LAM WAI CHUN v. TAM CHI WAI AND ANOTHER

HCPI 1352/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1352 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages in respect of a claim brought by the plaintiff for personal injuries suffered by her as a result of a traffic accident which took place on 8 November 1997 at 6:30 p.m. along Fanling Highway. Interlocutory Judgment was entered by consent of the parties on 15 November 2000 with damages to be assessed. This is the assessment of damages.

2. At the time of the accident, the plaintiff was a front seat passenger in a private car driven by her husband, So Tim. The car in which the plaintiff was travelling had stopped along Fanling Highway due to the traffic condition ahead. Some ten seconds after the plaintiff's car had stopped, another car, driven by the 1st defendant and owned by the 2nd defendant, collided into the plaintiff's car from behind. The impact of the collision was such that it pushed the plaintiff's car forward causing it to hit the car in front of it. As a result of that collision the plaintiff sustained personal injuries.

Physical injuries and treatment

3. As a result of that collision, the plaintiff, who was at that time 51 years old, immediately lost consciousness. She was taken by ambulance to the Fanling Hospital where she regained consciousness. Later on the same day she was transferred to the neurosurgical ward of Prince of Wales Hospital. She was found to have a laceration of her left parietal scalp which required suturing. X-ray of the chest revealed fracture of the right fourth, fifth and seventh ribs as well as the left seventh rib. CT brain scan did not show any bony fracture or haemorrhage of the skull or brain. The plaintiff was treated conservatively with no surgical operation performed. While there was no permanent neurological deficit as a result of the injury to the plaintiff, there was residual Post Concussional Syndrome comprising of dizziness and vertigo.

4. The plaintiff was transferred from the Prince of Wales hospital on 11 November 1997 to the Cheshire Home where she remained until she was discharged on 22 November 1997. After discharge from hospital, the plaintiff attended outpatient follow-up. She was last seen at the Neurosurgical Clinic of the Prince of Wales hospital as an outpatient on 18 March 1998. At that time, follow-up X-ray of the chest showed all the fractured ribs to have healed.

5. After discharge from hospital the plaintiff had attended regular physiotherapy sessions until 14 July 1998.

6. There is no dispute between the parties as to the physical injuries and treatment given to the plaintiff as stated above.

7. It is also common grounds between the parties that the plaintiff resumed her pre-accident work as a tea lady with a bank in January 1998 and continued in that work for some six months. Unfortunately for the plaintiff, but unconnected to the accident, she was diagnosed to be suffering from breast cancer at the end of June 1998.

8. From August 1998 onwards, the plaintiff started to consult, firstly a psychiatrist in private practice and then a psychiatrist in the Pamela Youde Nethersole Eastern Hospital. Basically the diagnosis by the psychiatrist in the Pamela Youde Nethersole Eastern Hospital was that the plaintiff was suffering from an Adjustment Disorder and depressive illness arising from her worries and concerns of her breast cancer.

Disputed psychiatric condition

9. It is common grounds between the parties that after the car accident the plaintiff had suffered Post Concussional Syndrome which manifests itself in the form of dizziness and headaches.

10. There is also no dispute between the parties that after the car accident (but before she was diagnosed to have breast cancer) the plaintiff was also suffering some form of psychiatric condition which manifests itself in the form of depression, anxiety, sleep disturbance as well as irritability. This psychiatric condition quite obviously took a turn for the worse after the plaintiff was diagnosed to have breast cancer in June or July 1998.

11. The dispute between parties is twofold. Firstly there is a dispute as to the severity of the psychiatric condition. The plaintiff says that her psychiatric condition tantamount to a Post Traumatic Stress Disorder ("PTSD"). On the other hand the defendants say that this is only an Adjustment Disorder.

12. Secondly, the plaintiff contends that this PTSD was mainly caused by or resulted from the car accident itself while the defendants maintain that the Adjustment Disorder arose because of the breast cancer suffered by the plaintiff.

13. In this respect the plaintiff largely relies on their expert, Dr Benjamin Lai, who had examined the plaintiff in October 1999 and again in July 2001. His evidence was he came to the conclusion that after the accident the plaintiff was suffering from both Post Concussional Syndrome as well as PTSD. This psychiatric state of the plaintiff continued until she was diagnosed to have breast cancer in June or July 1998 when the discovery of breast cancer aggravated her psychiatric condition. He assessed the plaintiff's present psychiatric condition to have been caused 85% by the car accident with the rest due to the breast cancer.

14. The defendants rely on their expert witness Dr S.Y. Chung. Although Dr Chung agreed that after the car accident the plaintiff had shown symptoms of both Post Concussional Syndrome as well as PTSD, he was of the view that because the plaintiff had almost instantaneously lost consciousness when the car in which the plaintiff was travelling was rammed from behind and therefore the plaintiff did not "experience" any traumatic event for herself, the diagnostic criteria for PTSD had not been completely fulfilled. He further took the view that because the plaintiff did resume her pre-accident work sometime in January 1998 and continued in that work for the next six months, whatever psychiatric condition she may have had at that time can only be described as mild. Moreover as the plaintiff only began to consult psychiatrists, both private as well as in a public hospital, after the diagnosis of her breast cancer was made he came to the view that the main cause of the plaintiff's present psychiatric condition was due to the breast cancer rather than the traffic accident.

15. Under cross-examination Dr Chung agreed that the psychiatric condition of the plaintiff after the accident was aggravated by the discovery of breast cancer such that her psychiatric condition became what it now is.

16. In so far as the present psychiatric condition of the plaintiff was concerned there is little dispute between the experts. Her present complaints are persistent pain over chest and back, headaches and dizziness. She is anxious when traveling in a vehicle but not in the MTR. She is irritable, bad tempered and cannot sleep well. She is depressed and worried about her family members, in particular her daughter.

Disputed Orthopaedic condition

17. There is also a dispute between parties as to whether or not the plaintiff had suffered a whiplash injury to her neck due to the traffic accident in November 1997. The dispute arises in this way.

18. When the plaintiff was re-examined by her own orthopaedic expert, Dr David Fang, in July 2001, he noticed from X-rays taken at that time that there were degenerative changes to the plaintiff's cervical spine which degenerative changes had not been apparent in X-rays taken in August 1999. From these degenerative changes and from the fact that in the accident the car in which the plaintiff was travelling was hit with severe force from behind, Dr Fang came to the conclusion that the plaintiff may well have suffered a whiplash injury during that traffic accident but which only became apparent when he re-examined her.

19. Dr Fang's opinion in this respect is disputed by the orthopaedic expert of the defendants Dr David Cheng who holds the view that whilst theoretically it is possible for the plaintiff to sustain a whiplash injury in the traffic accident considering that the car in which the plaintiff was travelling was hit with force from behind, however, that situation is most improbable in the present case due to the fact that the plaintiff had never complained of any serious neck pain for the whole time after that traffic accident. On that basis, Dr Cheng's opinion is that the degenerative changes seen in the recent X-rays to the plaintiff's cervical spine is no more than normal degenerative changes unconnected to the traffic accident.

Pain suffering and loss of amenities

20. On the facts of this case, I find that the plaintiff did suffer an Adjustment Disorder at some time soon after the car accident. After she was diagnosed as having breast cancer, her psychiatric condition deteriorated but that deterioration was due to her realization that she has breast cancer and was neither due to the injury which she sustained as a result of the car accident nor the car accident itself.

21. Secondly I also find that the plaintiff did not suffer any whiplash injury as a result of the car accident. It would be most surprising if she did by reason of the fact that she had never complained of any neck pain or symptoms indicative of a whiplash injury.

22. In making the above findings I accept the evidence of both the medical experts called by the defendants and the reasons given by them in coming to the conclusions that they did.

23. I shall therefore assess the award for pain suffering and loss of amenities to the plaintiff based on the findings which I have made above.

24. The plaintiff was hospitalized for some 14 days. She suffered four fractured ribs. She was on sick leave for two months. When that sick leave expired she returned to her pre accident work as a tea lady at a bank in Central. She received physiotherapy until July 1998.

25. I do accept that the plaintiff did have residual chest pain as a result of her fractured ribs but those fractures had healed by the middle of March 1998, just over four months after the accident. The residual chest pains would have considerably subsided by then.

26. She also had low back pain and continued with physiotherapy until July 1998. That is probably an indication that her back pain had reached a manageable level by July 1998.

27. As for her Adjustment Disorder, it would most likely have subsided with time such that by the time she returned to work and during the six months following, there was very little of it left.

28. Taking into account all of the above, I come to the conclusion that the injuries suffered by the plaintiff as a result of the car accident does not even come within the "Serious Injury" category as it is understood and defined in the case of Lee Ting Lam. In all the circumstances, a reasonable award for pain and suffering would be $300,000.

Pre-trial special damages

29. Medical expenses are agreed at $2,008.

30. Travelling expenses (in the amount of $6,020) are claimed by the plaintiff for three follow up sessions at the hospital and 21 physiotherapy sessions at Southorn Centre all by taxis. However, in her evidence, she said she had taken a tram down to Southorn Centre from her place of work in Central for all the physiotherapy sessions and from there back to her work place by tram.

31. There is also a claim for $2,040 in respect of travelling expenses by visiting relatives.

32. In the light of the evidence of the plaintiff which does not bear out her claim for traveling expenses as pleaded at least for the 21 sessions for physiotherapy, I shall allow an amount of $2,015 which is conceded by the defendants to cover all the travelling expenses claimed.

33. Next there is a claim for Chinese medicine and tonic food in the sums of $168 and $5,000 respectively. A receipt has been produced showing birds nest was purchased in late November 1997 - probably shortly after the plaintiff was discharged from hospital. I shall allow this claim in full.

34. $800 is claimed for damaged clothing and shoes. This will also be allowed in full as the amount appears reasonable.

35. The plaintiff also claims loss of earnings in the sum of $209,110 as well as the value of gratuitous service of her husband in the sum of $89,000. This claim is put on the following footing by the plaintiff :

(a) Before the accident, the plaintiff worked as a tea lady earning $5,697 per month with the Union Bank of California, N.A. Hong Kong Branch ("UBC");

(b) After her sick leave expired, she returned to her pre-accident work at UBC for some six months until July 1998;

(c) She stopped working at UBC in July 1998 (after she was diagnosed to have breast cancer);

(d) The plaintiff formally resigned from UBC in March 1999 at which time her salary was $6,135; and

(e) The plaintiff claims full loss of earnings for the entire pre-trial period after her resignation from UBC on the basis that her psychiatrist had advised that the plaintiff was not fit for any work because of her psychiatric disorder.

36. Having made the finding above that the plaintiff's psychiatric disorder was caused as a result of her realization of her breast cancer and not due to the car accident or any injury arising therefrom, I make the further finding that the plaintiff's resignation from UBC came about also as a result of her breast cancer and was not caused by the car accident or the injuries arising therefrom.

37. Accordingly, the only pre-trial loss of earnings which the plaintiff would be entitled to claim would be between the date of the accident up to the expiration of her sick leave. For those two months when she was off work, the loss of earnings comes to $11,394.

38. As for the claim relating to her husband's loss of earnings, it is put on the basis that after the husband had recovered from the accident himself (the husband being the driver at the time of the collision), firstly, the plaintiff, in her own condition, required full attention and care from her husband and secondly, the husband had to take up all the household chores which before the accident were done by the plaintiff. The value of that service performed by the husband is put at the market rate of a part time domestic helper at $2,000 per month for the full pre-trial period.

39. In line with my earlier findings made in this case, I take the view that where the plaintiff was able to resume her pre-accident work two months after the accident, it is unreasonable to allow such a claim for the entire pre-trial period. Even accepting that the husband would probably have to carry a large share of the housework previously performed by the plaintiff after the accident, it is only reasonable to assume that that condition would not go beyond the time when the plaintiff was able to resume her pre-accident job at UBC.

40. Accordingly I will allow $4,000 under this head of claim, being at the rate of $2,000 per month suggested by the plaintiff but only for two months.

41. At the trial, I gave leave to the plaintiff to amend the Revised Statement of Damages to include a further claim under Special Damages for psychiatrist fees in the sum of $6,000. This fee was incurred when the plaintiff consulted a private psychiatrist in August 1998. Once again in line with the findings made by me above, her psychiatric condition which led the plaintiff to consult a private psychiatrist in August 1998 was not caused by the car accident or her injuries in relation thereto. Therefore her claim for these fees in the sum of $6,000 is disallowed.

42. The total pre-trial special damages comes to $25,385.

Future Loss

43. The plaintiff has claimed for future loss of earnings including lost benefits under Mandatory Provident Fund; future loss arising from the husband's service and future medical care, medication and psychotherapy due to her continuing psychiatric problem.

44. I need say no more than as a result of my findings above, all the claims for future losses are refused.

Interests

45. Interests will be awarded for general damages for pain suffering and loss of amenities at 2% from the date of the Writ; and for all pre-trial special damages at half judgment rate from the date of the accident.

Summary of assessment

	$
PSLA	300,000
Interest thereon	5,500
Pre-trial specials	25,385
Interest thereon	5,353
Total :	336,238
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46. The total amount assessed inclusive of interests comes to $336,238.

47. In the light of the amount of damages assessed in this case, I would like to say that the claim by this plaintiff is put at over $2.8 million. It may be thought by some plaintiffs or even their legal advisers that by inflating the claim put forward they may, at the end of the day, be awarded a higher quantum by the courts due to that inflated claim. The sooner that myth is dispelled the better it is for all concerned. Claims in these courts are determined not on sympathy but on their merits and on the evidence. It is certainly not determined by the amount initially claimed by the plaintiff if that is an inflated amount nor, for that matter, by the Answer of defendants if they should try to swing it to the other extreme unreasonably.

Order

48. There will be judgment for the plaintiff against both defendants for the sum of $336,238.

Costs

49. In view of the amount assessed, there will be a cost order nisi that the defendants pay the costs of the plaintiff to be taxed on District Court scale if not agreed with certificate for counsel.