POON MAN CHUN v. LI SAU YEE

1992, No. A2294

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. On the 4th March 1991, the Plaintiff, who was then aged 29 years of age, was riding her motorcycle along Clear Water Bay Road when the Defendant so negligently drove his motor car so as to cause it to collide with the Plaintiff's motorcycle thereby causing her personal injuries, loss and damage.

2. An unusual feature of this case is that prior to the accident, the Plaintiff was a particularly fit and athletic young woman. At the time of the accident she was employed by the Hong Kong Government as an Artisan (Swimming Pool and Beaches) which in effect meant that she was a lifeguard. Clearly one has to be fit to be a lifeguard. She was an excellent swimmer. She could swim a number of different styles. She was able to finish 50 metres free style within 36 seconds. After the accident, the best she can achieve is 54 seconds. She can now no longer swim breaststroke or butterfly style nor can she actually participate in windsurfing and rock climbing as she used to in the past. In addition to all this, she was at one stage a member of the Hong Kong National Judo Team, and in 1988 was awarded a black belt. I will have to return to her employment position in due course, but the fact that the injuries have substantially curtailed her physical activities is an important point to be borne in mind throughout this judgment.

3. Liability was in issue until the moment when the case was called on, and then Mr. Ozorio, who had been instructed only the night before, told me that he could not contest liability. This was a very sensible and inevitable concession. The Defendant had been convicted of careless driving in the Magistrate's Court. He was on the wrong side of the road when he collided with the Plaintiff's vehicle and his suggestion, hotly denied, that the Plaintiff did not have her lights on, only surfaced very late in the day and was not adverted to in the Magistrate's Court nor in the Defendant's statement to the police.

4. Time and again, defendants, through their insurers, leave their inevitable admission of liability until the very last moment. This wastes time and money. In the end, the insurers have to pay more by way of legal costs. If liability is admitted at an early stage, as it should have been in this case and other clear cut cases, then the assessment of damages can be safely entrusted to the experienced masters and a High Court judge can turn his attention to other pressing matters. I can only express the hope that more realism can be introduced into the conduct of personal injury litigation on behalf of Defendants. Everyone will benefit from this.

The Injuries

5. After the accident, the Plaintiff was taken by ambulance to the United Christian Hospital. She had suffered the large open wound over the right knee and leg area. There was also pain and abrasions over the right index finger and pain over the right shoulder region. She also suffered multiple superficial abrasions on the left side of the body. She was operated upon the same evening at the United Christian Hospital. The wound was cleaned up and the knee-cap, which was fractured, was fixed with screws. Her injured finger was stitched and the shoulder was treated with medication.

6. She was transferred to the Baptist Hospital under the care of Dr. Ambrose Wong from the 6th March 1991 to 28th April 1991. There she underwent several more operations to clean up the wounds of the right leg and received daily changes of dressing. After discharge from the Baptist Hospital she was unable to go back to work. She had to receive out-patient treatment and undergo physiotherapy exercises from time to time. She was on certified sick leave until 14 July 1991, which means that she was on sick leave for 4 months and 10 days after the accident.

7. After the sick leave was over she resumed her pre-accident duties as a lifeguard. She immediately experienced pain and stiffness of the right knee joint. This severely limited her ability to climb up and down steps as well as to walk or run. However, she very much enjoyed her job as lifeguard and held on to it as long as she could.

8. In January 1992, despite repeated physiotherapy, the pain remained. She was advised, and accepted the advice, that the fixation screw in the right knee-cap was probably producing the symptoms and therefore should be removed. The knee improved after the operation in January 1992, but she still felt pain in the right knee which was worse when the weather changed. She attempted to return to regular lifeguard duties but was unable to do so. On one occasion, she fell while trying to climb down the stairs from the watch tower on to the beach. In May 1992, she underwent an arthroscopy evaluation of the knee. It was found that the ligament and cartilage of the knee region were damaged. She was prescribed exercises and attended out-patient physiotherapy.

9. In June 1992, she was assigned to work at a Tang Shiu Kin Playground at Sai Kung with general cleaning duties. A medical board had been convened on the 19th March 1992 and they considered her unable to perform lifesaving duties and she was recommended to take up light duties subject to review after six months.

10. A medical report was produced by Dr. Julian Chang who had examined the Plaintiff. Dr. Chang also gave evidence before me. There is no doubt that there is substantial unsightly scaring to the knee. The Plaintiff walks with a slight limp. There is no doubt that the knee hurts from time to time and she says that she has to see a doctor for the pain about once a month. The knee is unlikely to get better and, indeed, in all probability will get worse. The effect of all this, as I have already said, is to substantially curtail her sporting and physical activities. I am quite satisfied that the injury to the knee has been such as would restrict her physical activities, such as swimming, and I have no doubt that this is why the medical board found her unfit for lifeguard duties. It is very much to her credit that she attempted to go back to her pre-accident work despite the injury.

11. She also has an injury to her right index finger. It is slightly bent and there is a certain amount of loss of function as a result. It is also slightly unsightly and I have no doubt it causes her some embarrassment.

12. I accept the Plaintiff's explanation as to the manner in which her injuries have curtailed her social and working life. I also accept the evidence of Dr. Julian Chang. He confirmed in particular that the side way kick for the breaststroke would be difficult as a result of this particular knee injury. He also confirmed that there was damage to the terminal endings of the index finger which causes hidden pain. He also examined the Plaintiff the very morning that he gave evidence. The finger tip had in fact changed so that it was now insensitive rather than the subject to hidden pain. Dr. Chang's opinion of the knee was that the cartilage had deteriorated. He said that if the pain became intractable then a plastic knee-cap would have to be considered. As to post traumatic arthritis, he pointed out that this sometimes takes 3 to 5 years to become detectable. He confirmed that if she had pain in the knee then it would not be unreasonable to seek medical treatment once a month.

13. In cross-examination, Dr. Chang pointed out the loss of flexion to the knee. His conclusion was that the injury to the knee was a serious one. He thought that there was more pain today than previously when he had examined the Plaintiff. He thought that the original consequences of the injury were still working through and it was not possible to know the full extent of this injury.

14. I should point out that Mr. Ozorio, with his characteristic fairness, agreed that if Dr. Chang was the only medical expert relied upon by the Plaintiff, then he would accept that evidence and call no further medical evidence himself. Mr. Yau for the Plaintiff accepted that position.

The Plaintiff's Employment

15. As I have said, at the time of the accident, the Plaintiff was employed as an Artisan carrying out the duties of a lifeguard. Although she returned to that work after the accident, she was found to be unfit to continue. She was therefore transferred to the post of Artisan (General Duties) and that is what she is doing at the present time. At the Tang Shiu Kin Playground, she carries out a number of duties which are akin to that of a groundsman. It is an outdoor job and involves a certain amount of bending and squatting, but she seems to be managing satisfactorily.

16. The next senior post available to the Plaintiff is Senior Artisan (General Duties). However, this is not a promotional grade. It is a recruitment grade. The Plaintiff will in due course have to apply for the senior position and will have to show that she can handle the job and will have to compete with outsiders. The present position is that she has not yet been confirmed on the permanent establishment for her present position. However, Mr. Lau, who gave evidence as to personnel matters, fairly accepted that from what he had seen in the file there was nothing to suppose that the Plaintiff would not be confirmed in her present position on the permanent and pensionable establishment. Once on that establishment and after a certain amount of time and experience, she would be in a position to apply for the senior post. Again quite fairly, he pointed out that he saw nothing in the file which would indicate that there was any hindrance to the Plaintiff in obtaining a senior post in the fullness of time. In fact, he pointed out that there were some excellent reports on the Plaintiff contained in the file. She appears to be a conscientious, hardworking, responsible person with concern for others and with an interest in community matters.

17. The only dark spot on the Plaintiff's record related to an unfortunate incident which occurred after the accident and when she had returned to work as a lifeguard. It was alleged by four of her colleagues that instead of being on duty on the high chair on the beach, she was in fact windsurfing within the swimming area. The Plaintiff denied that she had been windsurfing. She agreed that she had been swimming and was holding on to the windsurfing board and was exercising her legs in accordance with advice given by her physiotherapist or doctor. However, the plain fact of the matter is that whether she was windsurfing or swimming she was in dereliction of her duty because she should have been on the chair. The complaint having been made, disciplinary proceedings were begun against the Plaintiff. In due course, she accepted the admonition which was given to her, but she maintained her denial that she had been windsurfing. For the purposes of this case, the only relevance of the windsurfing was that Mr. Ozorio, when he put it to her that this was the position, was attempting to show that, perhaps, her injuries were not as bad as she had made out. However, by accepting the admonition and not taking the matter any further, the Plaintiff is clearly acknowledging that she should not have been in the water but should have been on the chair. She was given this warning and that warning has now expired, and in her file, there is a clear notice that this warning has expired. This was an unfortunate incident. It may be that her colleagues reported her because she had reported them for gambling instead of working. Be that as it may, I am quite satisfied on the evidence I have seen and in particular the evidence of Mr. Lau that this admonition is now fully spent.

18. I am quite satisfied on the evidence that I have heard that it is highly probable that the Plaintiff will be taken on to the permanent establishment at the grade of Artisan (General Duties). I am further satisfied that in the fullness of time the Plaintiff will be recruited at the level of Senior Artisan (General Duties). I am also quite satisfied that had the accident not occurred, the Plaintiff would have been able to satisfy the requirements for the recruitment post of Senior Artisan (Lifeguard). I am quite satisfied that she would have passed the necessary tests to be in the position to apply for and be awarded that post.

19. So what she is left with is the fact that as a result of the accident, her promotion to the senior grade (or rather her recruitment to it) has been delayed by a number of years, and I must take that into account when assessing damages in this case. I will return to this in due course.

20. I now turn to the various heads of claim made by the Plaintiff.

(a)Pain and suffering

21. Mr. Ozorio submits that the degree of the Plaintiff's disablement ought not to qualify her for the serious injury category let alone the substantial injury category as set out in Lee Tin Lam v. Leung Kam Ming[1980] HKLR 657, as updated by subsequent cases. Mr. Ozorio has helpfully updated the relevant figures for these categories as follows. As at mid 1994, he submits that the serious injury category should now be in the region of $200,000.00-$270,000.00. At the same time, the substantial injury category should be between $270,000 and $340,000.00. Mr. Yau for the Plaintiff opened this case on the basis that the appropriate award should be $260,000.00. Mr. Ozorio's figure is $180,000.00 which is just below the serious injury category.

22. I have considered all the authorities placed before me by Mr. Ozorio, and I am quite satisfied that it is appropriate to put the Plaintiff's injury into the serious injury category. Cons. J.A. in Lee Tin Lam defined serious injury as covering those cases :-

"... where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain."

23. In the light of the matters I have set out above, I fail to see how it can be argued that this is other than a serious injury. The Plaintiff was a particularly active person who enjoyed life to the full. Although I am sure when this case is over and the dust has settled, she will begin to enjoy life much more, the plain fact of the matter is that she will never be able to enjoy the physical side of life to the same extent as hitherto. I believe the fact that she was so active prior to the accident is a substantial matter to be taken into account in the light of the restrictions caused by the accident.

24. I do not think it right to put this into the substantial injury category. Taking all these matters into account and accepting everything the Plaintiff had said to me about her physical condition, and not ignoring the quite unsightly scaring to the knee, I think that the correct figure for general damages for pain and suffering is the sum of$250,000.00.

(b) Post-trial loss of earnings

(i) Loss of overtime pay.

25. As a result of not being able to carry out the duties as a lifeguard, the Plaintiff has lost the opportunity of working overtime as a lifeguard which is required during the swimming season. There are no such opportunities in her present employment. The annual losses are agreed at $10,450.00, and the parties have agreed that the appropriate multiplier is 14. However, Mr. Ozorio submits that whereas 14 is the appropriate multiplier, one should reduce this by some 50% to reflect the uncertainties of life, and the fact that the Plaintiff would not have remained a lifeguard until retirement and would have been transferred to less demanding duties as she moved into middle age. I am not impressed with Mr. Ozorio's submission. The Plaintiff is still a young person and there was no evidence produced to show that there was any particular cut off age for lifeguard. The fact is that people are remaining fitter and younger looking than they used to and I find nothing strange in the prospect of a lifeguard in her late 40's or even early 50's. I therefore propose to allow this sum in full which is $146,309.00.

(ii) Loss of earnings being the difference between that of a Senior Artisan and an Artisan.

26. It is agreed that the pay differential per month is $892.50 and a 13 year multiplier is sought. I am quite satisfied, as indeed Mr. Ozorio agrees, that the accident has caused a delay to the Plaintiff getting to the position where she was likely to be promoted. I agreed with him that 13 years is far too long a multiplier given the nature of the recruitment exercise involved and in all the circumstances, I think the appropriate figure is one of 5 years. The claim here is therefore $892.50 x 12 x 5 which produces $53,550.00 which I accordingly award.

(iii) Loss of wages derived from giving swimming lessons on the part- time basis.

27. The Plaintiff told me that she earned about $8,000.00 a year giving private swimming lessons to children of her friends. Mr. Yau says that the proper multiplier is 8.

28. Mr. Ozorio disputes this claim entirely on the grounds that the Plaintiff has not proved that she is unfit for this work. He points out that she did not even try to resume teaching. Further, he points out that there is no documentary proof that she was earning $8,000.00 per year from this activity.

29. I am quite satisfied that I can rely upon the Plaintiff's evidence. She tells me she was earning $8,000.00 a year and I accept it. I can well understand why she was not willing to go back to give swimming lessons. Firstly, she is not anything like as good a swimmer as before and an ability to swim well is an important prerequisite for teaching swimming. Secondly, there is the question of the unsightly scar to her knee which I am sure is a factor. I am quite satisfied that had the accident not occurred, she would have gone on giving private swimming lessons as before, but I think that after a few years, she would either have got fed up with it or been too engaged in other matters of a personal nature. I therefore think that the appropriate multiplier here is 5, and I therefore award $40,000.00 under this head of claim.

(iv) Loss of future sick leave.

30. This is claimed on the basis of one day per month. The sum claimed is $9,105.00, and is admitted and I therefore award that sum.

(v) Future medical expenses.

31. This is based on one visit per month to a doctor for the next 14 years. Each visit is said to cost $250.00. This claim is, of course, supported to some extent by Dr. Chang, but I think it is slightly excessive. I would have thought once every two months is reasonable. In those circumstances, I award $21,000.00 under this head of claim. Mr. Ozorio suggests $7,000.00 under this head but this is just too low.

(vi) Loss of wages as a cadet supervisor of the Civil Aid Service due to being handicapped in participating in field activities.

32. This is claimed at the rate of $3,000.00 per annum for 14 years, namely $42,000.00.

33. Mr. Ozorio disputes this claim on the basis that the Plaintiff's disability is not so serious as to prevent her from carrying out her duties. He also submits that as this would not be her principal source of income, it would be reduced as she got older, and if I were to award anything the multiplier should be heavily discounted. The simple fact is that prior to the accident the Plaintiff was heavily involved in the Civil Aid Service and this involved a lot of outdoor activities. She is now limited to giving lectures. I am quite satisfied that there is an ascertainable loss here at the annual rate of $3,000.00, but I think that 14 years is too long a multiplier in all the circumstances for the reasons given by Mr. Ozorio, and I propose to award a multiplier of 7 producing a claim under this head of $21,000.00.

Loss of Earning Capacity

34. This is perhaps the largest area of dispute. Mr. Yau for the Plaintiff seeks an award of $300,000.00 under this head, whereas Mr. Ozorio said that nothing is due, and if he is wrong about that, there should be only a nominal award of some $30,000.00.

35. The claim is based on 3 full years loss of earnings. Mr. Ozorio says that it is an unreasonable claim because the Plaintiff is most likely to be taken on to the permanent establishment of the Hong Kong civil service and as such will enjoy a high measure of security of tenure. However, the fact remains that if the Plaintiff's knee does deteriorate and she uses up all her sick pay entitlement, she could find herself in the position of being invalided out of the service. I think this is a sufficient risk to justify an award, but bearing in mind that the Hong Kong Government is not only the largest employer but also a very caring employer, I think I must conclude that the award under this head should be on the relatively low side. If the Plaintiff were invalided out of the service at some stage during her career, I am quite satisfied that she will be able to get alternative employment, but that alternative employment would be at a lower salary than her Government salary.

36. I reject Mr. Ozorio's primary submission that because she is a civil servant and likely to be on the permanent establishment this, in itself, precludes any award under this head.

37. I think that the justice of this case requires an award under this head limited to $100,000.00 which is approximately one year's salary.

Special Damages

38. Fortunately, most of these are admitted.

(a) Loss of overtime pay is agreed at $27,351.00

(b) Loss of pay during the half-paid sick leave period is agreed at $21,137.00.

(c) There is also a claim for loss of wages derived from giving swimming lessons on a part-time basis from 1991 to 1993. The claim is $24,000.00 which I propose to award.

(d) There is a claim for loss of wages as a cadet supervisor of the Civil Aid Service due to being handicapped in participating in field activities from 1991 to 1993. $9,000.00 is claimed and I think this is a perfectly reasonable claim.

Other Special Damage

39. These are items (a) to (e) of the Plaintiff's Schedule of Damages and come to $94,569.00 which are now agreed.

Interest

40. The Plaintiff is entitled to interest on the sum of $250,000.00 awarded for pain and suffering at the rate of 2% per annum from the date of service of the writ until judgment. As to the pre-trial losses, the Plaintiff is entitled to interest at half of the current judgment rate, i.e. 4.75% from the date of the accident to the date of the trial. I leave these figures to counsel to calculate.

Conclusion

41. The total sum awarded excluding interest is therefore $817,021.00 broken down as follows :

Pain and suffering	$250,000
Loss of overtime	$146,309
Loss of earnings	$53,550
Loss of earnings - swimming lessons	$40,000
Loss of earnings - sick leave	$9,105
Future medical expenses	$21,000
Loss of wages - cadet supervisor	$21,000
Loss of earning capacity	$100,000
Special damages (a)	$27,351
(b)	$21,137
(c)	$24,000
(d)	$9,000
Items (a) - (e) in Schedule	$94,569
TOTAL	$817,021

Cost

42. I propose to make a costs order nisi in favour of the Plaintiff.