XCHRX TSE WING YIN, IRENE v. CHAN WAI KEUNG AND ANOTHER

HCPI 195/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 195 OF 2000

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ASSESSMENT OF DAMAGES

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1. The plaintiff's claim is for damages for personal injuries suffered by her in a traffic accident on 23 February 1997, in which she was the backseat passenger in a private car which was struck forcefully from behind by a light goods vehicle driven and owned by the 1st and 2nd defendants respectively.

2. Interlocutory judgment has been entered against both defendants on 5 April 2000 with damages to be assessed. I now deal with the assessment of damages.

Plaintiff's injuries

3. The plaintiff was aged 35 at the time of the accident and there is no dispute that she suffered a severe "whiplash injury" to her cervical spine as a result of the accident. She was taken to the Adventist Hospital immediately after the accident. X-ray revealed no fracture and she was given drugs and discharged. The next day, the plaintiff consulted Dr Louis Hsu complaining of neck and back pain, limitation of neck movement and also headaches. Later, her complaints extended to numbness in the 4th and 5th fingers of her left hand and pain radiating down her left leg from her buttock region.

4. In June 2000, well over three years after the accident, Dr Hsu stated in his report that the plaintiff was still experiencing the pain and that it was difficult to say exactly how much longer the pain will persist but gave a rough estimate that it may be for a further two or three years. He found some movement between the 4th and 5th cervical vertebrae and commented that it was likely that the pain is coming from the nerves exiting at this level. If that was the cause of the pain, he stated that a spinal fusion to block the movement at that level may relief the plaintiff of her pain.

5. Dr Hsu further assessed that, assuming her condition did not improve, the plaintiff's permanent incapacity from the orthopaedic injury is 5% of the whole person.

6. At the trial, her main complaint was still the severe pain which she was still experiencing well over three and a half years after the accident. This pain, according to the plaintiff, has effectively prevented her from carrying out her work as a professional photographer as effectively and on the scale that she would have wanted to but for the accident. The pain has also interfered with her social and personal life and has caused her to experience severe moods of depression.

7. Evidence given by Dr Singer, the plaintiff's psychiatrist, suggests that the plaintiff is suffering from post-traumatic stress disorder, post-concussional syndrome and depressive disorder.

8. On the other hand, doctors called by the defendants have suggested that the plaintiff is over-reacting to the pain that she is experiencing and the psychiatric opinion of Dr Chung See Yuen is that while he agrees that the plaintiff is suffering from post-traumatic stress disorder, he says that she is not suffering from post-concussional syndrome nor can her condition be categorised as depressive disorder but should be termed an adjustment disorder with depressive moods. The reasons given by the defendants' doctor for coming to these conclusions are, firstly, there is no structural basis upon which the severe pain which the plaintiff claims to be experiencing can be explained; secondly, there is no evidence of any head injury to suggest she has any post-concussional syndrome and thirdly, her depression is not severe enough to be termed a depressive disorder.

9. In so far as her pain is concerned, all the doctors are agreed that there is no neurological lesion or deficit and very often that is the case with whiplash injury where only soft tissue damage occurs. However, Dr Chung did agree in cross-examination that pain could be psychological and that the threshold for pain may be lessened for an individual suffering from mood depression. Despite that concession by Dr Chung, his opinion that the plaintiff was over-reacting in so far as her pain was concerned was based entirely on the findings of Dr Chun that the pain could not be explained on any structural basis. Furthermore, it was not until his second report that the suggestion of over-reaction on the part of the plaintiff was mentioned for the first time.

10. I have also to consider the plaintiff as a witness, in particular her credibility in relation to the pain which she says she is still experiencing almost four years after the accident. Having seen her under cross-examination, I have formed the view that she is an honest witness doing her best to answer the questions in a straightforward manner. I have no hesitation in accepting her evidence that she is still feeling much pain from the injury she received. It may be subjective and it may be psychological, but the pain is there.

11. As for the post-traumatic stress disorder, this is agreed to by the doctors, both for the plaintiff and the defendants.

12. Dealing with the post-concussional syndrome, what is agreed between all the doctors is that one of the necessary factors to cause this is a head injury with significant concussion. In the present case, there is no evidence of any head injury. Indeed, the plaintiff's own doctor, Dr Hsu gave evidence that he did not find any head injury despite having examined her neck and head shortly after the accident. The plaintiff told the doctors at the Adventist Hospital as well as Dr Hsu that she did not lose consciousness after the accident, she was unable to say that she had suffered any head injury less still any concussion to her head.

13. On the other hand, Dr Singer, who raised the issue of post-concussional syndrome, when cross-examined on this matter, said that there could be a blow to the head without any outward sign of injury.

14. I find on the evidence that, more likely than not, there was no blow to the head nor any head injury with significant concussion. Accordingly, I do not accept that there is post-concussional syndrome with the plaintiff.

15. Lastly, I turn to deal with whether the plaintiff has depressive disorder or an adjustment disorder with depressive moods. In this respect, I note firstly that what is important is the actual condition of the plaintiff and not how it is medically termed; and secondly, that the difference between Dr Singer and Dr Chung is really one of degree.

16. From all the evidence, I find that the plaintiff did, for a period of time after the accident, feel very depressed. This arose from the pain she was experiencing which affected greatly her work and her business. It also affected her personal and social life. Moreover, her depression was not helped by the breakup of her relationship with her boyfriend some two months after the accident which no doubt had a further effect on her. As there is insufficient evidence before me as to the cause of that breakup, I make no specific findings on it.

17. On the other hand, I accept the evidence of Dr Chung that the plaintiff is not in a morbid state and there is no suicidal ideas. Furthermore, although she may not be able to carry out her work after the accident to the level that she had wanted had it not occurred, she is still highly motivated in her work and still desires to keep her name in the market by continuously giving quotations for assignments when approached. I also accept that she has, after the accident, travelled to Vietnam for holiday and had, during that trip, tended to an old lady. Even though she is more withdrawn socially now than before the accident, nevertheless, she still goes out with friends socially. From all this, it appears to me that her depression has lessened quite a lot as compared to the first year or so after the accident.

18. This being the condition which I accept that the plaintiff is now in, it really does not matter whether it is called a depressive disorder or an adjustment disorder with depressive mood. Nor does it matter whether her mental condition is termed mild (by Dr Chung) or moderate (by Dr Singer).

19. That she still suffers from some depression is accepted by Dr Chung who states that in his opinion she would require some 10 sessions of psychological treatment.

Pain suffering and loss of amenities

20. Based on the present condition of the plaintiff and taking into account both the pain and her depression, the fact that the pain has continued since the accident, and the fact that this condition may continue for yet some time to come, I would grade this plaintiff as being in lower end of the serious injury category as understood in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657.

21. In my view, a sum of $475,000.00 would be reasonable compensation to this plaintiff for her pain, suffering and loss of amenities and such amount will be awarded under this head.

Pre-trial loss of earnings

22. The plaintiff had set up a photographic business by the name of Goldphoto Ltd ("Goldphoto") in 1989 commencing business from 1990 onwards and at all times was herself effectively the holder of 100% of the equity of Goldphoto. The plaintiff contends that because of the injury to herself towards the end of February 1997, not only the business of Goldphoto has been affected but also the growth of Goldphoto over the years following the accident had not been what it should have been but for the injuries to the plaintiff. In this sense, the plaintiff equates the loss to Goldphoto as being her loss of earnings.

23. In this respect, the plaintiff has obtained a report prepared by Mr John M. Utting of KPMG, an accounting and consultancy firm for the purpose of calculating what would have been the net loss to Goldphoto depending on what the growth rate attributable to Goldphoto would have been since February 1997 had the accident not occurred.

24. Before dealing with the conclusions arrived at in this report, I should mention the basis upon which this report was made. Firstly, the report was prepared based on sources of information from the audited accounts of Goldphoto for the years ended 30 June 1994 to 1998 and from the unaudited accounts of Goldphoto for the year ended 30 June 1999. It is also based on various analyses provided to Mr Utting by the auditors of Goldphoto as well as from Goldphoto's cashbooks, quotation listings and job listings for the years ended 30 June 1994 to 1999 as well as its quotations and sales invoices for the years ended 30 June 1994 to 1999.

25. Secondly, the report was prepared on certain assumptions on the turnover, percentage of gross profit margin and items of expenses as detailed in paragraph 4.8.1 of the report. I need not dwell in any detail upon these assumptions save to say that they are dealt with in the report itself and, although termed assumptions, they are obtained by taking the mean average of each item over the years as contained in the audited and unaudited accounts of Goldphoto.

26. Thirdly, the report is a recalculation of the net profit position of Goldphoto given a range of growth over the years since the accident up to 30 June 1999 and comparing that with the actual profits (recorded in the audited accounts) in the three accounting years since the accident. The difference arrived at being the estimated loss to Goldphoto. Those findings arrived at by Mr Utting in his report are as follows :-

Estimated growth rate		Estimated loss of profits
0%		$157,200.00
10%		$505,800.00
20%		$901,200.00
30%		$1,346,700.00

27. These figures do not reflect the full period of pre-trial from the date of the accident until trial (as they only reflect the three years of accounting period ending 30 June of 1997, 1998 and 1999) and therefore can serve only as a guideline to the ultimate finding that I have to make on this issue. They are not an estimate of the actual loss of profit for the pre-trial period.

28. There are also a number of matters in the report of Mr Utting which I need to deal with, before making such a finding. In so far as the growth rate is concerned, that is geared to the turnover in each of the accounting year. In the report itself, Mr Utting has drawn attention to the fact that in the first eight months of the accounting year ending 30 June 1997 (i.e. roughly up to the time of the accident), there was a significant increase in turnover which was due in part to one particular invoice of $500,000.00 for work on the Disney Mickey Unlimited ("Disney") campaign and that no other invoice of this magnitude appears in the accounts of Goldphoto between 1994 and 1999. Mr Utting further suggested that if the Disney invoice is a one off transaction and would not be repeated in future, then it should be excluded from consideration when comparing average monthly turnover. On that basis, the average annual growth rate of turnover between 1 July 1993 and the date of accident shows a growth rate of 11.6% and the average turnover for the period 1 July 1997 to 30 June 1999 is still 5% below the level of growth.

29. If the Disney invoice was taken into consideration, the average annual growth rate of turnover between 1 July 1993 and the date of the accident shows a growth rate of 29.3% and the average turnover for the period 1 July 1997 to 30 June 1999 will be 36% below the level of growth prior to the accident.

30. In so far as may be pertinent to the issue of growth of Goldphoto is concerned, I have also taken into account that in Appendix 2 of the report of Mr Utting, there appears a summary of the profits and loss accounts of Goldphoto for the years ended 30 June 1994 to 1999, in which it shows a steady decline of profit (before directors remuneration and tax) from $319,370.00 to $37,879.00 for the years from 1994 to 1997 before such profits picked up to $100,102.00 and $244,047.00 respectively for the accounting years 1998 and 1999. One possible reason for this is that the expenses for the accounting year 1997 had almost doubled that of the preceding accounting year. Apart from the plaintiff's evidence that due to her injuries, one result was that she had to increase her staff thus increased staff salaries, no other explanation was given for this sudden increase in expenses.

31. I also take into account letters from Goldphoto to the Immigration Department in Hong Kong in 1996 (well before the accident) expressing a wish to engage more expatriate staff. This, in my view, is as clear an indication as there may be that Goldphoto was minded to expand its business even before the accident and was probably at the threshold of doing so when the accident to the plaintiff happened.

32. Taking into account all the matters referred to above, I find that the injuries to the plaintiff did have an effect on the business of Goldphoto and that resulted in a loss of earnings to the plaintiff. I find that the business of Goldphoto would, in all probabilities, have grown more than what it actually did in the period after the accident but for the accident and the resultant injuries to the plaintiff.

33. As for the amount of that growth, I accept the suggestion of Mr Utting that the Disney invoice is probably a one off transaction of that magnitude such that a regular recurrence of it would be unlikely. From all the evidence, I find that the business of Goldphoto would probably have further grown by between 5% to 10% more than what it did in the pre-trial period after the accident. In the circumstances, using the figures in Mr Utting's report as guidelines only, I would assess that the pre-trial loss of earnings for the 471/2 months of the plaintiff to be $500,000.00 and that is the amount which will be awarded under this head of damage. In coming to this figure I have also taken into account the increased expenses since 1997 but which I felt was not adequately reflected in the "assumptions" adopted by Mr Utting which took an average of many items of expenditure from 1994 to 1999.

Special damages

34. The plaintiff's claim for medical expenses has been agreed between the parties in the amounts of $93,722.70 and $8,655.00, making a total of $102,377.70 and that amount will be awarded.

Loss of earnings capacity

35. The claim under this head has also been agreed between the parties at $157,200.00 and that amount will be awarded.

Future loss of earnings

36. The plaintiff claims for loss of future earnings and suggest that a multiplier of 12 be used. Indeed Mr Utting was instructed to prepare that part of his report dealing with future loss of earnings by applying a multiplier of 12 to the difference between the hypothetical growth figure and the actual profits.

37. The defendants, on the other hand, say that the multiplier should not be more than three or four since Dr Hsu had indicated that the plaintiff's pain will continue for another three years.

38. For my part, I take into consideration the following matters in assessing the future loss of earnings. Firstly, the plaintiff's business has continued and has grown somewhat since the accident. I have not been provided with the accounting figures for the year 2000 and I do not know what the accounting position is with Goldphoto for that year.

39. Secondly, the loss of earnings to the plaintiff, for the future as well as for the past, is connected and relative to the pain which she still experiences as a result of her injuries sustained in the accident. The opinion of Dr Hsu, which I accept, is that it is likely that the pain will persist for quite a while and it is difficult to predict with certainty the exact length of time the pain will continue although his rough estimate is for two to three more years. I also take into account that Dr Hsu believes the source of the pain to be where the nerves exit between the 4th and 5th cervical spine where he found some movement and he further believes that if all else fails spinal fusion blocking the movement between the 4th and 5th cervical spine may be the answer to relieving the plaintiff of her pain. In fact, based on this opinion of Dr Hsu, the plaintiff has included a claim for the cost of the spinal fusion which will be dealt with below.

40. Taking into consideration all these matters, I find that a multiplier of four would be reasonable in all the circumstances of this case.

41. As for the multiplicand, having regard to the award for pre-trial loss of earnings in the amount of $500,000.00 for the 471/2 months pre-trial, it comes to on average just over $10,000.00 per month. However, from the report of Mr Utting, it has to be realised that undoubtedly a much greater loss was suffered by Goldphoto in the period immediately after the accident for in the report, it can be seen that for the four months following the accident, Goldphoto's turnover fell by 44%. It is now almost four years since the accident and when considering the loss for the next four years post-trial, I consider that a loss of $8,000.00 per month will adequately compensate the plaintiff either because the pain is gradually decreasing with time (which allows Dr Hsu to estimate that it may continue for another two or three more years), or else it may be relieved or eliminated by spinal fusion, albeit at a cost. If in fact the pain is gradually decreasing with time, what that means, of course, is that the plaintiff will be able to resume her pre-accident workload thereby proportionally lessening her loss of earnings.

42. Accordingly, I shall award future loss of earnings in the sum of $8,000.00 x 12 x 4 giving $384,000.00.

Future medical expenses

43. The parties have agreed the cost of future physiotherapy at $44,720.00 and that sum will be allowed.

44. As already indicated above, Dr Hsu had stated in his report the possibility of spinal fusion as an answer to relieving or eliminating the pain which the plaintiff is still experiencing more than three and a half years after this accident. Dr Hsu has estimated the cost of the spinal fusion surgery to be $120,000.00.

45. The plaintiff also gave evidence in this respect under cross-examination. Her evidence was that initially Dr Cantu had discussed with her the possibility of an epidural which involves an injection into the spine at the base of the skull to reduce the pain. However, she was also told that an epidural would have some risks because the nerves at the spine may not be receptive to such an injection. She further stated that her present feelings are to rule out surgery or other treatment with risks and to continue with physiotherapy, but that Dr Hsu has not ruled out the possibility of spinal fusion.

46. It was in this context that her evidence was given. Based on that evidence, counsel for the defendants has submitted that the plaintiff would not consider surgery because of the risk and that she would choose physiotherapy over surgery.

47. I do not read the plaintiff's evidence in that way. She was saying that at present she would prefer physiotherapy over treatment with risks. There is no evidence that spinal fusion carries any special risk over and above what would normally be associated with surgery (unlike the risk of an epidural which was specifically explained to her by Dr Cantu). Furthermore, her evidence that Dr Hsu has not ruled out the possibility of spinal fusion seem to indicate that she is ready to abide by his advice. Also, the evidence of Dr Hsu appears to suggest that spinal fusion may be the last resort to relieve the pain if and when all else fails and, in those circumstances, it may not be unreasonable to expect the plaintiff to agree to it even if it carries some risk normally associated with surgery.

48. For these reasons, I am prepared to allow the claim for the future cost of spinal fusion in the sum of $120,000.00 noting that the amount has not been challenged or disputed by the defendants.

49. I turn now to deal with the cost of future psychiatric treatment. From my findings above as to her condition psychologically, there is really little justification for the psychiatric treatment recommended by Dr Singer. Initially in his report, Dr Singer recommended two sessions a month for three years. However, when giving evidence, Dr Singer changed that to one session per week for the first two years and then one session every two weeks for the third year. Dr Singer even went as far as to suggest that such psychiatric treatment may even be for life. Each session would cost $2,500.00.

50. I find the recommended treatment of Dr Chung more appropriate and reasonable to meet the condition of the plaintiff as I have found. Dr Chung recommends 10 sessions at $2,000.00 per session.

51. Accordingly, the plaintiff will be awarded $20,000.00 to meet the cost of future psychiatric treatment. It follows from what has been said above that the recommended maintenance treatment suggested by Dr Singer will also be disallowed as being unnecessary and unreasonable.

Summary of assessment

52. A summary of the above assessment is as follows :

PSLA	$475,000.00
Pre-trial loss of earnings	$500,000.00
Special damages (medical fees)	$102,377.70
Loss of earnings capacity	$157,200.00
Future loss of earnings	$384,000.00
Physiotherapy (future)	$44,720.00
Spinal fusion (future)	$120,000.00
Psychiatric treatment (future)	$20,000.00
Total:	$1,803,297.70 ==========

The plaintiff's damages are assessed totally at $1,803,297.70 with interests.

Interests

53. Interests on the claim for pain suffering and loss of amenities will be awarded at 2% per annum from the date of Writ until judgment, and interests on special damages and loss of pre-trial earnings will be awarded at half judgment rate (i.e. 6.25%) from the date of the accident until judgment. The calculations for interests can be left to the solicitors for both parties to work out.

Costs

54. Costs order nisi that the costs of the assessment be to the plaintiff, to be taxed if not agreed.