LAU TSZ HA v. CHUI SANG CHOY AND ANOTHER

HCPI 489/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 489 OF 2006

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D E C I S I O N

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1. The Plaintiff sustained injuries whilst travelling on board a taxi driven by D1.  The taxi collided with that driven by D3.  Judgment on liability has been entered against D1 and D3 with liability apportioned at 80% and 20% respectively.  Damages are to be assessed.  The Third Party conceded to bear 30% of the Plaintiff’s assessed damages. In these proceedings for assessment of damages, the core issues concern the true extent of the Plaintiff’s residual disabilities and hence the extent to which she can recover her loss of earnings.

The Accident

2. The accident occurred on 27 June 2003 when the Plaintiff was travelling with her colleagues.  The Plaintiff was sitting at the far right of the rear seat of the taxi, her right hand holding the handle above her head.  When the taxis collided, the bodies of 3 colleagues pressed against hers.  She sustained injuries to her right shoulder and had to be removed by 3-4 ambulance men out of the taxi with great care.

Injuries Sustained and Treatment

3. As a result of the accident, the Plaintiff’s right upper arm was swollen.  X-ray showed fracture with displacement of the upper end of humerus (arm bone) at right shoulder.  There was also abrasion on bridge of nose and the right knee. 

4. She sought private medical treatment instead of hospitalization because of SARS.  She received private orthopaedic treatment for about 6 months.  She was given an arm sling and was instructed not to move her shoulders for 5 months.  Sick leave was granted for 6 months up to 31 December 2003.  She continued the exercises taught by the physiotherapist at home.

5. She also attended general outpatient treatment at government family clinics.  She received 10 sessions of physiotherapy over 3 months up to December 2004 but defaulted thereafter. 

6. The Plaintiff claimed that the physiotherapist told her that she would continue to suffer from the pain and restriction on angle of movement.  She told the doctor at the Families Clinic accordingly.
The doctor asked her to consult private physiotherapists.  Therefore, on one occasion when a credit card company offered physiotherapy service, she consulted one.  The treatment included Chinese medicine, acupuncture and physiotherapy.  Unexpectedly, she was told that she had lost 50% of her capacity and required 20 physiotherapy sessions.  Since she did not believe their assessment, she did not continue the treatment afterwards.  She did not believe physiotherapy would help her much.  She turned to other treatments like tai-chi and qigong.  She also received traditional Chinese medication.

Medical Findings

7. According to the physiotherapist’s report, the muscle power of the shoulder was initially grade 4 in September 2004.  The Plaintiff had full range of power and movement in the shoulder after 10 sessions in December 2004 (1 ½ years after the accident).  The muscle power of her shoulder was grade 5 (normal).

8. The Plaintiff was examined by 3 medical experts:

·    Dr. Johnson Lam (the Plaintiff’s expert) on 3 March 2006 (2 years and 8 months post-accident). 

·    Dr. Lam Kwong Chin (D1’s expert) on 27 November 2006 (3 years and 5 months after the accident). 

·    Dr. David Cheng (D3’s expert) on 12^th January 2007 (3 years and 6 months after the accident).

9. The Plaintiff’s chief complaints to them were about pain and weakness over the right shoulder and upper arm, which would be worsen with changing weather.  The pain was grade 8/10 in the worst situation.  There was increase of pain on elevation/abduction of right shoulder to 90 degrees She claimed being affected in her daily activities and work. 

10. All of the experts found that the fracture had healed with acceptable displacement.  They endorsed her sick leave period, held the view that she could return to her pre-accident job and had reached maximal recovery.

11. Doctor Johnson Lam found that there was mild muscle wasting of the right shoulder girdle muscles and deltoid muscle.  The spine of scapular was more prominent on the right side because of wasting of muscles.  The Plaintiff still experienced significant residual pain and stiffness in her right shoulder. She was found to have considerable difficulty in certain duties like writing on and cleaning white board and lifting children.  However, with proper ergonomics at work, she should be able to manage other duties including prolonged writing, using computer and playing the piano.  The Plaintiff would have difficulty working as a kindergarten teacher if she needed to lift children during work.  She should be able to return to her work as a lecturer but with modifications.

12. Doctor Lam Kwong Chin found that there was no muscle wasting of the upper limbs, showing that the Plaintiff was using the right upper limb effectively over the past few years. There was no spasm of the right shoulder or motor weakness.  Restriction of the shoulder was mild and much better than the time she was examined by Dr. Johnson Lam 8 months before.  Satisfactory functional recovery of the shoulder was expected and there should be gradual improvement with daily activities.  He thought that there should be little physical problem for the Plaintiff to work as a teacher whether in a kindergarten or post-graduate courses.  Modern technology would be helpful rather than writing on the whiteboard.

13. Doctor David Cheng also found that there was no muscle wasting of the right shoulder.  Range of motion of the right shoulder was slightly limited but muscle power was the same on both sides.  The effect of the injury on the Plaintiff was mild.  She had a good functional range of movement and hardly needed to keep her right arm in a fully elevated position.  He thought that if the Plaintiff was not required to lift small children above her head, she could have been capable of resuming her pre-accident job as a kindergarten teacher.  Social and other activities were unlikely to be affected in any significant way.

Current Complaints of Injuries

14. The Plaintiff claims that she still experienced significant residual pain and stiffness in her right shoulder and posterior aspect of her back and neck with the change of weather or when required to apply force upwards and forwards.  The pain would radiate to the little finger.  It affected her work, her sleep, her hobbies and her daily activities.

Pre-Accident Jobs

15. Before the accident, the Plaintiff was a full-time kindergarten teacher and a part-time lecturer in the Vocational Training Council/ Lee Wai Lee (“VTC/LWL”), Chinese University (“CU”) and Hong Kong Polytechnic University (“PU”) that trained and supervised teachers and staff. 

16. The pre-accident income was $447,742 per annum (i.e. $217,000 from Yew Chung and $230,000 from the other 3 institutes), an average of $37,312 per month.  That in total was more than what a full-time university guest lecturer could earn (about $290,000).  In addition, Yew Chung provided her with dependent’s school tuition fee subsidy for her 2 children for their studies in Yew Chung up to their respective year 13.  Her earnings were subject to increase.

Return to Pre-Accident Job of Teaching Kindergarten

17. The Plaintiff resumed her work as a full-time kindergarten teacher in January 2004 after the sick leave period expired.  She taught K2 (children aged 4 to 5).   Initially, a lot of colleagues volunteered help.  She gradually became aware of the difficulties at work.  She suffered the greatest pain when she had to use force forwards or upwards.  She mentioned several difficult situations in her oral evidence:

(i)  The children sat on the floor.  The Plaintiff sat on a low chair and lifted her arm to write words on the whiteboard at the children’s eye level.  Such writing and wiping out would give her nagging pain.  She could not simply use a computer because she needed to demonstrate on the whiteboard how to write.

(ii)  After stapling children’s handcraft onto the display board, the pain would increase and last for a long time.  So she had designed some activities to teach kids to do it themselves.  Because of that, she was for the first time given a warning by her supervisor for shifting her responsibility to the children.

(iii)  On one occasion in about August 2005 when she forced herself to help a kid, both of them fell to the ground and the kid fell on her. 

(iv)  On yet another occasion when she tried to pick up a child he/she slipped out of her arm.  Parents complained.

(v)  There was a climbing rack about 8-9 feet tall and elevated loop in pyramidal shape.  When a child was too scared to climb down from height or when 2 children argue up there, she had to hold them down.  In using force, her right arm would shake.  On one occasion, she used her arm to hold a child and shouted for assistance.  She was blamed by the assistant who had to put down her cutting work to help her.

18. About 5 months after she had resumed duty, Yew Chung changed her full-time employment to part-time on their initiation for the academic year 2004/2005.  The Plaintiff claimed that it was because the human resources staff expressed great concerns over her health condition and pressure she created on other staff.  In the subsequent year, the Plaintiff was assigned to teach K1, namely, the youngest kids who had no prior schooling experience.  The Plaintiff could not cope with it.   She resigned, having taught at the school for over 5 years by 8 November 2005. 

19. The Plaintiff had contacted the headmasters of kindergartens.  Some of them were her classmates whilst some were her previous bosses.  She honestly told them why she left Yew Chung and requested for the opportunity of teaching K2 or K3.  She requested to do less work such as pinning things to the decoration board in returning for dealing with other matters in a class and sharing the advisory work of other teachers.  She expressed her wish to contribute to kindergarten education.  However, she was told to give up the aspiration of being a kindergarten teacher.  At the latest stage of her discussion with the headmasters, it was suggested to her that she should give more seminars as lecturer, which she did for free.  Only one school invited her to conduct a seminar with pay of $3,000 in 2008/09.

The Part-Time Jobs

20. After the accident, apart from VTC/LWL which continued to employ her as lecturer/course coordinator up to the year 2004/05, the 3 institutes had not renewed her contracts as part-time lecturers.  Instead:

(i)      PU re-employed her as field supervisor from 2004/05 till now. No employment was offered between 2003/04.

(ii)      HK Institute of Education employed her as field supervisor and guest lecturer since 2006.  To start with, she was given 11 students to supervise.  By 2009, the number increased to over 30.

(iii)     Open Univeristy employed her as teaching practice supervisor since 2008.  The number of students under her supervision increased from 15 to 35.

21. At one time, the Plaintiff had up to 70-80 students to supervise.  Her teaching occupied almost a full day of about 6 hours.  She claims that she has capacity to supervise 300-400 students per academic year.

22. The Plaintiff had applied to other institutes as well but was unsuccessful.

23. According to her, the institutes did not install computers or provide powerpoint in the past.  In 2003, for example, she had to move a projector from one classroom to another in one of the 3 institutes and set it up before using.  She needed the assistance of students, teachers and school helpers.  The school helper who lent a cart to the Plaintiff complained about the extra help he needed to give and that  returning his cart after lessons affected the time he came off duty.  The equipment in the institutes is more advanced now.  She got friends to type her notes and prepare powerpoint in advance.  She was confident that she could try her best to cope. 

24. The Plaintiff claimed that she could not get her previous part-time jobs renewed due to her residual disabilities. 

Other Sources of Income

25. The Plaintiff has got a one-off contract for writing books for early childhood education.  She got royalty which formed her major income for the tax year of 2008/2009.

Loss in income

26. The Plaintiff never returned to her previous employments with full force.  She is a field work supervisor, book writer and freelance speaker for the academic year 2009/2010.

27. Her earnings have dropped significantly since the accident:

·  As at March 2007 - $79,272 (i.e. 18% of her pre-accident income)

·  As at March 2008 - $ 95,638 (i.e. 21% of her pre-accident income)

·  As at March 2009 - $151,283 (i.e. $12,600 per month or 34% of her pre-accident income)

28. The Plaintiff claims damages totalling about $5.7 million. 

The Defence Case

29. The defence was that the Plaintiff has not suffered from any residual disabilities and thus could resume all her pre-accident jobs. She has exaggerated her pain and sufferings. 

30. Both Defendants agree to bear her loss of earnings as kindergarten teacher during the sick leave period.  Only D3 agrees to pay for the period when the Plaintiff’s full-time teaching became part-time. D1’s suggested quantum is $130,000 covering PSLA and special damages.  D3’s suggested quantum is $172,956.15 covering PSLA, pre-trial loss of earnings and special damages.

Credibility of the Plaintiff

31. I find the Plaintiff to be a truthful and honest in describing details of the facts.  I find the matters in paragraph 17 to have happened.  I accept she suffered pain but believe the physiotherapist that the pain would continue.  I disagree with some of her views on certain aspects which will be specified below. 

The True Extent of the Plaintiff’s Residual Disabilities

32. To decide on the quantum of the claim, I have first to determine the true extent of the Plaintiff’s residual disabilities.

33. The Plaintiff had not in her witness statement/medical reports mentioned that she needed to lift children above her head or the specific incidents in which she had trouble handling the children.  When she made her statement dated 7 June 2007, the Plaintiff should be fully aware of the point taken by the defence as to her alleged difficulty with lifting children but chose not to give any reason to support her alleged difficulty.  No attempt was made to file a supplemental witness statement to deal with this issue.  It was only 2 years after Doctor Cheng’s report that she tried to adduce witness statements to explain the necessity to lift children above shoulder level in kindergartens.  Counsel for D1 submitted it was her concocted claim and a recent invention.

34. The Plaintiff admitted that she had read the medical reports.  She claimed she had given the doctors every detail and cooperated.  She explained, however, that she did not know that the physiotherapist held the opinion that her muscle power was full.  She also thought she should not comment on the doctors’ personal views for fear that she would be accused of affecting legal proceedings.  She did not appreciate the significance of commenting on the doctors’ reports or to mention the difficulties at work in her witness statement.  I consider these explanations to be puzzling as those matters were directly relevant to prove the effect of the disabilities on her work. 

35. She was not sure if she told Doctor Cheng that she not only have to lift children up but also above the head.   It would be strange for Doctor Cheng to suddenly mention about lifting a child above the head without any indication from the Plaintiff.  On balance, I find that it was probably the Plaintiff who told the Doctor about this need when describing her job duties to him.  It was regrettable that she or her solicitor saw fit to try and obtain witness statements from principals or kindergarten teachers to describe this need but she did not file a supplemental witness statement herself.

36. All medical reports concluded that 6 months’ sick leave was adequate.  They showed that the Plaintiff had reached maximal recovery in 2006/2007.  There was no mention in any of the reports that there could be further deterioration.  As at 24 September 2004 when she started physiotherapy, there was only mild stiffness and slight weakness at grade 4.  She had not consulted orthopaedist or physiotherapist apart from the period stated in the 3 medical reports. It might be that she has already achieved good functional recovery with only mild residual pain.  There was no updated medical reports after Doctor Cheng’s in 2007.

37. As submitted by D1’s counsel, the lack of muscle wasting was the best objective evidence that she had full use of her right upper limb and was relatively pain free.  The medical evidence does not support the claim of pain and difficulty in lifting children.  Her claim that she has radiating pain and numbness was not reflected in the expert reports.  Even if the pain and numbness existed, they were symptoms of involvement of nerves and yet there is no evidence of involvement of nerves.

38. As submitted by D3’s counsel, the history of treatments, which was a piece of objective evidence, failed to show a patient desperately looking for medical help for pain relief or frequently in need of medical consultations.  The pain was not uncontrollable.  Oral analgesics manages.  No special prescriptions were given.  The recommendation had been physiotherapy which the Plaintiff defaulted on.  The pain was postural.

39. I have reviewed the medical reports.  The physiotherapist did not mention whether the pain had lasted and whether it had impact on her work.  Doctor Johnson Lam found that she had muscle wasting but the other 2 doctors did not.  Doctor Lam Kwong Chin, the 2^nd expert in time, found that she had improved since she was examined by Doctor Johnson Lam 8 months previously. Each of the experts’ view on the impact on work differed.  Doctor Johnson Lam commented that proper ergonomics should manage other work but did not say that it could deal with the problem about writing on and cleaning the white board.  He was of the view that lifting children would be a problem. Doctor Lam Kwong Chin commented that modern technology would be helpful rather than writing on the whiteboard but he did not state there was a problem about lifting children.  Doctor Cheng commented that the Plaintiff had no problem lifting a child unless the lifting was above her head but it appeared that no objective test was done to reflect this.

40. None of the doctors were told about the specific situations in paragraph 17 above to enable proper investigation of the Plaintiff’s claim.  They maintained the view that the Plaintiff was fit to return to her pre-accident job.  Consequently, the Plaintiff’s claim as to significant residual disabilities was not supported by objective medical evidence and the burden of proof was not discharged. 

41. I now turn to the various heads of claim.

A. Pain, Suffering and Loss of Amenities

42. At the time of the accident, the Plaintiff was just 2 days before her 37^th birthday and was aged 43 by the time of the assessment.  She enjoyed good health before the accident.  She is right-handed and is a non-drinker and non-smoker.  She is married with 2 children.  Ms. Tsang submits that the award under this head ought to be $300,000.  On the other hand, defence counsel submit that it should be not more than $120,000.

43. The Plaintiff claims that she has difficulties in coping with her job and daily activities.  I am satisfied that the Plaintiff had tried many solutions.  The right arm could not carry stuff for a long time so she had to sling handbags across the left shoulder, which caused the left shoulder to become painful.  During bad weather she would feel nagging pain around the deltoid muscle up to the neck.  It affected her sleep and she sometimes needed sleeping pills.  She was advised to use medicated ointment but ceased doing so because Yew Chung students complained about the strong flavour.  Painkillers did not work on her and the dosage increased.  She had stopped swimming, playing the hula-hoop and badminton. 

44. Writing on and cleaning the white board should have ceased by now because she no longer taught in a kindergarten.  Taking rest in between the hours of using the computer can reduce the pain.  Playing the piano was job-oriented rather than a hobby. 

45. The Plaintiff cannot clean windows.  Sometimes after forcing herself to use her right arm the pain would last for a couple of hours.  I respect the way the Plaintiff arranged her domestic work.  I accept that, having lost articles in the past (when another domestic helper was employed), she would not allow her domestic helper to enter her room to clean the windows, change the drapes or hang her clothing.  I also accept that, having regard to her husband’s heavy workload and supporting attitude, she would not want to add to her husband’s burden either.  However, she could explore other options, for example, engaging contractors to clean the windows at longer intervals with proper arrangement.  Therefore, except for the sick leave period and a short period thereafter, say, 6 months, when the Plaintiff had to adjust to the changes, the Defendants should not bear damages for the inconvenience or enjoyment of not having clean windows at her home.

46. I have considered all the authorities submitted by counsel on both sides on PSLA and found the following to be relevant.

47. In Lau Chi Man v. Kowloon Canton Railway Corporation, DCPI 501 of 2005 (decided in 2006), the Plaintiff had a fracture shaft of right radius.  His right forearm was deformed with marked decrease in the range of movement.  The radial pulse is palpable.  Open reduction was performed and a long scar was left on his right forearm after the surgery.  He was hospitalized for 4 days.  Sick leave was granted continuously for 22 months.  He received occupational therapy and physiotherapy treatment.   He had swelling of right hand after doing physical exercise for about an hour.  He had a weakened right hand grip.  Because of the forearm pain, he could not engage in any kind of activities requiring repetitive movement of his dominant right hand.  The Plaintiff still felt stiffness and soreness over his right forearm when pressure was applied over the previous fracture area.  He felt discomfort when pushing heavy object or during turning motion of forearm.  He was awarded $220,000.

48. In Tsang Hin Cheung v. Ng Kit Yeung & another, HCPI 956 of 2003, the Plaintiff driver suffered a comminuted fracture of the right distal radius and ulna.  An open reduction and internal fixation was performed.  He was put on a long arm hinged brace afterwards.  He was hospitalized for 6 days.  The fracture was healed and the right wrist showed a well-aligned distal radio ulnar joint.  The plaintiff would have difficulty in returning to his pre-accident job because of weak right hand grip.  He could not carry objects exceeding 15 kg in weight for more than 14 minutes, after which his forearm and hand felt weak and tired.  There was residual pain of the right forearm and wrist especially on supination.  He had been on sick leave for 7 months and physiotheraphy for 6 months.  He was awarded $200,000.

49. In Li Wan Kei v. Hyundai Engineering & Construction Co. Ltd., HCPI 577/2004 (decided in 2006).  The Plaintiff had abrasion with mild swelling and tenderness over the right elbow, right hip and left knee.  Active range of movement of the affected joint was found to be full.  He was hospitalized for one month.   There was a small ossicle at medial epicondyle of his right elbow and swelling of medial collateral ligament of his left knee.  There was residual constant numbness over the whole length of his right arm, left leg and back pain.  There was difficulty in returning to the pre-accident job at construction sites.  The Plaintiff was awarded $375,000.

50. In Chow Wai Ming v. Chan Yuk Charm, HCPI 1111/1996 (decided in 1999).  The Plaintiff suffered a comminuted fracture of the proximal humerus of the right shoulder which was treated by a collar and cuff sling.  He was left with deformity of the humeral head causing bony impingement on a tendon in the shoulder, prolonged course of physiotherapy with limited improvement.  He refused surgery.  There was pain on abduction, with some loss of strength in the arm.  The Plaintiff was awarded $300,000.

51. In Tsui Kwan Fai v. Goldfield N & W Construction Co. Ltd., DCPI 97 of 2006 (decided in 2007), the Plaintiff was diagnosed to have closed fracture of the head of the right radius and soft tissue injury to the right wrist and right shoulder.  He was treated with plaster immobilization of his right hand.  He had mild pain on forearm rotation, over distal radius and full right wrist motion.  He got sick leave for 9.52 months.  The injuries might develop post-traumatic arthritis of the right elbow, deformed articular surface of the radial head caused by the fracture, progressive pain and stiffness of the right elbow.  The Plaintiff was awarded $300,000.

52. The Plaintiff’s injuries fall into the lower end of the serious injury category.  I award a sum of $250,000 under this head.

B. Pre-Assessment Loss of Earnings

53. No issue turns on the loss in the 6 months’ sick leave period which the Defendants agree to pay. 

54. The Plaintiff additionally claims for damages up to the date of the assessment, i.e. for about 6 ½ years tabulated as follows:

	Period	Computation	Amount
Job A at Yew Chung
A1.	27.06.03 – 31.12.03 (sick leave)	Salary deduction by Yew Chung	$41,503
A2.	01.08.04 – 31.07.05	($17,460 –  $8,730) x 12	$104,760
A3.	01.08.05 – 31.07.06	$18,570 x 12 - $9,285 x 3	$194,985
A4.	01.08.06 – 31.07.07	$19,510 x 12	$234,120
A5.	01.08.07 – 31.07.08	$20,485 x 12	$245,820
A6.	01.08.08 – 30.11.09	$22,263 x 16	$356,208
		Sub-total for Job A	$1,177,396
Job B as part-time lecturer in VTC/LWL
B1.	01.09.04 – 30.11.09	($159,562 x 5.25 yrs) - $31,277	$806,424
		Sub-total for Job B	$806,424
Job C as part-time lecturer in CU
C1.	27.06.03 – 30.11.09	($84,300 /12 x 77 months) - $13,460	$527,465
		Sub-total for Job C	$527,465
Job D as part-time lecturer in PU
D1.	27.06.03 – 30.11.09	($32,910/12 x 77 months) - $46,284	$164,888
		Sub-total for Job D	$164,888
Grand total for Jobs A-D			$2,676,713

55. The Plaintiff has received total earnings of $295,793 as summarized by Ms. Tsang:

(i)  $91,025 (i.e.$11,640 + $32,870 + $46,515) from Hong Kong Institute of Education;

(ii)  $21,372 from Open University;

(iii)  $180,396 for writing books and royalty;

(iv)  $3,000 for the speech at Shun Sang Kindergarten.

56. Her total loss of earnings therefore comes up to $2,380,920.  I accept the computation to be correct but the issues are:

B(i)  Whether or not the Plaintiff was able to work as a kindergarten teacher?

B(ii)  Whether or not Yew Chung changed the Plaintiff’s full-time employment to part-time as a result of her residual disabilities?

B(iii)      Whether the Plaintiff’s resignation from Yew Chung was a consequence of her residual disabilities?

B(iv)      To what extent should the Defendants be liable for the loss of earnings arising out of her resignation?

B(v)  Whether the non-renewal of part-time jobs was a consequence of her residual disabilities?

B(i) Whether or not the Plaintiff was able to work  as a kindergarten teacher?

57. Ergonomics could deal with the situations described in paragraph 17(i) and (ii) but itcan hardly meet a teacher’s need to use the arms/hands, however contingent, to protect children from danger in paragraph 17 (iii) to (v).  When supervising students in motor activities up on a high rack, the Plaintiff might be required to hold children at a level above her head.  It is true that when children got stuck high up, even a teacher in her fully fit state could not get him down.  A teacher would persuade him to come down step by step to, say, the level of his teacher’s shoulder for the latter to hold him.  Even so, one can foresee situations where a child was so panic stricken that the Plaintiff could not wait but had to hold her hands above her head to secure him and take him off the climbing rack.  The Plaintiff impresses me as a person with a strong sense of responsibility.  With the welfare of the children in mind, she would not care what muscle, what posture or what force she was applying.  She would hold them whenever the need arose.  This need is greatest when children are at K1 and reduces as they progress to K2 and K3.

58. Mr. Gidwani for D3 compared the Plaintiff’s disabilities to that of a pregnant woman.  I do not think that comparison was justified.  A pregnant woman has a limited period of “disabilities” but this did not appear to be the case of the Plaintiff.  It would be more appropriate to compare her to someone shorter than her.  That person’s arms might not be able to reach as high as the top of the climbing rack but that would not per se make her an unfit kindergarten teacher.

59. Moreover, the Plaintiff had worked at Yew Chung for almost 2 years after the accident.  The school had knowledge of her accident and sick leave.  I accept that the situations described in paragraph 17 had happened.  If situation 17(v) were to illustrate the fact that she could not lift a child above her head, help came in time and the school had not dismissed her.   Despite being informed that she had resigned, the doctors stated that she was able to return to work at a kindergarten and I accept their finding.

B(ii)Whether or not Yew Chung changed the Plaintiff’s full-time employment to part-time as a result of her residual disabilities?

60. The change from full-time to part-time was initiated by Yew Chung.  If the Plaintiff’s inability to discharge her duties was the cause for the change, I do not think Yew Chung would have required the Plaintiff to teach the most difficult class (K1).  Neither would it offer to pay severance/long service pay.  Moreover, the penultimate paragraph in the letter from Yew Chung stated, “We understand that this is a stressful time for many of us.” The suggestion showed that some other teachers or even the school were also affected by the exercise. 

61. I find that the Plaintiff’s disabilities were not the cause of the change to part-time teaching.  To this extent I differ from the view of the Plaintiff as stated in paragraph 18 above.   The loss arising out of this change is not recoverable.

B(iii)Whether the Plaintiff’s resignation from Yew Chung was a consequence  of her residual disabilities?

62. The Plaintiff’s devotion to early childhood education can be seen from the way she upgraded herself from a Form 5 graduate to University graduate in education within 15 years. By 2003, she was the only person who had the highest qualification among the local teachers in Yew Chung. She had extensive experience in kindergarten education and had even been a principal.  Her career developed to such a stage that she has become a course coordinator/programme planner of early childhood education and an experienced trainer of principals, teachers and staff of kindergartens.

63. She enjoyed high income for a person of her background, with a stable income from Yew Chung and her part time jobs, which was not permitted even for a full-time university guest lecturer.  To resign meant losing subsidized school fees (totalling about $2.4 million) for both children up to the end of their secondary school education.

64. She accepted the change to part-time employment instead of reaping the severance pay.  This was not consistent with someone who wanted to malinger

65. Even after she resigned, she continued to seek employment in the education field.  Writing books were on a topic most familiar to her.

66. All of these point to a person who would not leave kindergarten education without good reason or without having secured her future employment or income.

67. Counsel for D1 suggested that the Plaintiff resigned to spend quality time with her children who were then aged 10 and 8.  I cannot see any evidential foundation for this suggestion.  The Plaintiff had been working full-time for 12-13 hours a day and even on Saturdays before the accident and there did not appear to have been any coping difficulty on her or her children’s part.  Assuming the suggestion to be true, I cannot see why she did not cease teaching after the preceding academic year but  “abandoned” her young students only 3 months after a new academic term had started.

68. Counsel for D3 suggested that the Plaintiff resigned to embark on a new venture of writing children’s books.  Again, there is no evidential foundation.  There was nothing to show that the Plaintiff anticipated the contract to write books and that contract was one-off.  The remuneration was not comparable to her stable, well-paid and well favoured job.

69. I therefore reject the 2 suggestions of defence counsel.  I find that the Plaintiff resigned because of her personal perception that the residual disabilities prevented her from coping with her work at Yew Chung.  The school had not found her unfit as a teacher because of any residual disabilities.

B(iv) To what extent should the Defendants be liable for the loss of earnings arising out of her resignation?

70. The Plaintiff’s resignation broke the chain of causation. 

71. The Plaintiff had to rely on hearsay evidence obtained from principals and friends working in kindergartens to show that she had difficulty finding a job.  I accept that she had been advised to give up her job in a kindergarten.  However, there was then no other evidence of the Plaintiff’s trying out other kindergartens, not even recently. (Note: the assessment hearing was 4 years after her resignation.)  This contrasted starkly with the keen attitude displayed in her applications to the universities and educational institutes which equally did not provide sufficient ergonomics. 

72. The Court may of course grant an additional few months’ of loss of earnings after the formal sick leave has expired: Cheng Lai Kuen v. Nan Fung Textiles Ltd [1998] 2 HKC 730; or to take into account the difficulty of seeking jobs in a poor economic climate: Iau Kau v. Wan Kei Geotechnical Engineering Co. Ltd. & others [2002] 4 HKC 76.  However, these authorities are not applicable where the Plaintiff resigned 2 years after the accident from her previous employer.  The Defendants should not be liable for the loss of earnings arising from her resignation.

B(v) Whether the non-renewal of part-time jobs was a consequence of her residual disabilities?

73. The Plaintiff lost all of her pre-accident part-time jobs as part-time lecturers.  She had persistently applied to various institutes but did not receive offers for lecturing.  No reasons were given.  Even the Plaintiff’s hearsay evidence was that universities preferred to use their own lecturers as supervisors. On the other hand, she managed to open up new opportunities with the PU, the Open University and the Hong Kong Institute of Education as field work supervisors. 

74. Ms. Tsang, her counsel, submits that the market or job opportunity was small or limited.  It was likely that every person in the Plaintiff’s field might have already learned of her accident or injury and thus was reluctant to offer any job to the Plaintiff. I cannot find evidence to that effect. 

75. Defence counsel commented that the Plaintiff has not called the various institutes to explain why she was not re-employed by them.  I doubt if any institute would testify that it was due to the Plaintiff’s disabilities and run the risk of prosecution or a claim for damages for disability discrimination.

76. I have studied the information available.  The Plaintiff’s relationship with CU lasted from 1999 to 2003, just after the accident.  With VTC/LWL, it lasted from 1999 to 2005.  I cannot find any evidence that these institutes had promised any continuity of employment.  There is no evidence of a causal link between the failure to employ the Plaintiff and her residual disabilities.  At best, there was only one instance of a complaint from a helper connected with the Plaintiff’s disabilities but that was not sufficient to enable to establish the causal link aforesaid.

77. With PU, the employment was from 1995 to January 2003 as guest lecturer; then resumed in 2004 as field supervisor till now.  The employer’s returns for 2001/02 and 2002/03 filed by PU show that the Plaintiff was employed between September and January in those 2 years.  During September and January 2003/04, the Plaintiff was still under sick leave and could not be employed by PU.   The fact that PU employed her (though in another capacity) after 2003/04 till now shows, on balance of probabilities, that PU would have employed her but for the sick leave.  Thereafter, I cannot find any causal link between the failure to employ the Plaintiff as part-time lecturer and her residual disabilities.  There might well have been a change of policy on the part of PU that had nothing to do with the Plaintiff’s condition.

78. Notwithstanding that the Plaintiff has done her best to mitigate her loss in terms of the part-time jobs, I do not consider it to be the irresistible inference or the dominant cause that the institutes refrained from employing her because of her disability and I have to differ from her view reflected in paragraph 24 above.  There will be award for loss of earnings only for one academic year in Polytechnic University.  I will award damages to the Plaintiff for those four months in 2003/04 based on the income of the preceding year, i.e. $32,910. 

C. Future Loss of Earnings

79. For failing to prove the casual link between her alleged disabilities and loss of the full time and part time jobs, I am of the view that there should not be any award under this head.

80. For completeness sake, I proceed to consider the quantum of damages under this head in case I am wrong. The Plaintiff is aged 43.  She clearly has a passion for education and stayed within the field even though she had to change institutes.  She took up as many opportunities as she could.  She tried to adjust her previous working pattern to accommodate her disabilities.  But for the accident, the Plaintiff would have maintained a long term contract with Yew Chung worked up to the prescribed retirement age (60) of a teacher.  She would also have continued her part-time jobs.  She would acquire more experience, status and recognition in teaching that would enhance her income. 

81. I agree with Ms. Tsang that the multiplier should be 12.  See:

(i)  Lai Wai Wah v. Wing & Kwong Co Ltd, HCPI 1131 of 2002: male, steel binder aged 41 at the date of hearing; multiplier 12.

(ii)  Tsui Kim Ming v. Charter Form Co Ltd, HCPI 681 of 2001: male, waterproofing mason/foreman aged 43 at the date of hearing; multipler 12.

(iii)  Li Wan Choi v. Choi Wan Hing & anor, HCPI 1200 of 1998, CACV 182 of 2000: male, furniture delivery worker/waiter aged 44 at the date of hearing; multiplier 12.

82. As for the multiplicand, the salary reference of Yew Chung for 2008 can be used for computing the future loss of earnings in connection with a kindergarten job.  The total loss would be $22,263 x 12 x 12 = $3,205,872.

83. If the Plaintiff’s future loss of earnings with regard to her part-time jobs are taken into account, I am content to adopt the pre-accident annual income minus the current income, i.e. ($447,742 - $151,283) x 12 = $3,557,508. 

D. MPF

84. For all pre-assessment and (if allowed) post-assessment loss of earnings, the Plaintiff is entitled to claim 5% for MPF.  This amount to $32,910 x 5% = $1,645.50.

E. Loss of Earning Capacity

85. The amount sought by the Plaintiff is $75,000.  Ms. Tsang submits that the Plaintiff is expected to be less competitive and in a more disadvantageous position in the field as evidenced by the fact that various institutes or previous employers did not offer new jobs to her. 

86. The consideration of this head of damages should be made in two stages: Moeliker v. A Reyrolle & Co Ltd [1977] 1 All ER 9.

“1. Is there a ‘substantial’ or ‘real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life?  2. If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materializes, having regard to the degree of the risk, the time when it may materialize, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

87. Both Defendants dispute this head of claim, replying on the medical reports which state that there is no real or substantial risk that she would lose her pre-accident employment and with no loss of earning capacity. 

88. The Plaintiff lost her kindergarten job on her resignation and hence failed to demonstrate that she could not now return to it.  There was no risk of her losing the present part-time jobs because of her disabilities.  Accordingly I make no award under this head.

F. Special Damages

89. The Plaintiff’s claims and each Defendant’s offer are tablulated below:

90. These items are claimable as a matter of principle.  Some receipts are missing but I accept the Plaintiff to be a truthful witness. I accept her claim for these items and allow them in full.

Deductions

91. As the loss of earnings awarded fell below the personal allowance of the Plaintiff in the amount of $108,000, I make no deduction for tax.

Conclusion

92. The Plaintiff’s complaints of residual disabilities were not supported by objective medical evidence and hence the burden of proof is not discharged.  Her loss of the full-time job in Yew Chung and inability to return to teaching in kindergartens were due to her own resignation and not intolerance of the previous employer.  It broke the chain of causation.  Her loss of part-time jobs as lecturer was not proven to be due to the residual disabilities.

93. The damages awarded are summarized as follows:

94. The agreed 2% p.a on PSLA from the date of the writ (14^th June 2006) to the date of judgment will be awarded.  Interest on special damages are awarded at 4% per annum or half of the judgment rate from the date of the accident to the date of the judgment.  Interest thereafter will be on judgment rate until payment.

95. There will be an order nisi that costs (including costs reserved) be to the Plaintiff to be taxed if not agreed, with certificate for counsel.  Notwithstanding a low level of damages was awarded, there was evidence to show that the Plaintiff’s claim might fall within the jurisdiction of the High Court.  Costs should be on the High Court scale.  Parties are at liberty to apply to vary the costs order within 14 days of the date of this decision.

96. I thank counsel for their able assistance, in particular Ms. Tsang who has assisted her client in putting forth the best case as she could.