CHRISTOPHER GORDON YOUNG v. LEE CHU

bjbj HCPI 1484/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1484 OF 2000 _____________ BETWEEN CHRISTOPHER GORDON YOUNG Plaintiff and LEE CHU Defendant _____________ Before: Deputy High Court Judge Wright in Court Dates of Hearing : 26, 27 & 31 March 2003 and 4 April 2003 Date of Judgment : 15 April 2003 ________________ J U D G M E N T ________________ Shortly after 6 a.m. on 25th March 2000 the defendant was driving a borrowed Mercedes Benz motor car along Tai Tam Road across the Tai Tam Dam wall and on towards Stanley. The plaintiff travelled behind him on a 1200 cc Yamaha motor cycle. After negotiating a series of bends which occurs after crossing the dam wall, the plaintiff started to pass the car driven by the defendant. The defendant turned right, across the path of travel of the plaintiff, intending to enter a road leading into Tai Tam Country Park. The car and the motor cycle collided. The plaintiff was injured as a consequence of the collision. He now claims damages. The defendant disputes both liability and most of the quantum of the claim. LIABILITY The plaintiff and the defendant were the only two witnesses. There were produced a sketch plan drawn by a police officer, a series of photographs taken recently by the plaintiff and a plan of the general scene provided by the Department of Transport. The topography and general road layout is not in dispute. Indeed, when it comes to how the collision occurred, little is. The plaintiff and the defendant each says that, soon after daybreak, he had ridden or driven over the Tai Tam Dam wall from the general direction of Shek O towards Stanley. The plaintiff had earlier ridden his motorcycle in the opposite direction, it being his habit to go for an early morning ride prior to exercising: he was on the return portion of his journey. The defendant says that he was on his way, accompanied by his wife, from Kornhill to Tai Tam Country Park, also to take exercise: this had been his habit four or five times a week for the past 10 years or so. Each says that the lights of his vehicle were on at the time. The plaintiff says that when he started to cross the dam wall he observed the lights of the defendant's vehicle ahead of him, approximately half way along the dam wall where there occurs a bend in the roadway. He then lost sight of the defendant's vehicle but may have caught a glimpse of it after it had left the dam wall and was negotiating the series of bends between the end of the dam wall and the scene of the collision. The defendant says that he specifically checked in his rear-view mirror whilst crossing the dam wall and saw no vehicle was following him: he realistically accepted that had the plaintiff been following him and the motorcycle's headlight burning he would have been aware of the plaintiff's presence. He also accepts that when he saw the plaintiff's motorcycle at the last instant before the collision the headlight was shining. I am satisfied that both vehicles had their lights on. It follows that the defendant failed to observe the presence behind him of the plaintiff. Both plaintiff and defendant agree that after the dam wall, travelling in a southerly direction as they were, there is a series of bends before Tai Tam Road straightens out. The straight portion of road is seen from the photographs tendered in evidence. The plaintiff estimated the distance from exiting the bend to the point of collision as being some 50 metres, the defendant as five to six cars lengths. (I note from photograph 8 that, travelling North, there is a road sign between the point of collision and the bends which indicates that there is a sharp bend ahead at a distance of 100 metres.) Whatever the correct distance it is not disputed that the two carriageways are divided by continuous white lines where they emerge from the series of bends. From the series of bends towards the point of collision, the continuous double white lines diverge with the area between them being a hatched area. The stated purpose of that hatched area is to create a safe haven for traffic proceeding towards the North, wishing to turn, East, into Tai Tam Reservoir Road for there is a dedicated turning lane to permit that manoeuvre. Tai Tam Road is visibly wider at this point. Between the southern end of the hatched area and the northern end of the turning lane there is an open area, the edges of which are marked by broken white lines. Tai Tam Reservoir Road leads off from this point in an Easterly direction. Almost directly opposite that road is another road which leads in a Westerly direction into Tai Tam Country Park. That is a road to which access is restricted, by way of a movable barrier, to certain classes of vehicles: it has a wide entrance way adjacent to a bus stop. The fact remains, however, that it is a road, that it displays a substantial entrance area and that it thus has the effect of creating a four-way intersection, albeit that one of those directions will carry or attract little traffic. As the defendant led the way out of the series of bends towards the point of collision, he reduced his vehicle's speed. Both are agreed on that. Neither looked at his vehicle's speedometer but their evidence is that the defendant was driving at something like 20 kph at this stage. Both are agreed that there was no oncoming vehicle on Tai Tam Road. Both are agreed that the plaintiff moved his motorcycle into the hatched area bounded by the continuous white lines in order to pass the defendant's car. The plaintiff says that after he had moved into the hatched area and had started his overtaking manoeuvre the defendant's car gained a little speed: he accelerated in order to finish passing the car. Without warning and without indicating the car turned across his path of travel in the direction of the road leading into Tai Tam Country Park, itself crossing the southern end of the hatched area. He braked hard but was unable to avoid colliding with the driver's door of the defendant's car. He was flung from his motorcycle, collided with the car and then fell to the ground. The defendant says, conversely, that approaching the southern end of the hatched area he had slowed his vehicle even more: he had looked ahead and seen that there was no oncoming traffic: he had switched on his right indicator: he had turned to his right but only after he had passed the southern end of the hatched area: he had suddenly become aware, at the very last moment before the impact, of the plaintiff's motor cycle which was travelling at high speed. There was a collision. He was able to alight his vehicle after the collision through the driver's door. I accept the plaintiff's version of events. He is a motorcyclist with over 30 years accident-free riding experience. He was riding along behind a slow-moving motor car which he was keeping under observation, waiting to overtake. There was no other vehicle on the road. The car had its lights on. In these circumstances, had the defendant switched on the car's right indicator it would have been immediately apparent to the plaintiff: I do not accept that he would have failed to notice it. Moreover, the defendant's own evidence militates against his having indicated. He accepted that he told the police that he did not check his rear-view mirror before effecting the turn and explained that there was no requirement for him to do so because of the presence, to his right, of the hatched area. There is also his evidence that he checked for oncoming traffic, saw there was none and then switched on his right indicator. If he believed he had no need even to look behind and if he had observed that there was nothing approaching from ahead, one may wonder why he would have felt any need to indicate. The defendant was also very uncertain about just when it was that he had switched on his indicator. In cross-examination he said that as soon as he had turned on his indicator he had turned: in re-examination he initially said that he had started to signal and had just turned, then said that he had been indicating for three or four cars lengths (that is over half his estimate of the distance from the bends) before turning. I am satisfied that the overwhelming probabilities are that he did not indicate. He accepted, fairly, that he would have seen the plaintiff had he looked into his mirror. On his own version the defendant was entirely oblivious of the plaintiff's presence. He also accepts that the sketch plan prepared by the police at the scene accurately illustrates the position of his vehicle after the accident, which is entirely inconsistent with his denial that his vehicle had entered the hatched area. Then there is also the issue of what he says about the plaintiff's speed: he originally suggested that the plaintiff rode at a "high" speed but conceded that, in reality, he had seen the plaintiff at such a late stage that he was unable to estimate any speed. That seems to me to be correct. I see no reason not to accept the speed estimates given by the plaintiff. I do not think that the defendant was being intentionally dishonest in his evidence. He said that he drives to the entrance of the road into Tai Tam Country Park four or five times a week where he parks and goes to exercise. He is very familiar with the area and was simply doing what he always does as a matter of routine - including the fact that he never checks his rear-view mirror before turning. He seemed to me to be relating what he thought happened rather than a recollection of what in fact happened. The plaintiff has satisfied me that the defendant was negligent in the driving of his motor car in that he failed to signal or give any proper warning of his intention to change his course of travel; he turned to the right without ensuring that there was no other traffic which might be affected by that manoeuvre; he failed to keep a proper lookout; and he drove his car without due care and attention to other road users. But that is not an end to the matter as the defendant says that if it be found that he was negligent then so, too, was the plaintiff. He bears the onus to establish contributory negligence. The plaintiff says that he, too, was familiar with the area in general as at the date of the collision: the fact that he says that he had never observed vehicles parked in the area of the entrance to the road into Tai Tam Country Park in the early mornings demonstrates his knowledge of the presence of that road. Even were that not so, the photographs establish clearly that the entrance to the road was visible to both the plaintiff and the defendant as they approached it. Yet the plaintiff says that he entirely discounted the possibility of the defendant turning into that road, regarding the only possibilities of the defendant's route being either to turn left into Tai Tam Reservoir Road or to continue ahead. The plaintiff, having discounted the possibility of a right hand turn, then proceeded to overtake the defendant's car as both vehicles were approaching a four way intersection. To complete the proposed manoeuvre, he entered the hatched area bounded by the continuous white lines and, according to his evidence, intended to travel through that area and then into the dedicated turning lane before, because of the configuration of the roadway, regaining the correct side of the road by crossing the continuous double white lines from what would have been effectively his incorrect side of the road. Whilst a breach of the provisions of the Road Traffic Ordinance or Regulations under it or the Road User's Code is not per se negligent it is a factor to be taken into account in deciding whether the plaintiff was negligent. The presence of the road markings, in addition to his knowledge of the area and the layout of the roads visible to the plaintiff, should have acted as a warning of the hazard of the intersection he was approaching. So too should the intermittent showing of the brake lights of the defendant's vehicle, which the plaintiff testified he saw, have alerted him to the fact that the defendant may execute a manoeuvre in front of him. It is as na ve of the plaintiff to say that he was entitled to disregard the possibility of the defendant turning right because the area into which he would turn is a road with restricted access as it is for the defendant to say that there was no duty on him to check his rear-view mirror because of the presence of the hatched area. The reasonably prudent motorist would not have discounted the possibility of the defendant turning to his right. There is no merit in the criticism of the plaintiff initially accelerating in order to complete overtaking when the defendant's vehicle started to pick up speed immediately before turning. It has been suggested that the second statement made by the plaintiff to the police shows a lack of candour on the part of the plaintiff adversely affecting his credibly. One has only to read the statement to realise immediately from the language that the plaintiff was not its author. This supports his evidence as to how it came into existence, which I accept. I am satisfied that the defendant has established that the plaintiff was negligent in that he attempted to overtake the defendant's car when it was unsafe to do so. In my judgement the plaintiff's own negligence contributed to the collision to the extent of one third, that of the defendant two thirds. QUANTUM The Injuries As a consequence of the collision the plaintiff sustained a number of injuries. There was a brief period of loss of consciousness. He was taken from the scene to Pamela Youde Nethersole Hospital from where he was transferred, at his own request, to Matilda Hospital. He was found to have suffered compression fractures of the vertebrae from levels T4 to T7; posterior dislocation of the left shoulder, with tearing of the muscles of the rotator cuff; fracture of the sternum; contusion of the lung; left trochanteric bursa injury; various abrasions and bruises of the chest, left knee, hip and arm; laceration of the external auditory canal of the right ear, with temporary loss of hearing; and sub-conjunctival haemorrhage of the right eye. It was subsequently established that the plaintiff had also suffered a hyperextension injury of the cervical spine causing two fractures in C7 vertebra. The less serious injuries were treated conservatively and resolved without any residual disability. He subsequently developed pain and mild restriction of the right shoulder which was said to be as a result of compensating for the left shoulder injury. The defendant specifically denied that these injuries were sustained in the collision. I find that each of them was. For the purposes of these proceedings the plaintiff was examined by Dr Lau Hoi Kuen. He was also examined, on behalf of the defendant, by Dr Chiang Si Chung. The sternum X-rays taken in May 2000 showed severe displacement of two parts of the sternum subsequent to the fracture at the sterno-manubrial junction. He had recovered "quite well considering the severity of the injury" according to Dr Lau. Dr Chiang examined the plaintiff a year later and observed displacement in the sterno-manubrial joint. I am satisfied that there is permanent deformity as a consequence of this injury. The left shoulder The left shoulder was initially treated by way of closed reduction at Pamela Youde Nethersole Hospital. That failed. An open reduction was performed two days later. The plaintiff remained in hospital until 1 April 2000 when he was discharged with his left arm in a sling and requiring "considerable oral analgesics". Over the following eight weeks he was seen three times by Dr Fang, the orthopaedic surgeon who was treating him. Dr Fang said this consequent upon an examination of the plaintiff on 17 May 2000: " the left shoulder was still very stiff with flexion of less than 80 degrees. The left shoulder muscles were wasted including the deltoid, supraspinatus and infraspinatus." The plaintiff continued to receive physiotherapy. In June 2000 he sought advice from specialists in Australia. He says, and it seems to me to be commonsense, that at this stage his attention was focussed on the shoulder - being the most apparent injury, given that Dr Fang had expressed early reservations about long-term prospects of full recovery and given that there was ongoing consideration of the necessity for further surgery. This is illustrated by a report dated 29 June 2000 in which a Dr Burrow said: "It is my opinion that we should serially monitor this in the months to come. If the cuff cannot be repaired at a later date (this is highly possible) you will be left with continuing significant shoulder weakness. You will not be able to rotate your arm out to the side or elevate your arm beyond shoulder height. This would represent a significant impairment to you. It may well be that a salvage reconstruction procedure including other muscle transfer (latissimus dorsi) may afford you improved active forward elevation, but certainly your shoulder will never be as strong as it was before the accident. Alternate surgical reconstructive procedures may include shoulder arthrodesis. These surgical options would have to be considered in the future depending on your symptoms." The shoulder was monitored and in the event no further surgery was performed. In the only formal report he prepared, which is dated 20 June 2001, Dr Chiang agreed that only a marginal benefit may result from further surgery, recognised the plaintiff's decision as acceptable, anticipated that some further recovery may occur without surgical intervention and in effect accepted that "a moderate limitation in the range of motion in the abduction and some other directions of motion is likely to remain" In December 2001 Dr Lau found "The mobility of Mr Young's left shoulder has slightly improved in the past 6 months. The movement of his left shoulder remains to be pain free but is still very much limited even after the recent improvement. I still believe that further surgery to his left shoulder is not indicated. Further improvement to his left shoulder in the future, at a time of almost 2 years after the accident, is unlikely." The plaintiff says that such further improvement in the mobility of his shoulder as there may have been since December 2001 is minor: that is consistent with the opinions expressed by Dr Lau and Dr Chiang. He does not claim that there is residual pain in the shoulder. Although this is not the major cause of his present difficulties I accept that the result is that he remains unable to properly lift or rotate his arm in the manner he was before the collision. The cervical spine Initially no injury to the plaintiff's cervical spine was diagnosed. However, the plaintiff says that he soon began to experience problems with his neck and in December 2000 consulted a neurological surgeon, Dr Shrof. Dr Shrof ascertained that his spinal cord and nerve roots were being compressed at the C5/6 interspace: that there were marginal osteophytes from C5 to C7 and the C5/6 and C6/7 disc spaces were narrowed. X-rays revealed two small fractures of the C7 vertebra as well as pre-existing cervical spondylosis. Dr Shrof opined "It was the hypertension of the cervical spine that was responsible for the two fractures seen in the C-7 vertebra; namely at the lamina of the C-7 as well as the spinous process of that vertebra." and "The radiological evidence of cervical spondylosis will have been present for some years. The accident therefore occurred at a time when the cervical spine was already compromised by degenerative process. Any trauma to the cervical spine in the presence of pre-existing cervical spondylosis will in time give rise to significant symptoms related to the cervical spine with the subsequent need for cervical fusion surgery. As a general rule, cervical spondylosis is a self-limiting disease, except where trauma has supervened. In this particular case the trauma of the accident was very severe indeed to cause so many fractures." In subsequent examinations Dr Lau and Dr Chiang agreed that the degenerative changes arising from cervical spondylosis pre-existed the collision and agreed that the plaintiff is "having genuine neck symptoms" since the accident. I accept that this further injury was sustained during the collision. In the report on his final examination of the plaintiff, Dr Lau indicated that, contrary to Dr Chiang's finding, he found "some restriction in the mobility" of the plaintiff's neck. The thoracic spine The upper back is now the plaintiff's main area of continued pain and discomfort. Dr Lau and Dr Chiang also agree that the plaintiff suffered compression fracture of four vertebrae, T-4 to T-7, resulting in a kyphotic deformity of the thoracic spine. Dr Lau and Dr Chiang appear to agree, also, on the fact that the present pain is muscular in origin rather than skeletal: in Dr Lau's opinion " the deformity and the abnormal stress to the region have, led to muscle fatigue of the long spinal muscles and therefore the severe pain in the interscapular region." The existence, certainly the extent and consequences, of that pain is questioned by the defendant. It is thus necessary to look at the medical reports in more detail. Although there is no record of any complaint being made to him about pain, Dr Fang noted in an examination as early as 17 May 2000: "There was also tenderness over the middle of the medial border of the right scapula." Dr Burrow's report of 29 June 2000 contains the first record of the interscapular pain thus: "During the last follow up at 8 weeks after injury, he still had significant pain. He had returned to work in the law courts. At the end of a working day he would have disturbing pain over the medial border of the right scapula. There was prominence of the upper part of the sternum with a rounded upper dorsal kyphosis. There was tenderness over the T6 spinous process with a click on palpation. There was also tenderness over the middle of the medial border of the right scapula." and the following opinion " you are experiencing quite severe pain from this and your sternum presently. Some of this pain can be expected to settle over the next 3 to 6 months, but it may well be that you are left with some localised pain and deformity from this fracture on an ongoing basis. This would be best treated by use of simple analgesics, anti inflammatory, local head, hydrotherapy, massage and or use of allied health including acupuncture or manipulative therapy. Generally speaking from a pain point of view I believe the sternal and vertebral fracture injuries will continue to bother you with pain on an ongoing basis but will be managed by non operative means." This report demonstrates that although the issue most concerning the plaintiff at that stage may have been the injury to his shoulder, he was already complaining of pain in the upper back less than three months after the collision. Dr Lau first examined the plaintiff in September 2000 and recorded the following: "While all the attention so far has been focused on his left shoulder, my impression is that the more severe disabling factor for him now is the persistent pain in his high back. With the pain being aggravated by any longer period of sitting and standing, he cannot return to work as a barrister at all. He cannot have a reasonable use of the computer or writing for a longer time. At this examination, there is no tenderness over the T6 vertebra. The site of tenderness is actually over the right paraspinal muscles adjacent to the inferior half of the right scapula. Therefore the main site of injury to his back seems to be on the soft tissue rather than on the spine itself. " and recommended a bone scan if the plaintiff continued to suffer pain after the lapse of a further three months. The following month Jonathan Moses, a physiotherapist treating the plaintiff, observed: "Gradually the deep pain to the right of the spine around inferior border of the scapular became more and more of a problem. As Chris tried to become more active, he was getting incapacitated by this deep stabbing pain and I also noticed that he was apparently becoming a little more stooped in his posture. We started a programme of postural correction exercises, but it seemed that more he tried to actively correct the position, the more the area ached. His only relief seemed to be with supine lying and occasional manipulation of the thoracic spine. I believe that Chris' pain in his back is coming from his spine and the kyphosis he has developed. I have tried to release some of the stiffness of his thoracic spine, but this can aggravate as much as relieve his symptoms. He also has suffered a fractured sternum at around the same level as his fractured vertebrae and I'm sure that in combination this exacerbates his symptoms." When Dr Lau examined the plaintiff again in April 2001, some six months later and a little over a year after the collision, he had various medical reports obtained in Australia before him and commented: "As has been noticed before, his main problem continues to be the persistent and severe pain over his high back. He is also suffering from occasional pain over the base of his neck as well as crepitus in the region for the past 6-7 months. I do not consider surgical intervention as a possible way of improving the condition of his back pain. He should have further conservative treatment It is now about one year after the accident. I think the condition of his left shoulder and the thoracic spine will probably come to a static condition by about one and a half to two years after the accident." Dr Chiang examined the plaintiff two months later in June 2001. He found that the kyphosis of the spine was a consequence of the compression fractures of the vertebrae and that it accounted for the decrease in the range of motion in the plaintiff's back which he had observed. He went on to express the following opinions: "As the currently preserved range of movement could still allow for a reasonable range of movement of the back, if given further time and strengthening, some improvement in the current symptoms in the upper back could also be acquired. The upper back condition would likely reach the stabilized stage in the coming few months. Though improvement could be acquired, some moderate degree of residues is likely to be present at the stabilized stage." In a subsequent letter Dr Chiang indicated that a period of "about 1 years" absence from work would be reasonable. I pause to resolve an ancillary issue. The plaintiff complains of an error in Dr Chiang's report which was drawn to his attention at an early stage. Dr Chiang's response is, I regret to say, less than helpful. I accept the plaintiff's evidence that the nature of the complaint he made was erroneously recorded by Dr Chiang. Dr Lau examined the plaintiff for the final time in December 2001. He had Dr Chiang's report available to him. He reaffirmed his previous opinions in regard to the nature of the injury to the plaintiff's thoracic spine. He disagreed in clear terms with Dr Chiang's prognosis: "I do not agree with Dr Chiang that further improvement in the condition of his upper back and neck will occur in the coming months. In fact it is quite possible for the problem to deteriorate still further. I expect the condition of his high back and neck to be permanent. He has received adequate conservative treatment up to now but without good relief. Further treatment, including surgery, is not going to benefit him." In arriving at this opinion Dr Lau had the advantage of examining the plaintiff six months after Dr Chiang, close to two years after the collision. He had previously indicated that he anticipated that the plaintiff's condition would have stabilised at about then, which accords largely with Dr Chiang's expressed views. Dr Chiang had indicated that he expected further improvements in the plaintiff's condition by this stage: Dr Lau recorded that, the shoulder injury aside, there had been no further improvements. Based on that factor, and his examination, Dr Lau reached the conclusion that there would be no further improvement in the condition of the plaintiff's neck and upper back. I have not had the benefit of hearing oral evidence from either of the orthopaedic surgeons. My decision is to be based on medical reports, of which the most recent is some 15 months old. I find it surprising that in a claim of this size no more recent reports are available. Be that as it may, in the light of Dr Lau's final report I see no reason not to accept his opinion as to the likelihood of lack of further improvement. The plaintiff's evidence in Court is that, as a matter of fact, there has been no improvement in the condition of his back and neck. There is no good reason for me not to accept that evidence. PSLA Although I have considered it necessary to deal with the injuries individually, it is their cumulative effect for which the plaintiff is to be compensated (Leung On & Anor v Chan Pui Ki [1996] 2 HKC 565 @ 576). Leaving aside for the moment the question of his ability to resume practice, the plaintiff says that his present condition is that he has been unable to pursue the various sporting activities which he enjoyed pre-accident which included, this not being the subject of cross-examination, motor-cycling, sailing, private flying, tennis, scuba diving, skiing, water skiing, wind surfing, weight lifting, jogging and fencing: he is unable to take up, as he had intended, golf: he is unable to swim: he is limited in the periods for which he is able to write, draw or use a computer: he is unable to ride a motorcycle and experiences difficulty in driving a car: he is unable to perform heavy manual tasks: sitting or standing for extended periods results in pain which is alleviated only either by a change of position or by lying prone: from being an able-bodied, fit and healthy person he is now generally limited in his movements and activities which he finds to be a depressing situation, which the spectre of possible further deterioration in his condition as foreshadowed by some of those who have examined him, does nothing to alleviate. Certainly in regard to sporting activities, the ability to perform heavy manual tasks, the driving of motor vehicles and similar activities, it is almost self-evident that the plaintiff suffers from a material reduction in his enjoyment of life. Much of this would be attributable to his shoulder injury alone. The extent of the intrusion of the pain in his thoracic spine into his former lifestyle is more difficult to evaluate. However, I am satisfied that it contributes to an overall real impairment. The defendant appears to try to find comfort in the fact that the pain is of muscular origin rather than coming from the fractures of the thoracic vertebrae. There is no merit in that contention. As I have noted (para. 38 ) both Dr Lau and Dr Chiang are of the view that the cause of the pain is muscle fatigue consequent upon the kyphotic deformity of the thoracic spine which both accept was caused by the compression fracture. The plaintiff initially claimed that his injuries fall at the upper end of the "substantial injury" and lower end of the "gross disability" categorisations set out in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. He has realistically indicated that he now accepts that an award at the upper end of the "serious injury" category would be appropriate. The defendant contends that an award at the lower end of that category is proper. A court compares a given plaintiff's injuries with injuries described in previously decided cases in order to determine an appropriate category. An award is then made from the range of amounts fixed by the Court of Appeal as applying to that category. In Leung On & Anor v Chan Pui Ki (supra) the Court of Appeal revisited the range of amounts applicable to the various categories: that for serious injuries was determined to be between $400,000.00 and $540,000.00. I have had regard to the various cases to which I was referred and additionally to Chan Pui Kuen v Lee Oi Wah [2001] HKEC 1066, Boivin v Wong King Yin & Anor [2001] HKEC 14 and Anderson v Wui Yip Co. Ltd & Anor [2002] 1 HKLRD 125 amongst others. In my judgment the plaintiff's injuries fall towards the upper end of the "serious" category and are deserving of an award of $500,000.00. Loss of income - generally I propose to consider the available evidence concerning the plaintiff's ability to generate an income; then to determine the figures upon which to base the calculations which need to be made; finally to perform the calculations themselves. The plaintiff has practiced as a barrister, in Hong Kong, since 1977 predominantly at the criminal bar. He has also been a cartoonist. He was born on 12 October 1947, was 52 at the time of the accident and is now 55. His claim for loss of income arising from the collision is an area of great contention both from the point of view of his income and potential income as well as from his ability to resume practice. He derives a modest income from his cartoons: he did so before the collision and continues to do so now: I propose to disregard this aspect save for one purpose to which I shall return (para. 68 below). The plaintiff's ability to generate an income The plaintiff's claim is based upon the primary contention that he is unable to generate any income. He closed his practice in August 2000. He says that he is unable to return to practice as a barrister and unable to take up any other employment. There is a division between Dr Lau and Dr Chiang. It was suggested to the plaintiff on behalf of the defendant that he had made the decision to close his practice before August 2000 and that that decision was unrelated to the injuries he sustained. He disputed this. He testified that he had already been advised by practitioners whom he had consulted prior to August 2000 that the long-term prospects were that he would be left with a residual disability. In these circumstances, rather than maintain the expense of his practice without any income, he decided to close it. That is a proper answer to the defendant's suggestion and an acceptable decision. Even Dr Chiang accepts that a period of 1 years of absence from practice would be acceptable. The reality of the situation is that complete absence from practice for a period of 1 years inevitably would have a seriously damaging effect on a barrister's practice. When the Plaintiff was first examined by Dr Lau in September 2000 he said: "He certainly cannot resume work as a barrister now. Whether he can resume work at a later stage will depend mainly on the severity of his back pain." Dr Chiang expressed the following opinion after the examination in June 2001: "At the time when the condition stabilizes, Mr Young should be able to return to work as a barrister. Inconvenience from the back and left shoulder residues would give rise to some reduction in his working capacity. The left shoulder would cause a limited capacity of the left upper limb when carrying of a very heavy briefcase is required. The upper back residues also might not allow him to carry very heavy brief cases. Mr Young had to execute good sitting posture with frequent rising up for temporary ambulation when prolonged sitting at work is required. This is to avoid accumulated stress to develop in the upper back, in which the endurance to prolonged stationary sitting posture would be decreased." upon which Dr Lau commented, after the December 2001 examination: "Dr Chiang is of the opinion that Mr Young should be able to return to work as a barrister. I tend to disagree with him. The long period of time a barrister needs to spend in reading files, standing and sitting for a trial in the courtroom will definitely cause a severe pain in his high back and neck. I consider it impractical for him to resume full time working as a barrister. The court cannot and will not allow him to take such frequent periods of rest during court time to rest his back. " However, it is necessary to bear in mind that when Dr Chiang expressed his opinion he anticipated further physical recovery which, as already referred to, was subsequently found by Dr Lau not to have occurred. Thus, one of what must have been the factors (further recovery) upon which Dr Chiang based his opinion that the Plaintiff "should be" able to return to his occupation has been shown not to have eventuated. This, it seems to me, would explain Dr Lau's tendency to disagree with Dr Chiang. The defendant contends that Dr Lau's phrase "I consider it impractical for him to resume full time working as a barrister" indicates that the plaintiff is able to return to part time practice. If that is what Dr Lau meant then, with respect, it ignores the reality of the situation when considered pragmatically. Aside from what seems to have been an isolated foray into the world of matrimonial practice, the Plaintiff practiced principally as a criminal barrister. That involves, in a successful practice, extended periods of court appearances. He says, and there cannot be any sensible dispute about this, that he suffers from recurrent debilitating high back pain: he says that when that pain strikes the only real, albeit temporary relief, is to stand if sitting, to sit if standing or ultimately to lie down, a remedy which is unlikely to prove popular with either the court or any client during the course of a court appearance: he says that whilst that pain does not necessarily occur severely on a daily basis, it occurs frequently and unpredictably which would preclude accepting briefs for longer trials: he says that, in any event, even when the pain is absent there is an enduring discomfort which affects his ability to concentrate: he says that both the discomfort and the pain would also interfere with trial preparation. The defendant has submitted that the fact that the plaintiff was able to attend court for the duration of this trial demonstrates that he would have no difficulty in returning to practice. That ignores all of the practical factors which I have just related as well as the fact that the plaintiff was seated throughout. Moreover, when he was asked at the end of a day whether he was in pain his response was that he was experiencing a degree of discomfort but that that had been a "very good day". There is nothing in the plaintiff's evidence, nor the manner in which he gave it on this issue, which causes me to doubt what he says or to conclude that he is exaggerating his condition: he is largely supported by the, dated, medical reports. There was no proper basis for the defendant's suggestion that the Plaintiff was exaggerating his present condition: it does the defendant no credit. Dr Lau's opinion, which I have accepted, is that the plaintiff's situation is unlikely to improve beyond its present state: on the contrary, there is reason to believe that there may be deterioration. Looking at the evidence as a whole I find that, realistically, the plaintiff is unable to return to his former occupation as a barrister. Conversely, I am not persuaded that he is precluded entirely from earning some form of income aside from that from his present activities as a cartoonist. It is not a question of whether the defendant has discharged any onus regarding the plaintiff's failure to mitigate his damages but rather that the plaintiff has not discharged the onus to satisfy me to the full extent of the damages he says he has suffered. He testified that he simply had not tried to return to practice. He had thought about requalifying as a solicitor but had dropped the idea, having convinced himself that the job is demanding and that he would be unable to do more than an articled clerk or junior solicitor. Even if he were correct in that assessment I see no reason why other fields of suitable employment should not be open to him. His evidence is that he has no formal training in business, nor any outside the field of his profession; he has limited capital, upon which he is living, which he does not wish to risk by investing in a business dependent upon his own skills. The situation is analogous to that in Tang Shau Tsan v Wealthy Construction Company Ltd CACV 58/2000 where Rogers, VP, said at p. 6: "The judge was therefore faced with the difficulty of trying to assess how the plaintiff's loss should be calculated. Because the plaintiff could give no relevant evidence as to his experience in attempting to obtain relevant employment, the judge had no yardstick of that nature to go by." and, at p. 9 Mayo, VP, said: "It is however clear from the judgment that the Judge reached the conclusions he did by making his own assessment of the position. His task was not a simple one by virtue of the plaintiff making no real attempt to rejoin the labour market [in his former occupation]." The plaintiff is presently earning some $15,000.00 a month as a freelance cartoonist. As indicated earlier, he had similar income before the collision so I ignore it for the purpose of the claim. It does provide some indication, however, that he has a potential earning capacity. Doing the best I am able, and recognising the arbitrariness of the figure, I determine that the plaintiff has a residual earning capacity of 20% - whether he achieves that by taking the occasional brief, by drawing more cartoons or by taking up employment in an entirely new field. I will make the adjustment to post-tax income. The figures The defendant submits, primarily, that the evidence before me is so tenuous that to attempt to quantify the plaintiff's claim would amount to nothing more than speculation. That approach is misconceived and does the defendant no credit: the authorities to which I was referred, especially Hong Kong & Macao Hydrofoil Co. Ltd v Ng Chan Wai & Yeung Ying (administrators) & Ors HCA A209/1984 and Wong Yuk Kim v Yip Hing Keung & Ho Kwok Choi HCA A1053/1985 are distinguishable and unhelpful. Rogers, VP, in Ho Yee Mui v Liu Hon Loong & Kowloon Motor Bus Company (1933) Ltd CACV 507/2000 in which, because of a dearth of specific evidence as to potential income, a global figure was awarded, stated: " what the judge was doing was trying to assess in monetary terms as best he could, the loss that he could envisage that the plaintiff had suffered as a result of the accident. That is, in effect, exactly what a court has to do when assessing damages for personal injuries. at the end of the day the court is assessing in monetary terms as best it can the loss which the plaintiff has sustained." In Joyce v Yeomans [1981] 1 WLR 549 Brandon LJ (as he then was) said, at 557: "The basis for finding a multiplicand is slender but judges are often faced with having to make findings of fact on evidence which is slender and much less convincing than would be desirable." There is sufficient information before me in this matter to enable me to make a reasonable assessment which is fair to both parties even though the result may be no more than an informed guess. It will inevitably be an arbitrary figure. The defendant's fall back position is that, if an award is to be made, it should be calculated based strictly upon returns of income declared to the Inland Revenue during the period for which accounts have been placed before me. I am enjoined not to "go behind the figures disclosed to the Inland Revenue" as Seagroatt J, said in Yim Fat Fong v Wong Kim Hung & Anor [1999] HKEC 1216. The plaintiff is not asking me to do so: he says that the figures which are reflected as gross fee income in the submitted accounts should be used as a starting point to estimate what his gross fee income would have been but for the accident and that, although the expenses reflected in those accounts were legitimate and allowed in respect of those years, it would not be necessary for him to incur expenses on the same scale in the future. The reason why the parties have taken these contrary views is accounted for by the plaintiff's drop in income over the period 1993 to 2000. Tabulation of the figures makes this immediately evident: Year Gross Fees Expenses Net before tax 31.3.1993 1,532,330 889,650 642,700 31.3.1994 2,012,434 1,085,250 927,184 31.3.1995 1,403,050 1,085,335 317,715 31.3.1996 980,500 788,704 191,796 31.3.1997 857,085 742,699 114,386 31.3.1998 1,081,130 898,724 182,406 31.3.1999 1,066,320 715,762 300,588 31.3.2000 1,689,265 525,675 1,143,590 If one were simply to take an average over the period, the plaintiff's gross fee income amounted to $1,327,764, expenses to $841,475 and taxable income $486,289. The plaintiff says that such an approach is incorrect as it does not take account of the reasons for the drop, reasons which would have been eliminated. The defendant says that it is not the correct approach because certain fees should be excluded from the income for the year 2000 and because the expenses have been artificially suppressed in that year. The issue of the exclusion of fees from the 2000 return is one issue which is readily resolved. In that year, as he was closing his practice, due he says to an inability to work because of the collision, the plaintiff changed his accounting method: until then he had been showing as income fees actually received by him whereas in 2000 he showed fees debited but not necessarily received. He says that this was done, not as was implied by the defendant to inflate this claim but, on the advice of his financial adviser, to bring all moneys into account so as to "square the books" with Inland Revenue. In reality the fees which form the bulk of the income disclosed in 2000 related to work done in the period September 1997 to April 1999 on a single matrimonial matter: some of those fees had been paid by the Legal Aid Department on an interim basis, some remain unpaid pending taxation of a party and party bill of costs scheduled for later this month. The fact is that he did cease to practice and at some stage would have had to finally account to Inland Revenue: he did so at the stage he stopped practising, which strikes me as being entirely appropriate. Obviously the effect is to artificially increase the gross fee income for the 2000 return specifically, which would make it inappropriate to rely solely on that return, but he is certainly entitled to have me take those fees into account where I am looking at an extended period, including the years in which they were actually generated. The plaintiff says that the drop in fee income during the period is attributable to his involvement in other matters which detracted from the time he devoted to his practice: specifically, in the year ended 31 March 1995 he took time out to write a novel, as yet unpublished, which took longer than anticipated; in the year ended 31 March 1996, he had spent substantial periods trying to resolve problems within a computer game manufacturing company, Microsport, in which he had invested; in the year ended 31 March 1997, he had met, in Australia, a woman who was to become his wife in late 1997, and had spent a substantial portion of his time visiting her there; in the years ended 31 March 1998 and 1999, he had been involved with helping her start and establish a business venture after she had moved to Hong Kong. It is the plaintiff's evidence that it was always his intention to return to practice full time once his wife's new venture was properly underway and anticipated that he would have done so in 2002 were it not for the accident. He points to the fact, as evidenced by the expenses reflected in the accounts, that he had maintained a set of chambers and employed a clerk full time even throughout the years when he experienced a downturn in income: he goes further and says that he also joined, simultaneously, another set of chambers. He suggests that these factors demonstrate his intention to return to practice in due course. I am prepared to accept that that may have been his long-term intention. There is nothing to suggest that the date of 2002 is unrealistic. Whilst I do not doubt that he was involved in the various interests to which he referred, I do not accept that they consumed the amounts of time claimed so as to be the sole cause of the drop in fee income. His evidence regarding the extent of his involvement in Microsport and in his wife's business was generally unconvincing. This will affect the fee income which he estimates he would have generated after his return to practice. At the very least the evidence shows that the plaintiff would readily absent himself from his practice for extended periods to pursue other interests. I do not say that critically but it does seem to me that there has to be a specific allowance made for the contingency of his continuing to be distracted even had he returned to full time practice in 2002. In view of the approach I take towards the plaintiff's expenses (paras. 83 and 87) I regard it as unnecessary to analyse in any detail either the accounts and records which the plaintiff submitted or his evidence. There is one matter upon which it is proper I comment: it is plain that the reference in the fourth paragraph of the letter dated 5 September 2000 from the plaintiff to his accountant (Bundle D, page 46) to "these accounts" is a reference to the draft accounts which were submitted to the Inland Revenue by his accountant under cover of a letter dated 11 September 2000. That is demonstrated by both a reference to that letter and its enclosures (Bundle D, page 55 et seq) and by reference to the letter addressed "To whom it may concern" (Bundle D, page 48) which is effectively a certificate dealing solely with income. The plaintiff's explanation in his evidence is incorrect. The plaintiff's claim is calculated on the following assumptions which he says are supported by his past accounts and by his explanations for the drop in income: his income would have increased "in line with inflation and the general increase in income in the profession"; until his return to full time practice in 2002 he would have had an annual gross fee income averaging $1,740,000,00: his expenses would have been $96,000.00 per annum; in 2002 his income would have averaged $2,400,000, whilst his expenses would have remained at $96,000.00 per annum; in 2003 his income would have averaged $2,640,000.00, whilst his expenses would have remained at $96,000.00 per annum; and from 2004 his income would have averaged $3,000,000.00, whilst his expenses would have remained at $96,000.00 per annum. In view of the many imponderables, evidence of actual earnings at the Bar would probably not have been particularly helpful in arriving at an appropriate figure even had they been available to me. Perhaps more so than in other professions, skills at the Bar vary enormously over a wide spectrum; from fumbling apprenticeship to sheer artistry. And so do the fees. Conditions at the Bar also change from time to time, in the amount of work available, in the number of practitioners sharing it, in the rates charged. There is one aspect of the plaintiff's projected income which requires specific comment. He expresses the view that he would develop a matrimonial practice. No doubt given the fee income generated by the one major matter in which he was briefed he would wish that to be so, but his view seems to be based on optimism rather than any factual basis. Pre-trial figures Doing the best I am able on the information before me, I see no reason to assume that the plaintiff's fee income for the first three years after his full time return to the Bar would have varied significantly from the average he had generated in past years, namely $1,327,764.00 per annum. Given his substantial absences from full time practice it would have been necessary for him, effectively, to re-establish himself, albeit not entirely from scratch: he would have been able to rely, to an extent, upon his seniority. I have some regard to the fees disclosed on the few backsheets which have been discovered. It seems to me to be fair to both parties to assume that, for the first three years, the plaintiff would have generated the same amount, on average, as he had previously: perhaps a little less in the first year and a little more in the third but, on average, the same as before. For the period April 2000 to March 2003 I assess the gross fee income as $1,327,764.00 per annum. The claiming of amounts as expenses in past years must be predicated upon the basis that those expenses all were necessarily incurred to generate the gross fee income. I regard his estimation of his expenses at $8,000.00 per month or $96,000.00 per annum as fanciful. Apart from anything else, his calculation is based on the unrealistic assumption that whilst his income will rise in accordance with inflation, his expenses will not. Indeed, in his evidence he accepted that the figure is not tenable. He testified that his expenses in the future would have been whatever his accountant had told him would be claimable. That impresses me as being a truthful and likely approach. And, on that basis, having assessed his gross fee income pre-trial as equivalent to his past average income, there is no commonsense reason for not similarly taking his previous average expenses. For the period April 2000 to March 2003 I assess the expenses as $841,475.00 per annum and net income thus $486,289.00 per annum before tax, for which I shall allow a deduction of 16%. Post trial figure The plaintiff says that he would have continued in practice until at least age 65, 9 years from now. I have no difficulty with that. Self-employed persons will commonly continue to work for so long as they are able. I have to fix an arbitrary figure which fairly represents the plaintiff's average earnings over those 9 years. That is an extended period during which the plaintiff's years would have been advancing and his work/earning capacity dwindling. It is reasonable to assume that the plaintiff's gross fee income would rise once he had re-established himself at the Bar but his assessment is, in my opinion, wholly optimistic. His best-ever year for gross fees was 1999/4 and even then he only just broke $2,000,000.00. Taking that into account and based upon the material and considerations to which I referred when considering pre-trial loss of income, I assess the plaintiff's average gross fee income to be $1,750,000.00 per annum. In arriving at this figure I have excluded from consideration the possibility of the plaintiff devoting less than his full attention to his practice. I regard the proper place to allow for such a contingency as being in the determination of the multiplier. It follows from what I said previously (para. 85) that I do not accept his estimation of expenses. To allow for small economies which he may have been able to achieve, changes of policy in regard to deductible items of methods and other eventualities I assess average expenses during the same period as $800,000.00 per annum and net income thus $950,000.00 per annum before tax, for which I shall allow a deduction of 17%. It is now necessary to determine a multiplier. The defendant has not contended for any multiplier, it being his position, based upon Dr Chiang's report, that there is no claim for future loss. He suggests that a token amount equivalent to 12 months net income would be a fair gesture. The plaintiff claims a multiplier of 8. Given all the circumstances relating to this plaintiff, I regard that as a realistic basic claim. I say basic claim as, in my judgement, there should be a deduction from that figure to allow for the specific contingency of the plaintiff once again straying from full time practice to pursue other interests (see para. 79). It is his case that he has done so in the past and for extended periods with substantial financial consequences. There must be a real prospect that he would have done so again: it is only proper that the defendant receive the benefit of that prospect. Consequently I reduce the multiplier to 7. The calculation On the basis set out in paragraphs 84 and 85 the plaintiff's pre-trial loss of income is $486,289.00 x 84% (income tax) = $408,482.00 $408,482.00 x 80% (residual earning capacity) = $326,785.60 $326,785.60 x 3 (25 March 2000 to 26 March 2003) = $980,356.80 On the basis set out in paragraphs 86 to 89 the plaintiff's post-trial loss of income is $950,000.00 x 83% (income tax) = $788,500.00 $788,500.00 x 80% (residual earning capacity) = $630,800.00 $630,800.00 x 7 = $4,415,600.00 Past medical expenses and property damage The plaintiff has claimed, and the defendant conceded, an amount of $281,750.44 under this head, which I award. Future medical expenses The plaintiff has seen fit to claim such amount as the court may assess but has placed no evidence before me of the possibilities that future treatment will be required, what the nature or extent of that treatment might be or what the possible cost might be. For all I have been told the occasional aspirin may suffice - or a spinal fusion may be necessary. Had the plaintiff furnished an up-to-date medical report or even a report directed solely towards future potential medical expenses I may have been in a position to make an assessment: as it is I would only be able to take a shot in the dark without any confidence of being anywhere near correct. The defendant has offered an amount of $10,000.00: if he is prepared to pay that sum, I am prepared to order. Future other expenses The plaintiff has claimed $240,000.00 as being the cost of engaging (presumably part-time) domestic assistance at a rate of $2,000.00 per month for 10 years. He says, in his revised Statement of Claim, that he requires this assistance as he can no longer lift heavy things or do physical household work. In cross-examination he described his daily routine: he shares, free of any rent, a residence with a friend and he said that he spends part of his day performing household chores. However, I accept that at least his left shoulder injury would prevent him from performing heavy tasks or tasks at in an elevated position and that this may necessitate, from time to time, the engagement of a tradesman where, but for the injury, the plaintiff would have performed those tasks himself. Some allowance should be made for that but not for regular domestic employment. Once again the defendant has offered the sum of $10,000.00 which appears reasonable to me. Interest The plaintiff has claimed interest on PSLA at 2% p.a. from the date of service of the writ (13th December 2000) to date of judgment. This is not disputed. It amounts to [($500,000.00 x 2% x 2) + ($500,000.00 x 123/365)] = $23,369.90. The plaintiff also claims interest on special damages at half judgment rate from the date of the collision to date of judgment, which is not disputed. SUMMARY There will be judgement for the plaintiff in the following amounts: PSLA $500,000.00 Interest thereon $23,369.90 Past loss of income $980,356.80 Future loss of income $4,415,600.00 Past medical and material loss $281,750.44 Future medical expenses $10,000.00 Future household assistance $10,000.00 $6,221,077.14 Less contributory negligence $2,073,692.38 Total $4,147,384.76 plus interest on special damages at half judgement rate from the date of the collision to date of judgement. There is also an order nisi for the costs of the plaintiff, as taxed or agreed to be paid by the defendant. Liberty to restore for argument on costs or any consequential matters on notice given within 14 days of this judgment. (A R Wright) Deputy Judge of the Court of First Instance High Court Mr Peter Graham, instructed by Messrs Haldanes, for the Plaintiff Mr Alan Leong, SC leading Mr Daniel K K Chan, instructed by Messrs Chong & Partners, for the Defendant PAGE - A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T 1udk 1udk i$&`G AB2@ H;vC AdT,F 4T8S *`lY rLy.E _Rzd *`lY 4T8S {tF*tt& user ABC Paper05.dot setup Microsoft Word 9.0 Judiciary Hong Kong Title Microsoft Word Document MSWordDoc Word.Document.8