LAU LI WING v. SECRETARY FOR JUSTICE

HCPI 481/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 481 OF 1996

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J U D G M E N T

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1. This 52 year old lady sustained a fall at her place of employment with the first Defendant, in September 1993, now six years ago. She fell on her buttocks and fractured her lower coccyx bone, a type of injury which is known to produce long lasting pain and discomfort even though clinically the fracture unites without apparent problem. Liability has now, at this very last minute been admitted, and so I have to deal only with the assessment of the damages consequent upon the injury.

2. As seems to be the norm in such cases there is very little agreement in respect of the damages claimed even though in this case the Defendants discharged her from their employment on medical grounds and she has been virtually unemployable ever since, a finding of fact which I state at the outset because the Defendant's arguments and approach on this aspect has been nothing short of illogical and unrealistic.

Pain and Suffering and Loss of Amenity

3. The condition she developed was and is coccydynia. An MR1 in September 1995, two years after the accident, showed mild prolapsed inter vertebral discs at L4/5 and L5/S1 levels. It is accepted that these are consequences of the fall. The evidence I accept is conclusive of that.

4. Dr. David Lee, in his report of 10th November 1995, noted from the X-rays taken by him, that increased density of the coccyx bone demonstrated some degree of osteoarthritis. As a result she has chronic pain. She also has sciatic pain.

5. She attended hospital for physiotherapy throughout the remainder of 1993, the early part of 1994 and the summer of 1995. I accept her evidence that when she returned to work in late 1995, having exhausted her two years sick leave, she found it difficult to have physiotherapy because of the demands made upon her. That attitude by her supervisor was wholly unreasonable.

6. Medical boards conducted an assessment of her condition in March and October 1994 and November 1996. All decided her back condition was probably permanent and that it was unlikely she would return to normal duty. She remained on light work up to November 1997.

7. Dr. Arthur Chiang examined her in December 1997 and June 1999. She had been able to resume physiotherapy since her discharge from employment and some improvement had been noted. She had declined surgical intervention and, wisely, the defendants have not chosen to challenge her on this.

8. Her current problems are a reduction in her body weight, in the girth of her lower limbs. She has pain at the postero-lateral aspect of both sides of the pelvis, paraesthesia in both lower limbs especially on the right side. Backward bending is painful. There was significant reduction in extension of the back and a notable reduction in the flexion on both sides but now improved somewhat. Dr. Chiang felt her symptoms had stabilised. He concluded that no further treatment would be beneficial. She should, he thought, be able to return to her pre-accident job provided she avoided heavy manual activities and lifting in order to avoid a relapse. He rejected when put to him in descriptive terms, any ability to lift and manoeuvre heavy kitchen cooking equipment.

9. The Defendants had required Dr. Chiang to give evidence as to the type of work which the Plaintiff could do. In my view this was a complete waste of time, of Dr. Chiang's expensive time, and was purposeless. His two reports had made clear what the Plaintiff's work capacity was and in any event as will appear from the examination of the Defendant's handling of Plaintiff's employment, of irrelevance. This lady has no employment available to her and the Defendants have not been able to offer her any themselves.

10. Dr. Chung See-Yuen, the consultant psychiatrist, examined her in February 1998 and June 1999. Her condition had not changed over that fourteen month period. She was depressed and distressed. She was anxious about the prospects of finding employment. In view of the fact that she was the essential breadwinner in the household, this is entirely understandable. She had lost more than 10 pounds since the accident. In February 1998 she weighed 119 pounds. When Dr. Chiang weighed her in June of this year she had lost a further 10 pounds.

11. She was suicidal in the early part of 1995, taking a drug overdose in July of that year. She was in hospital for two days. He describes her state as chronic depression of mood. This was readily apparent to me and she was on the verge of tears on several occasions. He is of the view that some psychiatric treatment will help alleviate her mental condition. She will however be able only to do light work though I am satisfied that she is anxious to work. The family is dependent upon her. I doubt however that she will be able to obtain employment in the foreseeable future. Dr. Chung says that in any event, she will be affected by the depressive problems for many years to come. Those of us who have the advantage of relatively secure sedentary occupations and some form of pension, perhaps index-linked even, ought to appreciate the devastation, psychologically, and in economic terms, brought about by injury which affects capacity to work and results eventually in dismissal from employment. Some arguments advanced on the basis of availability of alternative work are not tenable. The condition of a person's back is more often than not the barometer of physical and mental well-being. These injuries fall within the category of serious injuries.

12. General Damages will be $500,000.00

Loss of earnings

13. After she returned to work it became apparent that she was unable to carry out her full pre-injury duties and she was put on light duties. A medical board met in November 1996 and one year later her employment was terminated on the grounds of ill-health. To their credit her employers made inquiries of many departments within the Civil Service to see if any one or more of them had a vacancy for her category, Workman II, with her limitations. None had. This was not surprising in view of the medical board's finding - "She cannot perform normal duties. Her disability is expected to be permanent. The board has serious doubts as to whether she can ever return to normal duties in the future."

14. A staff memo of 27 August 1996 expressed her superintendent's fears even more dramatically.

"Having her on our team is like having a time-bomb on our hands ... who is to bear the brunt if [she] does hurt herself again on the job is left unanswered."

There was concern too about possible grievances from co-workers on account of the exemptions being made in her favour.

15. Although somewhat over dramatised there was some basis for the concern. An incident or particular effort might well exacerbate her condition and it is not surprising that other departments would not take her on as Workman II. But no alternative position with light duties commensurate with her physical capacity was offered. She therefore ceased to be employed.

16. However notwithstanding their action in dismissing her, the employers, or the Department of Justice on their behalf, argue that she is capable of some work, ought to have found some light job by now, and in any event will find light work at some time in the future. This is in my view a wholly fallacious argument.

17. There was no job available for her within the Civil Service in the sort of category suggested; tea-lady, messenger, light office duties. No such offer has been made since. The fears of her employers that given her physical condition, some incident might exacerbate it, would be the reasonable fear of any employers. Both Dr. Chiang and Dr. Yeung say she is capable of such light work involving no lifting or other physical exertion but she would need an understanding employer. She has limited tolerance of sitting, walking and standing. In her quest for such a job she would have to explain all these factors to a potential employer. The alternative would be not to disclose them, and to try and do a job beyond her physical capabilities with the concomitant risk of at least exacerbation, or further injury. Her psychological state, damaged as it has been with accompanying mild depression, would be precarious. In my view on a common sense approach it is quite unrealistic to expect her to be able to obtain gainful employment. If there is this theoretical or notional vacancy, the Departments are in the best position to translate it into reality. There will be no deduction of notional earnings in respect of her loss of earnings, past or future.

18. The pre-trial loss has recently been agreed in the sum of $279,022.61c. Her future loss of earnings has also been agreed in the sum of $790,344.00 on the basis of an agreed multiplier of 6. These agreements were subject to the Defendants' argument as to notional work capacity and earnings which has fallen by the wayside. Accordingly those are the figures for my assessment. The claim for loss of earnings capacity was predicated on the basis of acceptance of an argument that she should have been able to earn (and/or will be able to earn) wages in some light job. Since that situation is not accepted this alternative claim need not be considered.

Medical Expenses

19. These are claimed in the sum of $37,060.00 and are set out in paragraph 6 of the Revised Statement of Damages. The Defendants do not dispute that the Plaintiff had in fact paid fees amounting to that sum. Their principal argument is against a sum of $25,300.00 in respect of item (e), Mr. Shum contending that it should be added to the figure claimed for tonic food on the basis that it represented herbs or other medicines used in cooking. I will come back to this aspect later.

20. The other sums amount to $11,760.00. The Defendants say only half that should be allowed but are not able to advance any cogent argument for this reduction other than a generalised condemnation of the Plaintiff for pursuing Chinese cultural remedies, advice and treatment, side by side with, and sometimes instead of, conventional western style treatment. Having heard and seen the Plaintiff I am quite satisfied that she acted reasonably, that there was at least some transient benefit, if only at times a placebo effect, and that the sums were reasonable. The sum of $11,760.00 is therefore allowed.

21. As to the $25,300.00 mentioned above, I was, for a while, led by Mr. Shum into thinking that these items should be included with tonic food. However Mr. Lam for the Plaintiff brought me back to a factual appraisal when he indicated that this sum referred not to herbs and such like used with or in tonic food but were liquid and powder form medicine for external application as recommended by the Chinese traditional practitioners.

22. Once paragraphs 6(d) and (e) of the Revised Statement of Damages were re-read it is clear that they were indeed external applications. The Defendant's Answer on this aspect is consistent with that understanding. In their paragraph 6 they group (d) and (e) together, rejecting this part of the claim as unjustified as the Plaintiff was receiving free medical treatment, and also on the grounds that there was no genuine need for them since they were not shown to be efficacious or reasonable. It is apparent that the defendants accepted (d) and (e) as linked and did not suggest that (e) was an item that should feature with the claim for tonic food as part of it. Mr. Shum sought leave to amend this Answer in the course of an extra opportunity I gave him to deal with any other matters. He said the Answer was not his pleading or responsibility. I reminded him that it was part of the Defendant's case and I refused to give him leave. I had heard and understood his arguments well enough and it was clear that the claim under (e) should not be seen as part of a claim for tonic food. I am satisfied that the Plaintiff is entitled to recover the full sum pleaded for medical expenses, viz. $37,060.00. Mr. Lam had reminded me of Roberts C.J.'s judgment in Yu Ki v. Chin Kit Lam [1987] HKLR 419 which Mr. Shum had overlooked in the course of his argument when directing my attention to the Court of Appeal decision in King Light Industrial Ltd. v. Lo Wai Keung [1994] 3 HKC 54 which, incidentally applied Yu Ki v. Chin Kit Lam. When page 65 of the Court of Appeal's judgment was obtained, it was missing from all the copies supplied by the Defendants, one could see the authorised approach to nourishing food claims - but that part relating to Chinese practitioner treatment did not feature.

Travelling Expenses

23. These were originally pleaded at $4,010.00. The Defendants did not agree them - even though they appeared extremely reasonable - and now no doubt regret that failure. In the course of the plaintiff's evidence it emerged that she had on two occasions, in 1996 and March 1999, made schedules of the journeys and their cost, and one of them related to the initial period 1993 to end 1995. It was now apparent that the pleaded amount related largely to that earlier period. I accept the Plaintiff's evidence that she made the journeys which she recorded. Some of these were by public transport and some by taxi. How her claim failed to reflect those expenses is far from clear. The amount she now puts forward is in excess of $40,000.00 over the six year period, i.e. approximately 2,200 days. The maximum round cost of a trip was $100 - the minimum $20. Taking an average of $60 per round trip and with the total costs rounded down to $40,000.00, the number of round trips was 666, or one every three days approximately. Although I do not rule out such frequency as being incompatible with her condition and needs, there must have been longer periods without such journeys. Mr. Lam on her behalf reduces the claim to $19,707.00 and I gave leave for that amendment to be made to the original pleaded figure because I considered it just to do so, given her evidence and the circumstances. It was obvious to me that the original claim under this head was far too low.

24. As a rough check on this figure I have taken one round trip per week for the six year period at an average cost of $60. The total is $18,720.00. I think that allocation of one trip per week is probably too low and therefore I find Mr. Lam's amended figure of $19,707.00 a reasonable one, which nonetheless runs the risk of being too harsh on the Plaintiff. However it is clearly not the Defendants' fault that they are faced with a higher figure. The reduction Mr. Lam has conceded is a fair one in all the circumstances. $19,707.00 is therefore allowed.

Special equipment

25. This is agreed in the sum of $2,900.00.

Tonic Food

26. This proved to be a burning issue between the parties and as I mentioned earlier I was referred by Mr. Shum to the decision in King Light Industrial Ltd v. Lo Wai Keung. Quite apart from that case the figure of $103,620.00 seemed unjustifiably high. It is a difficult area given the cultural tradition but it cannot be regarded as a 'licence to shop' charged against Defendants. Mr. Shum has suggested $20,000.00 as a reasonable figure and Mr. Lam agrees that. I think that that is a collective sensible approach. It is not to be regarded as a norm or guideline figure. Evidence of need, benefit, reasonableness and the period involved will vary from case to case as will the nature of the disability and any psychological problems involved.

Future Medical Expenses

27. I was not satisfied that the Plaintiff would in fact undergo these psychiatric sessions. Furthermore even on the basis of the opinion of the recommending psychiatrist, Dr. Chung See-Yuen, the benefit was likely to marginal. I think that the Plaintiff will derive at least the same benefit if not a greater one, from the resolution of her claim. There is therefore no allowance under this head.

Summary
Pain suffering and loss of amenity	500,000.00
Pre-trial loss of earnings	279,022.00
Post trial/Future loss of earnings	790,344.00
Medical expenses	37,060.00
Travelling expenses	19,707.00
Special equipment	2,900.00
Tonic food	20,000.00
	1,649,033.00
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28. There will therefore be judgment for the Plaintiff for $1,649,033.00 with costs. There will also be interest on the relevant sums at the appropriate rate. The solicitors for both parties can agree those calculations.

Oral Medical Evidence and Cost

29. For some reason which I do not understand the Defendants required the attendance of the Orthopaedic Consultant, Dr. Arthur Chiang, who had provided two reports on the Plaintiff on the instructions of the Director of Legal Aid, and of Dr. S.H. Yeung, the orthopaedic consultant instructed by themselves. Having read their reports I could see no material difference between their assessments and views. Indeed I was told by Mr. Shum that their reports were essentially agreed. However I was informed that the doctors could assist on one or two matters. I did not at first realise that, after hearing Dr. Arthur Chiang, it was still deemed necessary to call Dr. Yeung. What they were in fact asked on behalf of the Defendants was already covered by their respective reports. They added nothing in their answers. They must have wondered why they were called to give evidence. I asked them a few questions designed to make them feel that their valuable time had not been entirely wasted. What they were able to add, by way of underlining, put an end or ought to have put an end to any notion that there existed any real prospect of future employment for this lady. I ascertained that the combined cost of their attendance is $21,250.00. That sum has to be paid out of the funds of the Department of Justice - i.e. public funds provided by the taxpayer and other sources. It was a complete waste of public money and some degree of judgment ought to have been exercised to prevent that.