LAM SAU YING v. SHIU YAT SANG AND ANOTHER

bjbj HCPI 892/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.892 OF 2002 --------------------- BETWEEN LAM SAU YING Plaintiff and SHIU YAT SANG 1st Defendant THE NEW INDIA ASSURANCE CO. LTD 2nd Defendant ---------------------- Before : Hon Nguyen J in Court Dates of Hearing : 2 March 2004 Date of Judgment : 30 March 2004 ----------------------- J U D G M E N T ----------------------- The plaintiff s claim defendant. When the trial commenced, the defendants admitted liability and the trial then proceeded just on the question of quantum of damages. The plaintiff s evidence AUTONUMOUT The plaintiff gave evidence that she was born on 7 March 1967 and married in 1989 to a Hong Kong permanent resident. In August 1990 she gave birth to a son and in 1999 she came to Hong Kong to live. About three months after her arrival, she began to work as an employee of a food stall where she worked until the date of the traffic accident. Her duties included moving furniture and tidying up the place, washing dishes and delivering food to customers outside the restaurant. She used the restaurant s bicycle to take her to her destinations and her working hours were from 7 p.m. to 3 a.m. She earned $5,000 per month. AUTONUMOUT As regards her physical condition, she said it was much worse than before the accident and she had a bad memory because of the injury to her head and very often she would forget things, for example, forgetting to buy things that she wanted to buy, forgetting about picking up her son and forgetting that she had boiled water. These things did not happen before the accident. In addition, she sometimes felt dizzy and had headaches which she did not have before the accident. She also felt pain in her leg when the weather changed and she could not squat down or move heavy objects. She could not climb to a height and she could not stand for a long time, and if she did there would be pain and numbness. She could only stand for about 20 minutes. As for walking, she would have to rest after walking for 30 minutes. She felt very unwell after climbing stairs. None of these things happened before the accident. She said she could not do the household chores and had to leave them to her husband. She could no longer cycle. Prior to the accident she had hobbies such as walking, cycling, playing badminton, football and swimming. After the accident, she could not continue with these hobbies. AUTONUMOUT After the accident she looked for jobs and she registered twice with the Labour Department. She was given job referrals by the Labour Department but never became employed. Her friend also introduced her to work in a restaurant as a cashier, but she could not take on the work because she was absent minded and she had numbness in her leg. She could only carry out light duties which did not involve carrying heavy objects or standing. She said she could not work full time. If it had not been for the accident, she would have carried on working. AUTONUMOUT She said under cross examination that after the accident she only returned to her job and worked three days. She admitted that in her witness statement, she made no mention of the sports that she said she indulged in before the accident. When she was asked to demonstrate in court she could only manage a half squat. She admitted that when walking she did not require the aid of a walking stick. She said that the only job she could now hold down was as a sweeper of floors but she could still stand for not too long a period. She said she would have headaches two to three times a week and the pain would last for one hour each time. Pain, suffering and loss of amenities (PSLA) AUTONUMOUT The plaintiff suffered the following injuries : head injury over right occipital area with a scalp hematoma of one cm diameter; and fracture of the proximal left medical tibia condyle and avulsion fracture of tibia spine. AUTONUMOUT She was admitted into hospital on 12 July 2001. On 18 July 2001, close reduction and arthroscopic fixation of left tibial spine was done. On 27 July 2001 she was transferred to a rehabilitation hospital where she remained for two months. From 3 October to 9 November, she attended 22 sessions of physiotherapy. On 12 November she was re admitted to hospital until 24 November, during which time a left knee arthroscopic release was done. From 27 November to 10 December, she attended five more sessions of physiotherapy. On 12 December she was admitted to hospital for physical therapy exercises and she remained in hospital until 21 December. Between 21 December and 24 January 2002, she attended eight sessions of physiotherapy. AUTONUMOUT David H.F. Cheng, a specialist in orthopaedics, was retained by the plaintiff s solicitors and he examined the plaintiff on the 10 September 2002. She complained to Dr Cheng of on and off left knee pain and said that the pain was less when she was sitting but increased when she got up after sitting. There was pain after walking for about 20 minutes or standing for about 30 minutes. The pain also increased when she climbed up or down stairs. She complained of stiffness of the knee, so much so that she could only squat half way. She also complained of weakness of the left leg and that she was unable to carry heavy objects and could not cycle. On physical examination, Dr Cheng found that she walked with a limp and she stood with her weight on the right leg, she could support herself on any one leg but only for a short period on the left leg alone. Dr Cheng found that the fractures had united but with a 5 varus deformity. He found a limitation of full flexion which meant that she was unable to lock her knee in a straight position and prolonged standing would be stressful. Because of the limited flexion, squatting would not be full. The wasting of muscles meant that there was likely to be some weakness. His prognosis was good and he was of the opinion that with a return to normal activities there was likely to be improvement in muscle power. However, certain degrees of impairment were likely to remain. He found that there was 12% lower limb impairment which was equivalent to 5% whole person impairment. He was of the view that she should not work at jobs which required prolonged standing or walking and lifting of heavy objects would be difficult and she was advised to do light to moderate jobs. He was of the view that a period of sick leave of 12 to 18 months was reasonable. AUTONUMOUT The orthopaedic specialist instructed by the defendants, Dr Danny Tsoi, basically agreed with the findings by Dr Cheng. Dr Tsoi examined the plaintiff on 1 April 2003. He was of the view that the second operation done in November 2001 improved the knee motion and an X ray revealed solid healing of the tibial plateau fracture. Radiologically, he was of the view that the prognosis was good and the chance of developing traumatic arthritis in the future was remote. He found thigh muscle wasting and stiffness of the left knee which he thought was mainly due to scarring and adhesion within the joint. He agreed with Dr Cheng that the 5 contracture would cast additional stress to the left knee on prolonged standing or walking. He was of the view that apart from deep squatting, the minor disability would not affect most of the plaintiff s activities. He believed that the strength and power of her left thigh would improve after intensive self-muscle training programme. In summary, he was of the view that her left knee had recovered satisfactorily after conservative treatment. Some residual disability was still demonstrated and further improvement was anticipated after another successful arthroscopic removal of the scar tissue. The overall prognosis was good. The left knee stiffness and weakness accounted for 12% permanent impairment of the left lower limb which was equivalent to 5% permanent impairment of the whole person. He was of the view that the plaintiff was physically fit to resume her previous job as a fast food restaurant worker, but there should be no outdoor food delivery work. Duties that required frequent squatting, climbing and lifting heavy weights would be less suitable for her. However, jobs such as being a cashier, a telephone operator, an office general cleaning worker and a stall assistant would be suitable for the plaintiff. AUTONUMOUT Fali Shroff, a specialist in head and spinal injuries, was retained by the plaintiff and he examined the plaintiff on 27 August 2002. He was of the view that she sustained a mild head injury when she fell to the ground and hit the back of her head (the occipital area). Her symptoms were highly suggestive of post concussional syndrome. He was of the view that she suffered a 4% permanent loss of earning capacity. AUTONUMOUT The defendants instructed Dr Edmund Woo who was a neurologist to examine the plaintiff and this was done on 14 April 2003. Dr Woo said in his report that the plaintiff had claimed to him that she had not returned to any gainful employment since the accident but that she was otherwise independent in her activities of daily living, and she could manage public transport and carry out banking transactions although she alleged that she was always accompanied by a member of her family when she ventured outside of her apartment. On a mental state examination by Dr Woo, a mild impairment in tests of memory was shown. Other tests of cognitive functions, including orientation, calculation, concentration, registration, general knowledge and abstract thinking were normal. He found that she had residual headache, non-specific giddiness and impaired memory, consistent with the diagnosis of a very mild post concussional syndrome. He did not expect any further significant improvement in her neurological functions. The mild memory loss accounted for a 1% impairment of the whole person. He was also of the view that from the head injury prospective she should be able to resume her pre injury occupation as a casual labourer in restaurants. The mild memory loss may limit her performance at work while the headache and giddiness may compel periodic rests during the day. The loss of earning capacity was estimated by Dr Woo at 1%. AUTONUMOUT I accept the evidence of Dr Cheng that with a return to normal activities there was likely to be improvement in muscle power. I accept the evidence of Dr Cheng and Dr Tsoi that the plaintiff is suitable to return to work on a full time basis although she has to avoid work which entails prolonged standing or walking or lifting of heavy objects. I do not accept the plaintiff s evidence that she will not be able to obtain full time employment because of the numbness in her leg when seated for a long time. She never made any such claim to the doctors when she was examined. I also do not accept her evidence that prior to the accident she was regularly pursuing hobbies such as cycling, swimming, playing badminton and football. She obviously knew how to ride a bicycle which, because of the accident, she can no longer do. AUTONUMOUT In HCPI 445/1998, Ip Fai v. Chan Kwong trading as Hong Kong Riding Union, the plaintiff suffered from a fractured right pelvis rim and at the time of the trial he only complained of occasional dull pain over that part. He could not lift heavy objects and would experience pain after doing so for a long time. Like the plaintiff in the present case, the plaintiff in that case was unfit for work that required prolonged standing, climbing or squatting but he could manage light to moderate manual labour. That plaintiff was assessed to be suffering from a 7.2% impairment of the whole person (compared with 5% whole person impairment for the plaintiff in this case). Madam Registrar Chu (as she then was) summarized the comparable cases very succinctly when she said at page Mr. Leung submitted that the Plaintiff s case falls slightly below the serious injury category in Lee Ting Lam v. Leung Kam Ming [1990] HKLR 657. He referred to the cases of Lee Ching Por v. Ban Wu (1990) HKLDJ.56 and Ip Lam Yuk Lin v. Yeung Fat & anor. [1991] 2 HKC 480 as relevant comparables. In the first case, the Plaintiff suffered from a fractured femur and was placed at the lower end of the serious injury category. In the second case, the Plaintiff had fracture of femur as well as fracture of radius. She was awarded $70,000 for pain suffering and loss of amenities. That was equivalent to slightly less than 50% of the lower end of the award for serious injury category. In the case of Leung On v. Chan Pui Ki Civ. App. 263 of 1995, the lower end of the serious injury category had been revised upward to $400,000. The effect of inflation between 1996, when the case was decided, and 1997 has been set off by the negative growth since late 1997. Mr. Leung therefore submitted that, in line with the second case, an appropriate award herein would be $200,000, representing 50% of the lower end of the present level of award for serious injury category. I agree that Ip Lam Yuk Lin v. Yeung Fat & anor provides an useful indicator as to the appropriate award for this head of claim. Although the injuries of the plaintiff therein are more serious than the present Plaintiff, that is compensated by the fact that the Plaintiff herein has to give up horse riding, being his favourite hobby and interest. AUTONUMOUT Registrar Chu then awarded $200,000 for PSLA. In HCPI 962/1996, Wong Lai Kai v. Wu Chan Choi & Ors, the injuries suffered by the plaintiff were a fracture of the head of the left fibula. At the time of the trial, the plaintiff could manage work which gave him an opportunity to sit from time to time and even though he could no longer work as a waiter which required standing for long periods, he was able to do other work such as being a store keeper or shop assistant. The plaintiff there still complained of swelling of the left leg on prolonged standing and walking. Pang J awarded $250,000 for PSLA. The two cases relied on by the plaintiff where the awards for PSLA were $350,000 were HCPI 1404/2000, Kamal Rana v. Aoki Corporation, where the injuries were more serious than those suffered by the plaintiff herein and HCPI 76/2002 Cheung Koon Wah v. Leung Ka Hang & Ors, where there was a 7% impairment of the body (as compared with 5% impairment in the present case). The plaintiff there was illiterate and was unable to find any work after the accident. AUTONUMOUT Taking all these cases into consideration, I award under this head the sum of $250,000 which the defendants, in their answer to the Revised Statement of Damages, agreed should be the sum to be awarded under this head. Pre-trial loss of earnings AUTONUMOUT The plaintiff was granted sick leave for 250 days. The defendants accept this period of sick leave (18 months) as reasonable and they accept that $90,000 should be payable to the plaintiff ($5,000 agreed salary 18). The period between the accident and the trial is about 31 months. Deducting the 18 months mentioned above, the remaining period pre-trial is 13 months. The plaintiff on two occasions registered with the Labour Department to look for jobs and the second registration expired on 19 December 2003. Her evidence was she was referred to jobs by the Labour Department but none of the interviews came to fruition. I am of the view that the plaintiff in this respect did all she could to find a job and I award in addition to the $90,000 above the further sum of $5,000 11, namely $55,000. The 11 months mentioned aforesaid represent the period up to December 2003. As regards the remaining two months, namely January and February 2004, I make no award to the plaintiff. This is on the basis that my finding is she is suitable to return to the labour force on a full time basis and therefore she is not entitled to any pre trial loss of earnings for these two months. The award under this head will therefore be $90,000 $55,000 $145,000. Future loss of earnings AUTONUMOUT A table submitted by the defence shows that for the type of work which the doctors have opined the plaintiff would be suitable to do, for example, cashier and dish washer, the average monthly salary is about $6,000 which is higher than what the plaintiff was earning at the job when she sustained the injury. In view of my previous finding that the plaintiff is suitable to return to full time employment albeit in a different capacity, my view is that an award for future loss of earnings would be inappropriate in this case. Loss of MPF benefit AUTONUMOUT Since the introduction of the MPF in December 2000, the plaintiff should be entitled to loss under this head which should be calculated by taking 5% of the plaintiff s loss of pre trial earnings and future loss of earnings. The pre trial loss of earnings was $145,000 and 5% of that would give the plaintiff $7,250. I found above that there was no loss of future earnings and so there is no loss of MPF in respect of that. Loss of earning capacity AUTONUMOUT The total impairment of the whole person caused by the plaintiff s head injury was assessed by Dr Fali Shroff to be 4%. The total impairment of the whole person caused by her leg injury was assessed by Dr Cheng to be 5%. It is obvious that owing to her disabilities, the plaintiff will suffer disadvantage in the labour market. Under this head the plaintiff claims $50,000. It is conceded by the defence that the plaintiff is entitled to an award under this head, and it is accepted that she will be more limited in the type of work that she is able to undertake and she may not be the preferred choice by some potential employers. The defence accepts that an appropriate award under this head would be the equivalent of between six to twelve months of the plaintiff s pre trial earnings and, therefore, they accept that an award under this head of between $30,000 to $60,000 would be appropriate. I award the plaintiff $50,000 under this head. Special damages AUTONUMOUT All the items except the buying of tonic food of $5,000 are accepted by the defence, therefore I make awards for the following special damages : (1) Travelling expenses $2,625 (2) Clothing damaged $100 (3) Fee for purchasing forearm crutches $220 (4) Fee for purchasing deluxe pedal exerciser $440 AUTONUMOUT As regards the claim for the tonic food of $5,000, the defence submitted that there is no indication that such food was consumed on medical advice or that it could have benefited the plaintiff in her recovery, and the plaintiff does not have any receipts to prove the expenditure. However, in accordance with the usual practice of allowing a nominal amount for this item, the defence will be prepared to concede the sum of $2,500. The plaintiff gave evidence that what she consumed was deer tendon , costing about $3,000 which were to strengthen the tendons, tian ma costing about $1,500 which was to replenish the energy in her head and to alleviate her headaches, tortoise, which was nutritious to energy and blood and herbal medicine, together costing about $500. Her evidence was therefore that she spent about $5,000 on nutritious food. She said as the time lapse was too long, she no longer had the receipts. I allow the plaintiff $5,000 under this head. Summary of damages AUTONUMOUT (1) PSLA $250,000 (2) Pre trial loss $145,000 (3) Loss of MPF $7,250 (4) Loss of earning capacity $50,000 (5) Special damages $8,385 _________ Total $460,635 _________ Interest AUTONUMOUT There will also be interest on general damages for PSLA at 2% per annum from the date of the writ until date of judgment. Interest on pre trial loss of earnings ($145,000) and for special damages ($8,385) will be awarded at half judgment rate from the date of accident to date of judgment. ECC deduction AUTONUMOUT The sum of $46,800 paid to the plaintiff under the Employees Compensation Ordinance will have to be deducted from the total sum of $460,635. There will also be an order for costs to be paid to the plaintiff, and since the amount for which judgment has been given is less than $1 million, the costs will be awarded on the District Court scale with a certificate for counsel. These costs are to be taxed if not agreed. The order nisi for costs is to be made absolute at the expiration of 14 days from the day of the handing down of judgment. (Peter Nguyen) Judge of the Court of First Instance, High Court Mr Paul Wu, instructed by Messrs Simon C.W. Yung & Co., for the Plaintiff Mr John Hemmings, instructed by Messrs Massie & Clement, for the 1st and 2nd Defendants PAGE - PAGE A B C D E F 1udk 1udk &`#$ /=1:x & 6" CACV Jeannie MY MokSo ABC.dot setup Microsoft Word 9.0 Judiciary CACV Title Microsoft Word Document MSWordDoc Word.Document.8