LI HUNG YING v. YIU KAI LUN

HCPI 896/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 896 OF 2006

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ASSESSMENT OF DAMAGES

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Introduction

1. By consent, interlocutory judgment on liability for 80% was entered against the Defendant for the Plaintiff in respect of her injuries suffered at a traffic accident.  Assessment of damages is the issue left to be decided by this Court

Background

2. The Defendant was born in the Mainland on 28 June 1966.  She received education there up to Form 3.  In 1981, she came to Hong Kong worked in electronic factory and then saleslady.  She started to work as a cleaner about 3 years ago before she met the subject accident.

3. The Plaintiff was and is married, living with her husband and their 2 children, a 16 year-old boy and a 5 year-old daughter.  Both of them are studying in schools.

4. Before the accident, apart from having advanced periodontal disease with her teeth, the Plaintiff enjoyed normal health and living.

5. Unfortunately, on 5 April 2005, a taxi driven by the Defendant knocked down the Plaintiff in Cheung Sha Wan.

6. Various medical reports have been obtained from the Caritas Medical Centre to show the injuries suffered by the Plaintiff.

(a)   General

“On arrival, she was dull, could obey simple verbal command.  There were multiple bruises abrasions and swelling (haematoma) on her right cheek, back & left hip.  Her upper incisor teeth were broken with laceration on upper lip.  Her bilateral thighs regions were swollen and deformed.”

(Report dated 4 January 2006)

“The above named patient sustained multiple injuries in a road traffic accident and she was admitted to the Intensive Care Unit on 5 April 2005.  The injuries included bilateral femur fracture, first cervical vertebra fracture, right little finger fracture, left third rib fracture, right public ramus fracture, right orbital wall fracture and teeth loosening.  The patient’s medical condition was stabilized in the Intensive Care Unit after admission.  The cervical fracture was managed with neck collar.  The right public ramus fracture was managed with analgesics and the right little finger fracture was managed with splintage.  The left third rib fracture, orbital wall fracture and teeth loosening were managed by Surgical, Ophthalmological and Dental colleagues respectively.  The bilateral femur fractures were fixed with internal fixation devices on 7 April 2005.

The patient was transferred to our ward on 10 April 2005.  Rehabilitation program was commenced.  Clinical psychology was also referred.  The fixation of right femur fracture was adjusted on 6 June 2005.  Rehabilitation program was continued afterwards.  The patient managed to walk with walking frame and she was discharged on 9 July 2005.

The patient was followed up in our clinic afterwards.  Physiotherapy was continued.  The fractures were healed.  The patient was last seen in our clinic on 6 January 006.  she managed to walk unaided at home and used one crutch while going out-door.

Sick leave was granted from 5 April 2005 to 14 July 2006.”

(Report dated 27 January 2006)

(b)   Eye

“… She was knocked down by a taxi resulting on fracture medical wall of right orbit.  Upon subsequent assessments, her vision returned normal.  The fracture did not cause symptoms and did not require surgical intervention.  The fracture should not cause problems to her daily activities.”

(Report dated 11 January 2006

– Department of Ophthalmology)

(c)   Teeth

“… CT scan shown fracture of cervical vertebrate C1 and right medical orbital wall fracture.  Grade I mobility of dentition 11 12 21 was found.  The differential diagnosis of subluxation 11 12 21 and dentoalveolus fracture involving the above dentition were made.  Definitive diagnosis can be confirmed only by dental x-ray only when patient was transferred out from ICU.  She was revealed on 30^th April, 05 in our out-patient clinic with occlusal x-ray showing consistent clinical picture of subluxed dentition 11 12 21 with pre-existing periodontal condition ……”

(Report dated 21 December 2005

– Department of Dental & Maxillofacial Unit)

(d)   Psychology

“According to the information provided by Ms Li in the present assessment, she was found to have normal adjustment difficulties related to her physical injuries.  Persisting symptoms of posttraumatic stress and mood problems were not identified.  In view of her normal adjustment, further clinical psychological service was not arranged.”

(Psychological Report dated 28 December 2005)

7. A Joint Dental Assessment Report was further prepared.  Both experts agreed that the Plaintiff had advanced periodontal disease with several loss of attachment around all teeth.  She was diagnosed to have aggressive Juvenile Periodontitis.  However, they differed in their opinions as follows:

8. Both parties also adduced expert reports from their orthopaedists, Dr. Chan for the Plaintiff and Dr. Choi for the Defendant.  Both experts examined the Plaintiff and commented on her working ability.

(a)   Dr. Chan

“I am afraid she would not be able to return to her pre-accident job as an office maid, doing cleaning and other odd chores.  Indeed it would also be difficult for her, with her low education and skill, to find a light sedentary job, say, receptionist or telephone operator.”

(Report dated 19 June 2006)

(b)   Dr. Choi

“Ms. Li is physically unfit to resume her pre-injury job as a cleaner.  Jobs without much ambulatory activities are more suitable for her.

Examples are watchman, sales assistant, carpark attendant, store assistant, telephone operator and sedentary type of factory worker etc.”

(Report dated 6 December 2006)

9. The Defendant also produced evidence of surveillance video.  In response to it, both Dr. Chan and Dr. Choi prepared 2 supplemental reports.  The Defendant objected to the production of the 2^nd supplementary report of Dr. Chan because of its lateness.  Upon thoughts, I will admit it as evidence before me as I do not consider that the Defendant has suffered any real prejudice.

10. The parties appeared before me on 9 and 10 January 2008.  Mr. Raymond Lau of Counsel acted for the Plaintiff and Mr. K.C. Chan of Counsel represented the Defendant.  At the end of the hearing, I reserved my assessment to be handed down.  I now do so.

Credibility of the Plaintiff

11. There was only one witness at this assessment, namely, the Plaintiff.  Her credibility therefore has become one of the main issues at trial.  After consideration, I find her an honest witness to be relied upon.  Although she did have some small disputes with Mr. Chan during the cross-examination, her evidence remained unshaken.  The surveillance video is unable to discredit her.  As a whole, I will accept her evidence on balance and find no exaggeration on her injuries and present complaints of remaining symptoms.

12. Mr. Chan drew my attention to 3 aspects of which he found the Plaintiff’s answers unreliable.

13. With respect, I take a different view from Mr. Chan.

Duty to mitigate: 3000 or 5500?

14. It was not disputed that the Plaintiff could not resume her pre-accident job.  It was also not disputed that she had a duty to mitigate.  Hence, the only argument is whether she could have earned 3000 or 5500, two figures proposed by the Mr. Lau and Mr. Chan respectively.

15. To start with, in light of the Plaintiff’s present problem of walking and level of education, I find the Defendant’s suggestion that the Plaintiff could work as watchman, sales assistant, car park attendant, shop-assistant and so forth not feasible.  A packer as suggested by Mr. Lau appears at first sight to be more acceptable.  However, only wages for the years of 2000 and 2001 were made available to this Court.  Further, with respect, the suggestion of a $3000 monthly salary appears to be quite arbitrary.  Fortunately, Dr. Choi said in his supplementary medical report dated 4 June 2007,

“Having considered the physical performance as shown in the surveillance, I believe that Ms. Li can work as an indoor cleaning worked if squatting, climbing and carrying heavy objects can be exempted.  She is fit to work up to six hours a day with intermittent rest if about 10 minutes after 60-90 minutes work is allowed.”

I will adopt the same approach of Dr. Choi with more generosity to the applicant by asking her to work for 4.5 hours a day and with longer intermittent rests and lunch.  By adopting her hourly rate of $35 ($260/7.5 hours) in the pre-injury job, on balance, I find that she should have been able to earn $3,465 ($35 x 4.5 hours x 22 days).

Assessment

16. With the above findings in mind, I now move to the assessment.

PSLA

17. Both Counsel agreed that the Plaintiff’s sufferings belonged to the category of serious injury, but disagreed the award under the head of pain, suffering and lost of amenities.  Mr. Lau suggested $650,000 and Mr. Chan, $460,000.

18. Both Counsel also submitted to me useful authorities to guide me to award suitable PSLA to the Plaintiff.  Among the cases, I find Wong Kwok Wa v Hung Tin Sun & Others [2005] HKEC 1705 most helpful.

19. Briefly, in the present case, the Plaintiff suffered multiple injuries. There were fractures and lacerations all over her body.  She was admitted to the Intensive Care Unit for 6 days and underwent operations at both legs.  4 teeth had to be extracted and replaced by fixed bridge.  After 3 months of hospitalization, she recovered well, but can now only walk with limping.  She has to take a rest after a walking of about 15 to 30 minutes.  Her right knee is still grossly swollen and stiff.  Her right lower limb is shorter by 2 cm than that of the left.  She cannot do and enjoy jogging and swimming as she was before the accident.  Since the accident on 5 April 2005, she was granted sick leave for almost 8 months until 1 December 2005, during which she also attended various physiotherapy and outpatient treatment at hospital.

20. The above condition of the Plaintiff bear quite some similarities as the victim in the case of Wong Kwok Wa, except that she suffered a bit more serious injury in 2 aspects, namely her teeth and the effect of scars and swelling on her lower limps to a lady at her early forties.  I will award to the Plaintiff a sum of $500,000 under this head.

Pre-trial Loss of Earnings

21. I have ruled that the Plaintiff should have mitigated her loss by finding a job as cleaning worker with lighter duties and less working hours at $3,465 per month.  Her pre-trial loss of earnings will be:

	$
Sick leave from 5 April 2005 to 1 December 2006 $6,692 x 19.83 months	132,702
From 2 December 2006 to hearing dated on 9 January 2008 $(6,692 – 3,465) x 13.3 months	42,919 ________
	175,621
Less: payment from employer $33,268 + $9,125	42,393 ________
	133,228

Pre-trial Loss of MPF

22. Her loss under this heading is accordingly 6,661, i.e. 5% of $133,228.

Loss of Future Earnings

23.  Both Counsel agreed to adopt the multiplier of 11 for the Plaintiff.  Her loss for future earnings is therefore $425,964 [$(6,692 - 3,465) x 12 x 11].

Loss of Future MPF      

24. The loss of future MPF is $21,298 ($425,964 x 5%).

Loss of Earning Capacity

25. I take the view that the compensation under paragraphs 23 and 24 above has sufficiently compensated the Plaintiff in her loss of future earnings, MPF and disadvantage in labour market.  There will be no provision made under this head of claim.

Future Medical Expenses

26. Since I accept that the Plaintiff has not exaggerated her sufferings and present situation, I also prefer to accept the recommendation and costs suggested by her experts.  I therefore award her the followings.

	$
Knee prosthetic	150,000
Dental replacements	96,000
Dental maintenance	30,000
MRI	4,000
	280,000

Special Damages

27. The Defendant agreed most of the items claimed by the Plaintiff save certain items which it found no proof, no evidence to support and unreasonable.  They were the claims of a bracelet, a ring, a massager, shoe pads and tonic food.  These are small amounts only.  Given the fact that I find the Plaintiff a reliable witness, I will also accept that such disputed claims are proved to my satisfaction on balance.  They amount to $51,793 in total.

	$
Medical	27,949
Traveling	1,120
Clothing, mobile & bag	3,200
Jade bracelet	700
Ring	3,000
Tonic food	10,000
Massager	1,529
Shoe pads	900
Additional medical	760
Additional traveling	360
Bone-settor fees	2,275
	51,793

Summary

28. In summary, I award to the Plaintiff.

However, after taking into the 20% contributory negligence as conceded by the Plaintiff, the Defendant shall pay her only the sum of $1,135,155.

Interest

29. The Plaintiff should be entitled to interest on PSLA at 2% per annum from the date of writ herein until today.  As to pre-trial loss of earnings and MPF, interests will be calculated from the date of accident at half judgment rate of 5.4% per annum until the date hereof.

Costs

30. I do not have the benefit on submissions by Counsel on the question of costs, but there appears to be no reason to depart from the usual rule that costs follow the event.  There is accordingly an order nisi that the Defendant shall pay costs of the assessment, including Certificate for Counsel on 9 and 10 January 2008, on High Court Scale, to be taxed if not agreed.  Such order will become absolute 14 days from today.