LEE HOI YIN Plaintiff and HO KA YIN Defendant

HCPI 81/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 81OF 2003

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J U D G M E N T

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Introduction

1.  The Plaintiff is suing that the Defendant in respect of personal injuries she sustained as a result of the traffic accident which occurred in the early hours of the morning of 23 April 2001.

2.  The Plaintiff was a passenger in a motorcar registration no. JM 2100 which was being driven by the Defendant from Shek Kip Mei to Shatin where the Plaintiff lives with her parents at the Tai Wo Estate.

Liability

3.  According to the Defendant’s evidence, he was driving his car at approximately 60 kph along Tai Po Road near the 5½ miles carpark.

4.  On rounding a corner he saw ahead of him that there was an obstruction in the road.  Another car had come into collision with a container truck which was stationery on the pavement on the nearside of the road.

5.  He applied the brakes of his car and lost control of it.  It veered to the right hand lane and collided with a taxi which was travelling in the opposite direction.  Thereafter it crashed into the hillside adjoining the right side of the road.

6.  The Plaintiff who had been sitting on the near side rear seat of the car was thrown out of the car onto the road and suffered life threatening injuries.

7.  Conditions at the time of the accident were poor.  It was raining and the road surface was damp.

8.  It seems almost certainly to be the case that when the Defendant applied the brakes of the car he lost control of the vehicle and it skidded into the right hand lane of the road.

9.  The Plaintiff had no recollection whatever of the circumstances surrounding the accident.

10.  Mr Li Tak Wing, the other passenger in the car at the time of the accident did however give evidence concerning it.  He had been sitting in the front seat beside the Defendant.

11.  According to him, the car was being driven at approximately 60 kph.  He had been watching the road.  When he first saw the obstruction in the road, it had not been far from where the Defendant’s car was.  He had warned the Defendant of the hazard and the Defendant had attempted to reduce speed so that a collision could be avoided.  The car had skidded across to the other side of the road where it had collided with a taxi.  It had then gone on to hit the side of the hill.

12.  He had had to climb out of the window of the car as the door would not open.  He saw that the Plaintiff had been thrown out of the car and was lying near the rear of the car.  She was obviously badly injured.

13.  Mr Li said that he had not specifically noticed whether the Plaintiff had put on her seat belt.  He thought that she probably would have done as he had noticed that when she had on previous occasions been a passenger in his car, she always put her seat belt on.

14.  It is of significance to note that the Defendant pleaded guilty to careless driving and using a defective vehicle at the North Kowloon Magistracy on 3 October 2001.

15.  I have no doubt having regard to the prevailing conditions at the time of the accident that the Defendant had been driving at an excessive speed.  Probably also he was paying insufficient attention to the slippery nature of the road surface.  Also probably he was incompetent in the manner, he attempted to manoeuvre the vehicle after it started to slide.

16.  I have no doubt that the Plaintiff has established that the Defendant was guilty of negligence and the accident occurred as a consequence of this.

17.  The question which next has to be considered is whether the Defendant is able to prove that the Plaintiff was guilty of contributory negligence.  This will depend upon whether he can prove that the Plaintiff was not wearing a seat belt at the time of the accident.

18.  In his witness statement which the Defendant adopted as his evidence in chief, he stated that the Plaintiff had not put on her seat belt at the commencement of the journey from Shek Kip Mei.

19.  He was subjected to an able cross-examination by Mr Loughran for the Plaintiff.  The Defendant agreed that both girls had fastened their seat belts on the journey from Shatin to Shek Kip Mei where Ah Ying the other girl was sent.  Accordingly to the Defendant, it had been necessary for the Plaintiff to alight from the vehicle when Ah Ying got out as she was sitting on the left side and it would have been dangerous for Ah Ying to exit the car on the driver’s side.

20.  The Defendant said that when the Plaintiff got back into the car, she did not fasten her seat belt.  This was notwithstanding the fact that he requested her to do so.

21.  He went further and maintained that he was sure that the Plaintiff had not at any time after the return journey commenced fastened her seat belt.  The reason he gave to support this belief was that he claimed to have kept her in his observation in the rear view mirror.

22.  It is significant to note that nowhere in any of the statements he has made, did he make reference to this important request to the Plaintiff on this subject.

23.  It was definitely my impression that the Defendant was an evasive and unsatisfactory witness.  There were a number of aspects of his evidence which were unconvincing.  One example of this was his evidence in relation to his conviction for careless driving in relation to the accident.

24.  In court, he maintained his innocence and of having been in no way careless or at fault and said that the only reason why he had pleaded guilty to the offence was to get the whole matter over and behind him.

25.  As I had said I did not find him to be a witness of truth and I was by no means satisfied that the Plaintiff was not wearing a seat belt on the return journey.  In coming to this conclusion, I have born in mind the evidence that both girls wore seat belts on the way to Shek Kip Mei and Mr Li’s evidence that it was normally the Plaintiff’s practice to wear a seat belt.  I find that the Plaintiff was not guilty of contributory negligence.

Quantum

26.  At the time of the accident, the Plaintiff was aged 20.  She worked in a cake shop operated by Maxims as a cashier and was in receipt of a salary of approximately $9,000.00 per month.  The exact amount would depend upon the overtime she had worked.

27.  Her injuries were severe and serious and the Doctors attending upon her have granted her sick leave up to the date of this trial and indeed up to 5 January 2005.

28.  There are altogether 15 different medical reports on the Plaintiff’s condition.  Two of these reports are made by Doctors who were instructed by the Defendant.

29.  There would not appear to be much disagreement between the Doctors concerning the Plaintiff’s condition.  Having considered all of the reports, I do not think that I can do better than to adopt the précis prepared by Mr Loughran.

“I.   Injuries, treatment received and permanent disabilities:

a.	Injuries
(i)	Fractures of left clavicle, left 2nd to 5th and 7th ribs and left public rami.
(ii)	Head injuries with intracerebral and subdural haematoma and subarachoid haemorrhage.
(iii)	Intra-abdominal injury with haemo-peritoneum.
(iv)	Two deep lacerations of spleen with active bleeding and a big perinephric haematoma.
(v)	Ruptured right kidney with large retroperitoneal and bilateral hemothorax.
b.	Treatment received
(i)	The Plaintiff was admitted to the Caritas Medical Centre.  Left side chest drain insertion and emergency right renal arteriogram and embolization was done.
(ii)	Emergency laperotomy and total splenectomy were performed.
(iii)	Nephrectomy was done on re-laparotomy and a pelvic C-clamp was applied for reduction of the pelvic fracture.
(iv)	Follow-up CT scan of brain was done on 17th May, 2001 which showed intracranial haematoma with residual hypodense in the right fronto-parietal lobe.
(v)	The Plaintiff was diagnosed to have suffered from delusional symptoms and received psychotherapy from clinical psychologist.
(vi)	The Plaintiff was discharged on 31st May, 2001 and was transferred to Kowloon Hospital for further rehabilitation.
(vii)	The Plaintiff was diagnosed to have suffered from significant deterioration in her cognitive abilities for which she received psychotherapy.
c.	Permanent disabilities include:
(i)	There was stiffness of the left shoulder, the range of motion reduced.
(ii)	There is weakness, paraesthesia and numbness of right lower limb.  Diminished ankle movement.  The Plaintiff has limping gait on the right side.
(iii)	There is decrease standing tolerance and decrease lifting capacity.
(iv)	There is significant deterioration in her cognitive abilities and loss of memory and learning ability.
(v)	Scars over midline of the abdomen, chest and pelvis.
(vi)	Pain over buttocks, low back, both shoulders and right leg.
(vii)	The Plaintiff cannot sleep well because of the pain and stiffness over her shoulder.
(viii)	She suffers emotional stress from the physical disabilities and change of attitude of her boy friend.
(ix)	Psychological and emotional damage and social deterioration.  Weight gain.

30.  On account of its importance when dealing with the issue of the Plaintiff’s earning capacity after the accident, it is useful to also include Dr Frendi W S Li, a Chartered Clinical Psychologist’s assessment of the Plaintiff’s present mental condition.

“9.  Clinical Opinions

9.1 Cognitive Abilities and Memory Functions.

9.1.1 Pre- and Post-accident discrepancies.  Miss Lee’s previous level of academic performance and vocational history suggested that her cognitive level was at least Average.  There might have been other factors involved in her less than satisfactory results in public examinations, but her occasional good results at school and the teachers’ comments mentioned in paragraph 6.2 pointed to a potential for better performance.  The following is a summary of her abilities currently.  There are clearly significant gaps between her abilities now and the estimated pre-accident level.  Since cognitive and memory abilities are usually rather stable (and in their peaks) in young adulthood, the sudden decline after the accident can be reasonably attributed to the brain damage in the accident.

Percentile rank   (Average = 50) General IQ 16 General Memory 5 Delayed Recall 0.1 Spatial Analysis 1.5 Facial Recognition 8 to 11

Impact of Cognitive Impairment on her Daily Life

9.12 Communication.  The above cognitive abilities profile means that Miss Lee can still communicate casually with others in meaningful ways.  However, in-depth discussion and analysis which require higher level of memory for information processing would be difficult for Miss Lee.”

31.  The Plaintiff gave evidence of the impact the accident has had on her life.

32.  Prior to the accident, she enjoyed life to the full.  She was good at her job as a cashier at Maxims and had received promotion.  She derived pleasure from working with her colleagues and was popular and had a fulfilling social life.

33.  She had a regular boyfriend and a good prospect of getting married and having a family in due course.

34.  All of this had changed as a result of the accident.

35.  She experienced pain for a lot of the time and this had caused her to suffer from insomnia.  Her physical condition had been impaired to such an extent that she did not think that it would be possible in any circumstances to return to her former employment.  This was on account of the fact that she could not lift heavy weights nor could she either stand or sit for any long period of time.

36.  Her social life had also deteriorated considerably.  Whereas previously she had had an extrovert outward looking personality, she now had become introverted and did not seek out company.

37.  This was entirely as a consequence of the head injuries she had sustained.  Her cognitive powers had become depleted.  Her memory was now impaired to such an extent that she would be unable to do the necessary mental arithmetic for her job as a cashier.

38.  In addition to this, her attention span had been affected and she found difficulty in following the plot of television shows and popular films.  This had occasioned her embarrassment and had had a detrimental effect on her social life.

39.  One unfortunate consequence of all of this had been that her boyfriend had left her.  This had partly been due to the fact that her personality had changed for the worse and she had now become bad tempered and impatient.  There was also the problem of the cosmetic effect of the ugly scars on her body.  She was now unable to wear a bikini to go swimming. 

40.  Also she had put on weight and felt that she was less attractive physically than she had been before.

41.  Over and above all of this, she had suffered depression and feelings of worthlessness.

42.  The Doctors who had made reports on the Plaintiff appeared to be unanimous that the Plaintiff had not exaggerated the nature and extent of her injuries and difficulties.

43.  It is apparent from the Doctor’s reports that the Plaintiff’s mental state is a contributory feature of her physical condition and that this is particularly the case so far as her attitude towards work in the future.

44.  Having considered all of the relevant matters carefully, I have come to the conclusion that the Plaintiff’s injuries are such as to bring her to the highest level of damages within the classification of ‘serious injuries”.  I find therefore that an award for pain, suffering and loss of amenities of $600,000.00 is appropriate in the present case and I make this award under this head of damages.

Pre-trial loss of earnings

45.  At the time of the accident, the Plaintiff was earning $9,000.00 p.m.  She had been promoted some time previously and clearly had been good at her job.

46.  She gave evidence that she was eligible for further promotion and doing the best she could she estimated that her promotion would have been in about 18 months from the time of her previous promotion.  I was satisfied that the Plaintiff was a truthful and reliable witness and I accept this evidence.

47.  Pre-trial earnings from

May 2001 to July 2002, $9,000 x 15	=	135,000.00
August 2002 to mid November 2004, $10,500 x 27.5	=	288,750.00
Mandatory Provident Fund at 5%	=	21,187.50
Total		$444,937.50
		=========

Post- trial loss of earnings

48.  This is more difficult to calculate.

49.  Mr Loughran submitted that I should take cognisance of the possibility that the Plaintiff would in due course increase her earnings.

50.  He placed particular reliance upon the Plaintiff’s evidence that she had attended a course on Hotel Management and that she hoped in due course to obtain a supervisory position in housekeeping in the Hotel Industry.

51.  With respect, I am of the view that these aspirations are too vague and uncertain to enable me to increase the amount of the multiplicand which should be adopted for calculations under this head.

52.  The next matter which has to be considered is what employment the Plaintiff can realistically expect to obtain in the future.

53.  Mr Lim for the Defendant contended that the Plaintiff ought to be able to obtain employment as a cashier or something similar to this.

54.  I do not think that this is being realistic.

55.  In this connection, it is pertinent to take cognisance of the opinion expressed by Dr Li which is referred to earlier in this judgment.  It will be noted that the Plaintiff’s intellect has been detrimentally affected by this accident to such an extent that is it unlikely that she could obtain a job as a cashier or indeed in sales.

56.  I am more persuaded by the submissions made by Mr Longhran that the target which the Plaintiff should be aiming for would be much closer to the lowest monthly earnings referred to in the records published by the Census and Statistics Department.  That is approximately $6,500.00 p.m.

57.  While it is true that provision will be made for the Plaintiff to receive the recommended psychological treatment, the result of this is only likely to enhance her attitude to life.  It is not likely to lead to any increment or enhancement of her intellectual capacity and this being the case, I am satisfied that her future earning capacity is unlikely to be more than $6,500.00 p.m. which is the figure that I find to be appropriate under this head.

58.  The Plaintiff has not worked since the accident up to the present time.  She has sick leave certificates up to January 2005.  I propose basing my calculations on the Plaintiff returning to work at that time.

59.  There is not a great deal of difference between the parties as to the appropriate multiplier to be adopted.  I prefer the submissions made by Mr Lim and find that the multiplier is to be 16 years.

60.  The award under this head will therefore be,

$10,500 x 2 (November 2004 to January 2005)	21,000.00
$10,500 – 6,500 x 12 x 16	768,000.00
Mandatory Provident Fund at 5%	39,450.00
	$828,450.00

Loss of earning capacity

61.  I am satisfied that the Plaintiff is entitled to an award under this head as she most likely will encounter problems in connection with obtaining employment having regard to her present condition.  In my view an appropriate award is $100,000.00.

Loss of congenial employment

62.  I do not think that I am able to make an award under this head.  There were no special features relating to the Plaintiff’s work in Maxims Cake Shop.

63.  All of the following heads have been agreed by the parties.

Cosmetic treatment		$104,300.00
Psychological treatment:
	First six months (6x2x$1,500)	$18,000.00
	Subsequent six months (6x1x$1,500)	$9,000.00
		$131,300.00
Miscellaneous:
	Hospital expenses	$2,584.00
	Outpatient expenses	$1,889.00
		$2,720.00
		$10.00
		$44.00
	Tonic food	$6,030.00
	Travelling expenses	$1,846.00
		$15,123.00
Summary:
	PSLA	$600,000.00
	Pre-trial loss of earnings	$444,937.50
	Post-trial loss of earnings	$828,450.00
	Loss of earning capacity	$100,000.00
	Cosmetic and psychological treatment	$131,300.00
	Miscellaneous as outlined above	$15,123.00
	Total :	$2,119,810.50
		==========

64.  Interest will be payable at the rate of 4% from the date of the accident on the special damages and at 2% on the general damages from the date of the service of the writ. 

65.  I make an order nisi perhaps the Plaintiff is to have her costs.