PHOOMSA-ART BUNKONG v. MIU CHEE SANG SUNNY

HCPI 925/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 925 OF 2006

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Dates of Hearing :  26 August 2008 and 4 September 2008

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J U D G M E N T

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The Issue

1.  The Plaintiff claimed for damages for over $2 million but settled at $643,239 without admission of contributory negligence.  On what scale is she entitled to costs?

Background

2.  In an accident on 4 August 2005, the Plaintiff’s feet were rolled over by the wheels when the Defendant reversed his vehicle.  She suffered head injury with multiple abrasions over both elbows, left wrist, right knee, right ankle and fracture of medial malleolus.  Emergency operation was done.  She was hospitalized for about 1½ months.  She received out-patient physiotherapy and occupational therapy.  Her sick leave period was 8 months.  About one year after the accident, her condition was considered static by orthopaedic doctors but with residual pain and weakness over the right ankle.  Her psychiatric treatment commenced on 25 October 2006.  She served the writ and statement of claim on the following day.  The statement of damages served together mentioned about emotional, psychiatric or psychological impairment but no medical report on that aspect was served at that time.

3. The statement of damages claimed as follows:

(a)	Pain, suffering and loss of amenities	$450,000
(b)	Loss of earnings
	-    pre-assessment ($10,000 x 16)	160,000
	-    future [($10,000 - $2,000) x 12 x 12]	1,152,000
(c)	Loss of earning capacity ($10,000 x 5)	50,000
(d)	Loss of provident fund	65,600
(e)	Special damages
	-    Medical (past $8,000 + future $86,000)	94,000
	-    tonic food (past $5,000 + future $43,200)	48,200
	-    traveling expenses	51,200
	(past $8,000 + future $43,200)
	Total:	2,071,000

The re-revised statement of damages in January 2008 increased the damages claimed to $2.2 million but such is not important for the purpose of this judgment.

The Legal Principles

4. Where a High Court claim is settled at a sum which is within the District Court jurisdiction, the usual order will be for costs on the District Court scale unless the plaintiff shows that he has a reasonable prospect of obtaining an award in excess of the District Court jurisdiction: Lai Ki v. B+B Construction Co. Ltd., HCPI 63 of 2001; Wong Choi Fung v. Fung Kai Public School operating as Fung Kai Care and Attention Home for the Elderly, HCPI 534 of 2004.

5. The plaintiff’s case should be considered at the highest at the time of issuance of the writ, ignoring the subsequent unfavourable medical opinion produced by the defendant or otherwise: Lo Chuen Chung v. Wong Chun Sing, HCPI 428 of 2005.  Even if it was a borderline case, the High Court scale should apply: Lam Wing Sum Monica v. Tam Ka Kit Joe, HCPI 933 of 2005.

6. However, an argument on costs should not be permitted to degenerate into what amounts to a full argument on the issue of quantum of damages as though the matter were an assessment of damages.  In assessing the value of the claim, disregarding contributory negligence, for the purposes of a costs argument, the court will necessarily take a broad view of the matter.  It will only be on rare occasions that any authority on levels of PSLA or other aspects of damages will be required.  The court will not go into questions of damages in any depth.  See Chiu Tsz Ying v. Hui Ka Chun & another HCPI 590 of 2006, per Saunders J, 18 July 2008.

7. With the above principles in mind, I analyze each head of the Plaintiff’s claim.

Pain, Suffering and Loss of Amenities

8. The Plaintiff sought $450,000 in her statement of damages but Mr. Jim for the Defendant submitted that she should only be awarded $200,000.  The centre points of dispute can be classified into:

(i) The level of orthopedic injury;

(ii) Whether or not the Plaintiff suffered psychiatric or psychological impairment; and

(iii) The quantum of damages.

(i)    The level of orthopedic injury

9. At the time the Plaintiff issued the writ, there was evidence that she was still suffering from severe residual orthopaedic pain and weakness at her right ankle with permanent disabilities expected.  The right leg kick power was only half of that of her left leg.  Walking tolerance was only 30 minutes.  She also experienced injury and pain at lower back, neck and left writs.  She could not stand on the right leg alone without support.  She had to walk with a stick (even in early 2008).  She could not lift heavy load without aggravating her right ankle pain.  She could not lift heavy objects.  She was affected in her domestic duties.  She could not enjoy previous hobbies such as shopping, dining, socializing, paying majong, reading, swimming, hiking and traveling.  Most of these hobbies, I note, do not require standing for long hours and doctors note that the plaintiff is not sporty.  Despite these, I agree that the Plaintiff did experience pain, suffering and loss of amenities.

10. In the subsequent joint reports the prognosis was good.  There was no need for walking aid.  There was good fracture healing.  Doctors on both sides were of the view that the plaintiff should be able to resume her previous work.  However, such evidence did not detract from the fact that at the time of the writ the Plaintiff did have a good claim for pain, suffering and loss of amenities.

(ii)   Whether or not the Plaintiff suffered psychiatric or psychological impairment

11. The Defendant’s main complaint was that in the medical reports supplied with the statement of claim, there was no reference to any psychological treatment received by the plaintiff, nor did they state that the Plaintiff could not resume her work.  Psychiatric reports were served only after the writ was issued.  Notes of the nurse (pre-writ) showed that the plaintiff slept well, had good appetite and there were no symptoms of psychological or mood problems.  There were only occasional mention of headaches which were treated with panadol.  The query was when the real psychological or psychiatric symptoms started.  It was about 15 months after the accident that the plaintiff started to consult doctors who then alleged that she might suffer post-traumatic stress disorder (“PTSD”).

12. Additionally, I noticed that even in the 3 orders made upon checklist review, there was no direction on the filing of psychiatric or psychological reports.

13. Ms. Chih for the Plaintiff, however, pointed out that pre-writ, there were already psychiatric and psychological symptoms.  She was referred by the orthopedic clinic for psychiatric treatment and did attend the Kowloon Hospital Psychiatric Clinic for poor sleep the day before the writ was issued.  She had symptoms of poor sleep, low mood, tearfulness, easy irritation, poor concentration, poor memory, worries, headache, fear of road traffic and inability to cope with housework.  The Psychiatric Clinic diagnosed her as suffering from PTSD.  There was follow up.  A subsequent clinical psychologist report confirmed similar symptoms.  She was unable to resume her work in the store.  Psychiatrist at the Kowloon Hospital who attended the Plaintiff since 25 October 2006 was still of the opinion as at 14 February 2008 that the Plaintiff was suffering from PTSD.  There had been improvement on the part of the Plaintiff and psychological treatment focused on her mood and avoidance behaviour.

14. As at the date of the writ, the Plaintiff had pleaded her own psychiatric or psychological symptoms, cognitive impairment and bad temper.  The statement of damages was detailed, indicating that the legal advisers had considered the issue seriously and would not risk understating their client’s case for lack of a medical report a day after when the writ was issued.  Taking the Plaintiff’s case at its highest, I am of the view that she could have made out a case of psychiatric or psychological impairment at the time of the writ.

(iii)  Quantum of PSLA

15. On quantum, I have been referred to a number of authorities by both sides.  The damages awarded under this head for similar injuries ranged from $200,000 to $450,000 for orthopedic injuries.  For psychiatric/psychological impairment, the damages were for $400,000 to $550,000.

16. As pointed out by Ms. Chih, authorities cited by Mr. Jim were on orthopedic injuries alone.  Having considered the authorities, I am of the view that there was reasonable prospect for the plaintiff to recover damages in the region of $450,000.  Even if only the orthopaedic injuries were considered, the Plaintiff could easily justify a claim for PSLA at $300,000.

Loss of Earnings

17.                                     The Plaintiff claimed to be employed as an assistant at a grocery shop selling vegetables run by her sister.  She had to pull baskets of vegetables and sell them.  She also acted as cashier.  She had to stand while working.  She worked 10 hours per day at $350 and was paid every 7-10 days.  Her monthly income was about $10,000.

18. The Plaintiff claimed that she could no longer do the same work after the accident.  As supported by the evidence of her sister, the gross business income of the grocery shop dropped by 40% after the Plaintiff met with the accident, notwithstanding that a replacement worker was engaged and there was voluntary assistance from the sisters-in-law.

19. The Defendant took issue both on the Plaintiff’s monthly income and her inability to return to the pre-accident work.

20. Insofar as income was concerned, I accept that the Plaintiff used to receive cash income and could not provide tax returns.  With cash income, it is not unreasonable for someone to spend some and deposit some into her bank account.  Even on Mr. Jim’s own calculation, the Plaintiff was able to deposit, on average $7,250 per month into her bank account in the past 16 months before the accident.

21. In her application for social welfare allowance after the accident, the Plaintiff claimed that she had 2 rest days (presumably per month) without pay.

22. Judging from the high level of deposits and even accepting that she worked 28 instead of 30 days per month, the Plaintiff’s monthly income would have been $9,800.  It was not unreasonable for her to assert that she could earn about $10,000 per month.

23. The Plaintiff was granted 8 months’ sick leave.  It would not be unreasonable to give an allowance of a few (say, 4) months to adjust.  Her loss of earnings pre-assessment should be $120,000.

24. Given her job nature, I accept that physical strength of the knee and ankle played an important role in the Plaintiff’s work.  After her sick leave, there was no reason why she could not return to the pre-accident work.  Unlike e.g. the employee in Khan Amar v. Cheung Ying Construction & others, HCPI231 of 2005 and CACV 153 of 2006, this was not a case of an employer being unwilling to employ someone of reduced working ability.  Here was a sister “employer” who could have shown some tolerance to the physical condition of the Plaintiff.  The alleged lack of cognitive skills such as concentration or calculation power were not important since written calculations could be placed in the store to assist her.  Even if the Plaintiff could not work with full force, she should still be able to offer some help, perhaps at a reduced daily wage.

25. The issuance of the writ was well past the sick leave period.  The alleged drop in 40% gross business income of the shop for lack of the Plaintiff’s assistance would have been known.  There was no evidence of what job the plaintiff had attempted to find or had done after her sick leave period had ended.  The assertion that she could only earn $2,000 per month was entirely without basis.  There was no mitigation of damages on the plaintiff’s part.

26. At the time of the writ, I would consider that it was more reasonable to assess the Plaintiff’s future loss of earnings to be a drop of about 40%.

27. The Plaintiff was aged 34 at the time of the accident.  The multiplier of 12 suggested by the Plaintiff was reasonable.  At the time of the writ, a more realistic claim for loss of future earnings would have been:

 $4,000 x 12 x 12 = $576,000

Loss of Earning Capacity

28. The Plaintiff is a Thai lady with limited knowledge of Chinese.  She had been in Hong Kong for 10 years at the time of the accident.  Her pre-accident job required low skill but physical effort.  Her limited job mobility was caused more by her Thai background and low education standard.  Given the family relationship with her employer, there should be no difficulty in her returning to the job.  Mr. Jim submitted that 3 months were sufficient to compensate her handicap in the job market.  I agree, although I am prepared to say that a claim for up to 6 months would not be unreasonable.

Loss of Mandatory Provident Fund

29. There was no evidence adduced to prove that before the accident the Plaintiff had been making contributions to MPF.  Given the Plaintiff’s job nature, I do not think a solicitor should accept the client’s word at face value without at least some proof even at the time of issue of the writ.  The Plaintiff has no reasonable prospect of recovery of this head of claim.

Special Damages

30. I do not think the past medical expenses, tonic food and traveling expenses were unreasonable.  However, I cannot see why medical expenses could be so expensive given that the Plaintiff had been consulting government hospitals in the past.  Nor do I see how tonic food could assist and how one could reasonably demand for damages beyond an extra $5,000.  As for travelling expenses, given that the Plaintiff had improved by the time of the writ, I can hardly see the need for anything beyond an extra $5,000.

Conclusion

31. In summary, the damages which the Plaintiff would have reasonable prospect of recovery at the time of the issuance of the writ were:

32. There had been exaggeration in framing the damages claimed.  However, faced with a possibility of the client having psychological impairment and had started to receive treatment the day before the statement of claim, the solicitors might well have been in a dilemma as to where to launch the claim even though the relevant medical reports were not at hand.  I am of the view that taking the Plaintiff’s case at its highest at the time of the writ, this was not an obvious District Court case.

33. Even taking recoverable damages for items (a) to (c) at the lower end of the scale and ignoring all the special damages, the Plaintiff would at worst have a borderline case.  Subsequent non-favourable medical evidence should not be counted against her.  Overall, I cannot say that the Plaintiff or her solicitors have maliciously launched the claim in the High Court.