manager as well as a salesman in the type of business he had been engaged in before the accident, but without success. He attributed his failure to his having forgotten most of the things he had learnt previously and his poor ability in communicating with others. He also said that he was comparatively slower than other people in speech and walking.

19. He also revealed that he had started working for the company of Mr. Yeung Wai Kwong PW2 since October, 2001 as a salesman. Yeung's business is in Chinese medicine and healthy foods. Yeung used to be a partner of the business that he had worked for before the accident, but had left it before he joined it. He knew Yeung all along and Yeung asked him to work for Yeung's business as Yeung wanted to open a new branch. He agreed and was employed by Yeung as a salesman.

20. As a salesperson in Yeung's company, he was responsible for the same tasks as when he was a salesman in the previous business. He had to perform outdoor sales work, contact customers, promote new products, read documents, give quotation for new products, bargain with customers and collect proceeds. He would drive a car occasionally. He did so for private and business purposes.

21. In the course of his recovery, he had received acupuncture treatment and took Chinese medicine. He at one time said that he did not think the acupuncture was good to him, but later said that it helped him medically. He had also taken tonic food like nests of birds, uterus of frogs, and brains of pigs and fishes. However, he did not think that such made him good and he took them just to please his family members.

22. In cross-examination, he admitted that the shareholder and supervisor of the previous business Mr. Kong Wai Ping had invited him to go back to the previous business in the beginning of 2001. Kong did not specifically say what post would be offered to him. He said he declined the offer because of his mental state, family situation and a feeling of some daily pressure. He also said that if he should resume his previous job, he had to face the old customers who had enquired about his injuries and he did not know how to explain himself to these people. In re-examination, he said that Kong had told him that he had to learn everything again. He also said that if he should have joined Kong, he would be paid $12,000.00 to $14,000.00 per month.

23. It seems that he was quite uneasy when questioned about why he had turned down Kong's offer and he did not give any clear and convincing reason why he did so.

24. Also in cross-examination, he said that he had to attend social functions with customers, but such was done in the presence of Yeung and was less often than in the previous business. He also said that he was contacting with about 1/3 of his previous customers on behalf of his new employer.

25. On the whole, save a few complaints of nervousness in giving evidence, the plaintiff was able to deal with all the questions put to him. Though his speech was slower than that of ordinary people, he was able to respond to most questions instantly. There were only a few occasions when he required the question to be repeated. He also did not appear to have any big problem in recalling things though he repeatedly said that his memory was poor. He also demonstrated his aspiration to become a sales manager again though he was not sure if he could achieve that. However, he did show that he would try hard to reach this target.

Kong Wai Ping

26. The shareholder of the previous employer Mr. Kong Wai Ping had given a witness statement. He was however not called and his statement was not admitted as part of the evidence.

PW2 Yeung Wai Kwong

27. Mr. Yeung has given a witness statement dated 24th February, 2002 which was admitted as his evidence in chief. He said in his statement that in September, 2001, he learnt that the plaintiff had recovered from his injury. He knew that the plaintiff had performed well in his work and he was honest and diligent. Therefore he was happy to employ the plaintiff as a salesman. The plaintiff started working for him on about 1st October, 2001 and his duties were to promote products to dispensaries in Hong Kong and to collect payments from customers.

28. He further said that the plaintiff's basic salary was at $6,000.00 per month with yearend double pay. If his sales value in a month should reach $50,000.00 or above, he would be paid a commission at 3% of the sales value. However, the plaintiff was only to sell about $30,000.00 of goods every month and he had not earned any commission. Apart from these, there was no other allowance or benefit.

29. In paragraph 7 of his statement, Yeung said that the plaintiff was very diligent in learning in attempting to resume working. But the plaintiff's comprehension ability and memory were not good. He also saw the plaintiff making notes of the details of his work to make sure that he would not forget about them. He also opined that the plaintiff's ability of expression was not good and his speech was slower than that of ordinary people.

30. In his oral evidence, he contradicted his witness statement as well as the evidence of the plaintiff. Contrary to the plaintiff's case, Yeung said it was the plaintiff who approached him for a salesman job. He considered the request for 4 to 5 months before October, 2001. He also said that the plaintiff's performance was very bad. The plaintiff was unable to find customers. He always took leave. Sometimes he would say that he was unable to wake up, sometimes he just disappeared. He was a different person from the one Yeung knew before.

31. Yeung also said that he had considered dismissing the plaintiff because of bad performance. He did not think that he had any other post that could fulfill. He also said that the plaintiff was lazy. However, on the next day, he suddenly said that he would reconsider whether to dismiss the plaintiff, but he did not give any reason for his change of mind.

32. On whether he knew the purpose of the hearing, he said that he knew that he had to come and tell the Court how the plaintiff performed in his employment, but did not know that it was an assessment of damages for the plaintiff's injury. Regarding his witness statement, he said that paragraph 7 was incorrect.

33. In re-examination, he said that signed the witness statement just to prove that the plaintiff had worked for him.

The Agreed Medical Reports

34. There are 3 agreed medical reports supplied by doctors of the PWH. They are as follows: -

(i) Report dated 7th March, 2001 by Dr. L. K. Chan of the Division of Neurosurgery, Department of Surgery. The contents of the report are:

"The above named patient was admitted on 21.6.1998 after a traffic accident and after being initially seen at Alice Ho Miu Ling Nethersole Hospital (AHNH). He was intubated in AHNH. On arrival at Prince of Wales Hospital, he showed no eye opening, produced incomprehensible sound, and was able to Iocalise pain. Pupils were equal and reactive. He was haemodynamically stable. Radiological examination showed diffuse brain injury but no skull fracture. ICP catheter was inserted on the same day for monitoring and he was then observed in our Intensive Care Unit (ICU). Subsequently his conscious level gradually improved and the ICP catheter was taken out 2 days later. He left the ICU on 24/6/1998 and was transferred to our convalescence hospital on 3/7/1998 for further rehabilitation.

In Cheshire Home, he continued to show progress and was discharged home on 4.8.1998. On follow-up on 3.11.1999, he was bale to walk unaided, produced slow speech, but still unable to work."

(ii) Report dated 10th April, 2000 by Dr. Wong Hoi Tung of the same Division. The contents are:

"This gentleman had traffic accident on 21.6.1998 and was firstly transported to Accident and Emergency Department (AED) of Alice Ho MiuLing Nethersole Hospital. He was comatose with Glasgow Coma Scale (GCS) 8/15. Blood pressure and pulse were stable. After initial stabilization with intubation, he was transferred to our hospital for further care.

On arrival to our Accident and Emergency Department, his BP was 162/85, localize to pain. Pupils were equal and reactive. There were no obvious external would over the body. Chest/abdomen/pelvic were normal. Urgent radiology did not show obvious bony fracture or severe visceral injury. Urgent CT brain and cervical spine showed diffuse axonal brain injury with few spots of petechial haemorrhage. Cervical spine was normal.

Emergency operation was arranged for inserting intracranial pressure catheter monitoring. The patient required intensive care and was transferred to Intensive Care Unit (ICU).

He was taken care in Intensive Care Unit from 21.6.98 to 24.6.98. His intracranial presure was not high. On further management in ward, he gradually recovered. Repeat CT brain showed no further deterioration. He was transferred to rehabilitation hospital on 3.7.98 with Glasgow Coma Scale E4V5M5-6 (Localize pain to obey command) and generalize weak limbs power.

He was put on intensive rehabilitation program. Subsequent follow up showed progressive improvement both mentally and physically. Functional motor assessment and cognitive status examination showed full score. The latest follow up was 3.11.99, and he was able to walk unaided but with slow speech. No convulsion or headache were noted. However he is still not able to go back work yet.

In summary, he got diffuse brain injury with good recovery. The slowness of speech may be permanent. There was mention that he got mild depressed mood and lack of confidence in going back to work. The overall prognosis should be reasonably good."

(iii) Report dated 27th November, 2000 by Dr. L. Y. Ho of the same Division. The contents are:

"Mr. Lee was a road traffic accident victim who sustained head injury on 21.6.1998. He was a front seat passenger and was comatous after the accident with initial Glasgow Coma Score (GCS) of 8/15.

In examination, there was no external wounds and he was hemodynamically stable. Urgent Computed Tomography was done showing that there was diffuse injury of the brain. Intra-cerebral pressure (ICP) monitoring catheter was inserted and the ICP was not high. There was no other associated injury.

His conscious level gradually improved after 3 days of intensive care and monitoring. On 3.7.98, he was transferred to Cheshire Home, our convalescent hospital, for further rehabilitation.

He is not being followed up in our clinic. We last saw him on 4.10.2000 while he was looking for jobs and complained of poor concentration. Occupational therapist was referred for High Cortical Function assessment.

Diagnosis: severe head injury.

Permanent Disability: best settled in Medical Assessment Board."

35. In addition, there are certificates from the Occupational Therapy Department and Physiotherapy Department of the PWH certifying that the plaintiff had attended these Departments for 27 and 30 treatments respectively.

The Plaintiff's Expert Dr. Yu Yuk Ling

36. In addition to the above, the plaintiff has also called two experts to testify for him. They are Dr. Yu Yuk Ling, a neurologist and Dr. Chung See Yuen, a psychiatrist.

37. Dr. Yu had read the medical reports by Dr. L. K. Chan and Dr. Wong Hoi Tung. He had also examined the plaintiff on 26th July, 2000. He made a report dated 31st July, 2000 and a supplementary report dated 28th August, 2001. The supplementary report mainly commented on the report by one of the defendant's experts Dr. Edmund Woo. The 2 reports have been admitted as his evidence in chief.

38. In his first report, Dr. Yu recorded the plaintiff's complaints which have been referred to by the plaintiff in his evidence. He performed the Mini-Mental State Examination (MMSE) on the plaintiff who achieved a full score of 30. He also found that the plaintiff's cranial nerves, motor functions in the upper and lower limbs, gait, tendon reflexes and sensations were normal. He did not discover dysarthria (difficulty in articulating words caused by disease of the central nervous system).

39. In Dr. Yu's opinion, the plaintiff had suffered a severe head injury in the accident. On the plaintiff's achievement in the MMSE, Dr. Yu said that the test was designed to identify patients suffering from global cognitive impairment such as found in dementia. A full score by a patient means only that he was unlikely to be suffering from dementia. However, the MMSE was not sensitive for detection of subtle and patchy cognitive impairment. Judging from the severity of the head injury and the plaintiff's symptoms, Dr. Yu concluded that the plaintiff probably had impairment of higher mental functions.

40. Dr. Yu further opined that since the injury had taken place 25 months prior to his examination, the impairments were permanent and no further treatment would be able to reverse the deficits.

41. On employability, Dr. Yu was of the view that the plaintiff should be able to resume his pre-accident employment in trading, but his work capacity would be mildly compromised. In his supplemental report, he estimated the plaintiff's loss of earning capacity at 15% taking into account of the facts that the plaintiff used to work as a sales supervisor supervising a team of salesmen, was in charge of sales matter in Hong Kong, Macau and Taiwan and sold medicine which required some skills and knowledge.

42. Though the plaintiff had not suffered any seizure, Dr. Yu estimated that he was at risk of developing post-traumatic epilepsy. In his supplemental report, he calculated the plaintiff's risk in developing seizures in the next 27 years at 9.7%. In doing his calculation, he relied on a research paper by Annegers et al 1998 published in The New England Journal of Medicine.

43. In his first report, Dr. Yu also suggested that the plaintiff should receive regular medical consultations at 6-monthly intervals to June, 2003 and then on a need basis. He said that he could continue the follow up at the PWH as the doctors there deem it necessary. Alternatively, he could have follow up in the private sector. He said that the purpose of such consultation was to check the plaintiff's progress, look for cognitive and behavioral changes and other complications and to provide prompt remedies whenever appropriate. This suggestion seems to contradict his earlier opinion that the plaintiff's impairments were permanent and no further treatment would be able to reverse the deficits. Furthermore, if the doctors at the PWH do not deem it necessary for the plaintiff to have follow up treatment, I cannot see any reason why the plaintiff should incur the trouble of seeking such follow up privately.

44. In his oral evidence, Dr. Yu said that the plaintiff's supplemental witness statement gave much more details of his previous job and a wider dimension of his previous responsibility than what he had been given to understand. The plaintiff had managerial responsibility, had to look at balance sheet and promote products. These require clear and quick thinking. Dr. Yu said that the plaintiff's memory was slightly impaired and his speech was slower. Dr. Yu further said that he would need a good system of expressing ideas and required good inter personal skill and patience. Dr. Yu further observed that the plaintiff did not get on well with his colleagues and it seemed that he would feel tire easily. He therefore concluded that it was difficult for the plaintiff to resume his role as a sales manager.

45. On the need to have continued follow up, Dr. Yu added in his oral evidence that the plaintiff may develop complications like post-traumatic complication. He thus suggested that it was prudent to have follow up at 5 years from the date of the accident. His further evidence showed that he was referring to the increased risk of the plaintiff in developing seizure as documented in the Annegers research paper.

46. In cross-examination, Dr. Yu confirmed that the plaintiff had told him in the examination that his previous worked as a sales manager and had to administer an office and godown and to supervise sales people. Dr. Yu said that from the plaintiff's supplemental statement, he had a lot of responsibilities including reading balance sheet and account, negotiating with major clients and supervise sales staff. Dr. Yu opined that such job needed a mental function that is above average and he was not sure if the plaintiff had the energy and drive that he had before the accident. In further cross-examination, Dr. Yu confirmed that the matter that had particularly altered his view on the plaintiff's employability as a sales manager was the need to scrutinize account.

The Plaintiff's Expert Dr. Chung See Yuen

47. Dr. Chung had read the medical reports by Dr. L. K. Chan and Dr. Wong Hoi Tung of PWH. He had also interviewed the plaintiff on 18th July, 2000 for 2 hours and 5 minutes. He made a report dated 25th July, 2000. He interviewed the plaintiff again on 22nd January, 2002 for 1 hour and 10 minutes and made read the supplemental witness statement of the plaintiff, the witness statement of Kong Wai Ping, the medical reports by Dr. Ho Pang Nin Peter and Dr. Yu Yuk Ling. He then made a further report dated 29th January, 2002. Both reports have been admitted as his evidence in chief.

48. In his first report, Dr. Chung recorded the plaintiff's complaints that he had which have been referred to by the plaintiff in his evidence. In addition, the plaintiff also complained that his left upper and lower limbs were clumsy and he had difficulty in walking downstairs. His sleep was fitful and he woke up a few times a night. He had low esteem.

49. In the examination, Dr. Chung found that the plaintiff's comprehension was impaired and often asked the interviewer to repeat and explain the question before he could understand it. His speech was not fluent and was slightly slow. His concentration was not affected and his memory function was satisfactory as he was able to give the history of the accident satisfactorily save for the first few months after the accident. His knowledge on general information and recent news, ability in abstract reasoning and calculation was fair. Dr. Chung thus found that the plaintiff's intellectual function was impaired.

50. In the first report, Dr. Chung's opinion on the plaintiff was that his intellectual and memory function were mildly impaired, his response was slow, his comprehension was impaired, his speech was not fluent and was slow and he had difficulty in expressing himself. He also suffered from postconcussional disorder which was an acquired impairment in cognitive functioning, accompanied by specific neurobehavioural symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion. He finally opined that the plaintiff had great difficulty in returning to work as a salesman because of the impairment to his intellectual and mental function, slow response, lack of confidence in meeting people, difficulty in expressing his ideas and his speech was not fluent.

51. In the second report dated 29th January, 2002, Dr. Chung recorded that the plaintiff had more frequent headaches because he had to think more at work. He had to take analgesic to combat the headache. Each episode would last for around half an hour. He had less dizziness of around 2 times in a month. He was less anxious in crowded places. He had increased confidence I meeting people and expressed himself better. The slurring of speech was also improved but his thinking remained slow. He had the same difficulty in organizing his thought and was nervous when given a complicated task. His performance on tasks was affected by his anxiety. His clumsiness over the left upper and lower limbs had also improved and could walk faster. He had a better appetite and had gain body weight but his sleep remained not good.

52. Dr. Chung also recorded that the plaintiff had bad memory and had to write down information like appointments. It took longer for him to know a new product. He also had difficulty in giving the appropriate price of a drug or how to market a product. In his examination, he found that the plaintiff's comprehension had got better, he was able to understand the question raised by the interviewer better. He had problems in expressing his ideas, the flow of speech was slightly slow, he sometimes needed to pause and think before he could organize his thought and give an answer.

53. Dr. Chung then opined in the second report that the plaintiff's mental condition ahs shown some changes as compared with the assessment in July, 2000. He found that the plaintiff's intellectual and memory function were mildly impaired and were similar to the assessment in July, 2000, his response had improved and was less slow, his comprehension had improved, he was still having difficulty in expressing ideas, he had difficulty in organizing his thoughts, he was still suffering from postconcussional disorder, he had more frequent headaches, he had improved confidence in meeting people, his dizziness had become less frequent and he was less anxious in crowded places. Dr. Chung also opined that the plaintiff's improvement was due to his better ability in coping with his difficulty and the problems were alleviated when he became more familiar with the tasks. However, the basic problems of intellectual and memory impairment and other symptoms of postconcussional disorder remained. Dr. Chung further said that it was likely that there would be further improvement in the future but that such improvement would be slight as there had already been a lapse of 3 years since the injury. Dr. Chung also took the view that the plaintiff was having great difficulty in returning to the pre-accident job as a sales manager because of the above.

54. On the administration of tests on the plaintiff's intellectual and memory functions, Dr. Chung said that these clinical tests could not detect mild impairment in these functions. His belief that there were mild impairment to the plaintiff's intellectual and memory functions was based on the plaintiff's complaints and by his assessment on the plaintiff's overall performance during the 2 interview and such was consistent with severe head injury.

55. In his oral evidence, Dr. Chung repeated his finding from clinical interview that the plaintiff had suffered some impairment but not significant impairment. He also said that working and training would enhance the plaintiff's condition and confidence and the repetition of a task will produce improvement, but the basic impairment will remain.

56. Dr. Chung also explained that the MMSE was too structured and too simple and he designed his own test for particular patient. In the plaintiff's case, he had adopted some of the questions from the MMSE.

The Defendant's Expert Dr. Edmund Woo

57. The defendant has also called two medical experts. They are Dr. Edmund Woo, a neurologist and Dr. Peter Ho Pan Nin, a psychiatrist.

58. Dr. Woo had read the medical reports by Dr. L. K. Chan, Dr. Wong Hoi Tung, Dr. Chung See Yuen (25th July, 2000) and Dr. Yu Yuk Ling (31st July, 2000). He had also examined the plaintiff on 9th April, 2001. He made a report dated 11th April, 2001 which has been admitted as his evidence in chief.

59. In his report, Dr. Woo detailed the plaintiff's complaints which have been referred to by the plaintiff in his evidence. His examination revealed a mild impairment of memory. Tests of cognitive functions including orientation, calculation, registration, general knowledge, abstract thinking, planning and executive functions were normal. His speech was mildly dysarthric (difficulty in articulating words caused by disease of the central nervous system) but without dysphasia (difficulty in speaking, with inability to co-ordinate words and arrange them in correct order). There were no focal or sensory deficit in the limbs and no primitive reflexes or paratonia to indicate frontal lobe dysfunction.

60. He commented that the plaintiff had mild residual memory loss, dysarthria, headache and nonspecific dizziness. As the injury had taken place for more than 2 years, no further improvement was expected. There was no treatment for memory loss or dysarthria whilst treatment for headache and dizziness was symptomatic with medications. Three was no indication for any regular neurological or microsurgical evaluation.

61. On employability, Dr. Woo opined that the plaintiff should be able to return to his previous job as a sales representative though the memory loss and dysarthria might limit his performance whilst the headache and dizziness might required periodic rests during the day. Dr. Woo estimated the plaintiff's loss of earning capacity at no more than 10%.

62. On the risk of the plaintiff developing seizure, Dr. Woo also referred to the research paper by Annegers et al and an epidemiological survey in China. He concluded that the risk at any time was very small. It was at no time bigger than 0.58% and diminishes with time.

63. In his oral evidence, Dr. Woo said that he had tested the plaintiff on his concentration, attention and planning and the plaintiff's performance was within the executive range. He also applied the MMSE on the plaintiff with additions and the plaintiff scored good results. The plaintiff was prompt in giving answers. He also said that the MMSE gave the best clinic correlation and confirmed that this test was used as a standard by the profession. He also said that each doctor would apply his variation to MMSE and he would adopt variations to suit different patient. He also applied the test to engineers, lawyers and doctors. In his experience, there was only one occasion that he needed extra test on a patient.

64. In cross-examination, he accepted that a patient who scored full marks in MMSE might still suffer from mild mental impairment, but that depended on how subtle was the impairment. He also stressed the importance of having clinical evidence and objective results of the tests before concluding that a man was abnormal and one should not just listen to the patient's complaints or to surmise or conjecture. He was of the view that it was highly unlikely that the plaintiff had subtle impairment though he did not rule it out. However, he did not find any mild impairment as the plaintiff had passed the test. He only found some memory problem. He also stressed that his findings were based on what he saw instead of what the patient told him and he criticized Dr. Yu of having concluded from what the patient said. He also queried Dr. Yu's finding of abnormality as it was not known what it was.

65. On the risk of the plaintiff developing seizure, Dr. Woo did not adopt the cumulative incidence rate as he was of the view that an old man at 60 suffering from a severe brain injury would have a cumulative incidence rate of about 1% whilst a young man without such injury would have about 2% because the young man has a longer working life. But that does not mean that the young has a higher risk than the old man in developing seizure. He preferred to compare a person with a severe brain injury with another person of similar attributes but without such injury. In fact, a young person at the plaintiff's age would also have a cumulative incidence rate of about 2%. He was firm that as from the day of hearing, the plaintiff's risk of developing seizure was very small and was very slightly higher than that of a normal person of similar attributes but without the accident. He also said that the increase in risk did not affect the plaintiff in his job as he was not a taxi driver or a construction worker.

66. On employability, Dr. Woo was a bit reserved. His view was that the plaintiff would not be totally unable to carry out his previous job and he opined that the plaintiff might not be able to perform it with total efficiency.

67. On the question of whether it was useful for the plaintiff to have regular follow up consultations, Dr. Woo did not think that such would be of any use. He would prefer to tell the patient to come back if he should have any problem.

The Defendant's Expert Dr. Peter Ho Pang Nin

68. Dr. Ho had read the medical reports by Dr. L. K. Chan, Dr. Wong Hoi Tung, Dr. Chung See Yuen (25th July, 2000) and Dr. Yu Yuk Ling (31st July, 2000). He had also examined the plaintiff on 9th April, 2001 for about 2 hours. He made a report dated 19th April, 2001 which has been admitted as his evidence in chief.

69. In his report, Dr. Ho again detailed the plaintiff's complaints as referred to by the plaintiff in his evidence. His examination revealed that the plaintiff had a coherent and relevant speech though a bit slow. The plaintiff was able to communicate without any overt problem detected in the interview. His mood was stable and neutral. He did not appear to be tense. He complained of low mood and attributed part of the reason to his girl friend leaving him. He had a decreased self-esteem probably due to the fact that he had used a wheelchair for a period. He lacked confidence in engaging in sports.

70. The test on the plaintiff's cognitive and intellectual functions did not reveal any particular impairment. He got a 29 out of 30 on the MMSE test which did not indicate any serious cognitive deficit. He could reverse 7 digits backwards. His performance in the whole serial-seven substation test was satisfactory. His response was not slow. He was capable of abstract thinking like giving the meaning of proverbs. He could do simple mental calculations like multiplying 13 by 13 or 16 by 16. He was familiar with recent news and his general knowledge was satisfactory.

71. Dr. Ho concluded that apart from mild speech slowness, there did not seem to be any evidence of any serious neurological deficit from the injury. The plaintiff could communicate satisfactorily with no particular problem. He could drive for many hours. He might only have a very mild depressive reaction in relation to the aftermath of the accident. The degree of postconcussional disorder, if any, would be very minimal as the neurosurgeons did not see the need to give him any treatment or follow up. He might benefit from some short-term psychological treatment. His concentration and memory was not impaired on testing. No comprehension problem was detected as his responses to questions were prompt and his answers appropriate. There was some slowness in his speech but that did not affect his communication. He could return to his job as a salesman.

72. In his oral evidence, Dr. Ho was also a bit reserved on the plaintiff's employability. He was of the view that the plaintiff was not totally unable to carry out the tasks of a sales manager whose duties were those listed in the plaintiff's supplemental witness statement. In cross-examination, he agreed that the MMSE was a test for cognitive impairment, but if the impairment was very subtle and patchy, the MMSE might not be good enough. He also said that if the plaintiff would be mildly able to perform the tasks of a salesman.

Findings

73. On the whole, I find the plaintiff as an honest and trueful witness. I find that because of the accident, he has developed a slower speech though he can respond promptly. He also suffers from memory loss. He has a confidence problem. He has occasional headache and dizziness which need to be alleviated with analgesic. There seems to be some change in his character. He has become less sociable than before. However, from his behaviour in the witness stand, I find that he has no problem in comprehension and communication.

74. Regarding PW2 Yeung, I find that he was eager to assist the plaintiff and thus played down the plaintiff's ability and diligence in performing his job. His evidence on how the plaintiff became engaged by him contradicted that of the plaintiff and I prefer the plaintiff's version. His evidence that he had wanted to dismiss the plaintiff was unconvincing. He also failed to provide a proper reason on why his oral evidence was at odds with his witness statement. I also note that the skeleton submissions by counsel for the plaintiff made no mention of his evidence. I do not accept him as an honest and truthful witness and therefore do not place any weight on his evidence.

75. I have considered the agreed medical reports and the evidence of the 4 doctors called by both sides. I accept that there is no evidence of any cognitive impairment, but I also accept the evidence of Dr. Yu and Dr. Ho that the MMSE test is not good for testing subtle and patchy cognitive impairment. I note that Dr. Woo did not rule out such impairment. I find that the plaintiff has suffered some subtle and patchy cognitive impairment.

76. On the risk of developing seizure, I accept the evidence of Dr. Woo. I find that it is not useful to consider the cumulative incidence rate for the reason given by Dr. Woo. It is only meaningful to consider the increase in risk of the plaintiff when compared with another person of similar attributes but without the injury. I find that the plaintiff's risk was very slightly higher than that of such individual. I also find that such increase does not affect the plaintiff as he is not a driver or a construction worker.

77. On the basis of the above findings, I do not think that the plaintiff can resume his job as a sales manager. I find that the plaintiff can perform the job of a salesman. Though he has not been performing too well since October, 2001, this is understandable as he has been away from the trade for 3 years and is starting afresh. Given time and accumulation of experience, his performance should improve. This employment will also improve his confidence in dealing with people. However, given his disabilities, he would not be a wholly fit salesman and I will follow the decision of the Court of Appeal in Li Wan Choi v. Choi Wan Hing [2000] 4 HKC 549 in awarding compensation to him.

Compensation

Pain Suffering and Loss of Amenities

78. Miss Yip for the plaintiff referred to Law Yuen-wan v. Tai Kam Ong HCA No. 5443 of 1979, Lau Ka Po (a minor) v. Man Cheuk Ming and Another P. I. No. 584 of 1996, Chan Kwun Tak v. Kwok Chun Fong HCPI No. 676 of 1998 Tse Ngan Heung v. Lo Sin Tak and Another HCPI No. 565 of 1999 and Li Cheong Kwok v. Ueng The Chi Francis HCPI NO. 1020 of 1999 and Li Ting Lam v. Leung Kam Ming [1980] HKLR 657. Mr. Chan for the defendant cited Tsang Hing Yuen v. Nishimatsu Kumagai Joint Venture (a firm) & Another PI No. 906 of 1998, Chan Kwun Tak v. Kwok Chun Fong HCPI No. 676 of 1998 and Yuen Yee Tak v. Hung Sang Engineering Works Ltd. HCA No. 8495 of 1985.

79. Having regard to the agreed medical reports and my findings above, I would place the plaintiff at the higher end of serious injuries as categorized in Lee Ting Lam.

80. The plaintiff's conditions were not as serious as in Law Yuen-wan who suffered severe head injuries including cerebral concussion, cerebral contusion, brain stem contusion, a fracture of the base of the skull compound into the left ear, facial bruising including the eyelids. There was a high probability of residual brain damage manifesting in alteration of behaviour, persistent headaches, risk of epilepsy, impairment of memory and asymmetrical appearance of the face. The award in November, 1993 was $120,000.00. Translating into today's figure, it is about $800,000.00.

81. In Lau Ko Po, an 11 year old student was injured with multiple abrasions and lacerations to his face and bruises to his right leg. His other injuries were similar to that of the plaintiff but his impairment was significantly worse than the plaintiff. He was awarded $700,000.00.

82. Chan Kwun Tak suffered brain and orthopedic injuries. His impairment was slightly worse than that of the plaintiff. He was award $650,000.00.

83. Tse Ngan Heung suffered brain injuries as well as minor lacerations over the head and face. She had postconcussional syndrome. Her disabilities were less serious than those of the plaintiff. She was awarded $350,000.00.

84. Li Cheong Kwok suffered injuries to the brain, head and face and orthopedic injuries. His brain injuries were not much different from those of the plaintiff, but he had other injuries. He was awarded $750,000.00.

85. Tsang Hing Yuen had a fall of 2 floors and suffered from scalp laceration of the forehead and fractures of the left hip and left wrist. He had headaches and became forgetful and irritable. He was diagnosed to have a mild degree of cognitive dysfunction and his memory and concentration were impaired. On the whole, he was less serious than the plaintiff. He was awarded $450,000.00.

86. Yuen Yee Tak suffered multiple injuries with abrasions to his head, face, body and lower limbs. He also suffered depressed fracture over parietal and left region of the head and frontal epidural haematoma, hemorrhage into right ethmodial sinus and other significant head injuries. He was left with partial paralysis and found difficulty in opening left hand. His disabilities were poor memory, left limb spastic and dyspraxia. He had difficulty in expression and personally change. The mental capacity was impaired with frustration and anxiety. His injuries and disabilities were more serious than the plaintiff and he was awarded $175,000.00 in June, 1988.

87. Since the plaintiff is categorized at the higher end of serious injuries and having considered the above decisions, I find that the plaintiff should be given $520,000.00 for PSLA.

Pre-Trial Loss of Earnings

88. On the loss of earnings, the defendant's contends that the plaintiff had been given an offer by Kong which, if accepted, would have provided an income of $12,000.00 to $14,000.00 per month. I do not agree. Firstly, the evidence on the offer was quite vague. No detail had been gone into in the discussion between the plaintiff and Kong. Assuming that Kong was keen to have the plaintiff back to his previous post as a sales manager, given the plaintiff's disabilities, which were more serious in early 2001 than now, there was no reason why Kong would have kept him in the post for long as he was unable to perform the task. I therefore find that the plaintiff's refusal of Kong's offer did not amount to failure to mitigate and I do not think I should take that offer into account in calculating the loss of earnings.

89. Regarding the notional earnings of the plaintiff, I am reluctant to use the earnings of Yeung's salesmen as a reference as Yeung was Kong's competitor. The plaintiff was a trusted manager of Kong and was given great management responsibilities. The plaintiff was also trained by Kong and promoted by him from the rank of a salesman to a manager. But for the accident, there was no reason to suggest that the plaintiff would have left Kong and joined Yeung. I would thus use the plaintiff's earnings with Kong as reference in calculating loss of earnings. At the time of the accident, the plaintiff was earning $17,333.00 per month. There was a salary increase of $800.00 to $1,000.00 per month in March or April of 1999. Salary in general had become stabilized in 1999 and there was in fact a trend for reduction for salary. Furthermore, there was evidence that Kong's business did not fare well after the plaintiff had been injured. Taking these into consideration, I would use the plaintiff's earnings with Kong subject to the salary increase for the calculation of loss of earnings. The pre-trial loss would thus be:

$17,333.00 x 10 + $18,310 (with salary increase at $900.00 per month for 13 months' pay in a year) x 37.5 months - $32,760.00 - $32,500.00 = $794,695.00

90. Post-trial Loss of Earnings

On multiplier, Miss Yip referred me to Lau Kin Wah v. Kan Shu Kan [2000] HKLRD E13, Leung Lai Yin v. Yeung Kei Chi [2000] HKLRD D14, Lai Chi Ming v. Ng Pak Chuen [2000] HKLRD J9 and Lam Mo Bun v. Hong Kong Aerosol Co. Ltd. [2001] HKLRD I540.

91. In Lau Kin Wah, the plaintiff was injured at 31 and assessed at 35. He was given a multiplier of 13. In Leung Lai Yin v. Yeung Kei Chi the plaintiff was injured at 32 and assessed at 36. He was given a multiplier of 14. In Lai Chi Ming v. Ng Pak Chuen the plaintiff was injured at 30 and assessed at 34. He was given a multiplier of 14. In Lam Mo Bun v. Hong Kong Aerosol Co. Ltd., the plaintiff was injured at 35 and assessed at 39. The multiplier was 13. In the present case, the plaintiff was injured at 27 and assessed at 30. Miss Yip suggests a multiplier of 15 and I agree. I do not agree with the defendant's suggestion that it should be at 13. The post-trial loss is thus at ($18,310 - $6,500 (present earnings in Yeung's employ)) x 180 = $2,125,800.00.

92. Loss of Earning Capacity

I also agree with Miss Yip that I should follow Li Wan Choi v. Choi Wah Hing & Another [2000] 4 HKC 549 and hold that because of his disabilities, the plaintiff would suffer a disadvantage in the labour market. I therefore award a 12 month loss for him at $78,000.00 as suggested by Miss Yip.

Loss of Retirement Benefits

93. The defendant ahs not dealt with this item. I adopt the plaintiff's calculation but using my multiplicand. The loss would be:

December, 2000 to January, 2001

($18,310 - $3,640.00) x 2 months x 5% = $1,467.00.

February, 2001 to September, 2001

$18,310 x 8 months x 5% = $7,324.00.

October, 2001 to June, 2002/7/6

($18,310 - $6,500.00) x 9 months x 5% = $5,314.50.

July, 2002 onwards

$2,125,800.00 + $78,000.00 x 5% = $110,190.

The total sum under this head is:

$1,467.00 + $7,324.00 + $5,314.50 + $110,190 = $124,295.50.

Miscellaneous Damages

94. The parties agreed on hospitalization expenses at $6,288.00, traveling expenses at $16,040.00 and traveling expenses of the plaintiff's family at $10,000.00. The dispute is on bonesetter and acupuncture fees and tonic food. For bonesetter and acupuncture fees, I think it excessive to incur $31,800.00 particularly when the effect is not clear and the plaintiff did not seem to think it useful. I would allow $5,000.00 for this. Regarding tonic food, the plaintiff thought that it did no good to him. But he took the same just to please members of his family. In the circumstances, I allow $5,000.00 as well. The total sum allowed under this head is at:

$6,288.00 + $16,040.00 + $5,000.00 + $5,000.00 = $32,328.00.

Costs of Future Medical Care

95. I accept the evidence of Dr. Ho that some short-term psychiatric treatment would be beneficial to the plaintiff. I do not accept the evidence of Dr. Yu for regular follow up and on this point, I accept the evidence of Dr. Woo. I therefore allow $6,000.00 under this head.

Interest

96. There is agreement on the basis of calculation of interest and I award 2% per annum for PSLA from the date of writ to the date of judgment and half the judgment rate for the pre-trial loss of earnings and special damages from the date of accident to the date of judgment.

Summary

97. The summary of the sums payable to the plaintiff is as follows:-

(i)	PSLA	$520,000
(with interest at 2% per annum for PSLA from the date of writ to the date of judgment)
(ii)	Pre-Trial Loss of Earnings	$794,695.00
(with interest at half the judgment rate from the date of accident to the date of judgment)
(iii)	Post-Trial Loss of Earnings	$2,125,800.00
(iv)	Loss of Earning Capacity	$78,000.00.
(v)	Loss of Retirement Benefits	$124,295.50
(vi)	Miscellaneous Damages	$32,328.00
(with interest at half the judgment rate from the date of accident to the date of judgment)
(vii)	Costs of Future Medical Care	$6,000.00.
		______________
Total:		$3,681,118,50
		==============

Judgment

98. I therefore give judgment in terms of the figures in paragraph 95 above. I also make an order nisi that the defendant do pay the plaintiff costs of the assessment to be taxed. I further order that the plaintiff's own costs be taxed in accordance with Legal Aid Regulations.