Xu Xinhong v. Cheung Chu Lau

HCPI 554/2015

[2018] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO 554 OF 2015

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ASSESSMENT

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INTRODUCTION

1.This is an assessment of damages.

BACKGROUND

2.The plaintiff was born on 4 August 1974 and educated in China up to junior secondary school (Form 3).  She married with Mr. Sit Chiu Hing in 1995 and came to in Hong Kong from 2003. 

3.The plaintiff worked for different jobs, a convenience store worker, restaurant waitress and security guard. Until about 2009, she decided to be a housewife taking care of the family and 2 boys, born in 1996 and 2004 respectively.

4.In April 2012, she obtained a taxi driver licence, she started to work as a taxi driver in May 2012.  Unfortunately, on 5 June 2012, she met the subject accident.  At the material time, she stopped her taxi for the red traffic light.  However, the MGV driven by the defendant hit the taxi from its back causing her to suffer injuries.

5.The plaintiff was taken to the A&E Department of Tuen Mun Hospital.  From its report dated 5 January 2013, the medical officer said:

“The chief complaint was neck, chest wall and right leg injury.

Medical examination revealed the following conditions:

There was tenderness over her cervical spine, right chest wall and right leg. There was numbness over her right arm.

Her chest X-ray was clear.

X-rays of her ribs, cervical spine, pelvis and right elbow did not reveal any fracture. Besides ultrasound examination of her abdomen did not reveal any intra-abdominal bleeding.

She was admitted to the orthopaedic ward for further management.

The mode of injury was compatible with blunt trauma.”

6.The O & T Department of Tuen Mun Hospital added on its report dated 2 April 2013:

“8. She was given analgesics and started on physiotherapy.

9. She requested and was therefore discharged from our unit on 14 June 2012.

10. She was subsequently being followed up in our out-patient clinic.

11. She still suffered from residual neck pain. There was no more upper limb weakness.

12. Her latest follow-up was on 3 January 2013.

13. There was still neck pain with radiation to upper limb.

14. Physical examination showed that her cervical spine was non tender but there was bilateral paraspinal muscle spasm. There was neck stiffness. Her upper limb power and sensation was intact. There was no myelopathic hand sign.

15. Magnetic Resonance Imaging (MRI) of her cervical spine was done, showing central disc herniation from C3 to C6 causing mild to moderate cord compression. C5/6 level is most severly affected.

16. Meanwhile, she was also being followed up in the Department of Neurosurgery.  Since neurosurgery will continue to follow-up her cervical spine problem, she was discharged from our clinic after the latest follow-up.”

7.The report of the Department of Neurosurgery, Tuen Mun Hospital dated 16 April 2014 further informed:

“She was referred from the Department of Orthopedics for head injury following road traffic accident on 5/7/2012.

She complained of decreased right sided power.

On examination there was limited flexion and extension of the neck. There was reduced power in the right upper limb. There was decreased sensation in the right upper limb from C5 to T1 and in the left upper limb from C5 to C7.

Magnetic resonance of the cervical spine was performed on 18/10/2012, showing central disc herniation is noted with cord compression.

We performed anterior discectomy and fusion of the cervical spine on 3/4/2013. The post-operative course was uneventful and she was discharged with follow-­up at the out-patient clinic.

Now her neurosurgical condition is stable.  She has improving neck pain.  Upper limb power is full.  Neck range of movement is full.  There is mild impaired sensation over C5/6 dermatome levels.”

8.There are altogether 3 referrals of the plaintiff to the Physiotherapy Department of Tuen Mun Hospital.  Its report dated 24 March 2014 described as follows:

“Subsequent Clinical Findings (19 April 2013)

I. Subjective Assessment

1. Miss XU stated that bilateral neck pain with pain intensity graded as 6 out of 10 in NPRS.

2. She also complained of right upper limb numbness.

II. Objective Assessment

1. The range of neck flexion, left side flexion, right side flexion and left rotation were 1/4 of full range which were limited by pain

2. The range of neck extension was limited by pain

3. The range of neck right rotation was 1/3 of full range which was limited by pain

4. Her 4 limbs power was graded as five out of five in Oxford Scale

5. The right upper limb sensation was decreased 30% of light touch

Treatment

Miss XU received transcutaneous electrical neuromuscular stimulation, hot pack and exercise therapy.

Final Clinical Findings (21 August 2013)

I. Subjective Assessment

1. Miss XU stated that the subjective improvement was 50%

2. She complained of on and off neck pain with reduced both hand numbness.

II. Objective Assessment

1. The range of neck flexion and extension were half of full range

2. The range of neck left side flexion and right side flexion were 1/3 of full range

3. The range of neck left rotation and right rotation were 2/3 of full range with stretching pain

4. Her both side upper limbs power were graded as five out of five in Oxford Scale;

5. The sensation of both hands was normal.

Discharge:

Miss XU was discharged from physiotherapy because of static progression on 21 August 2013.”

9.In the meantime, in or about October 2012, the plaintiff received 13 lessons of occupational therapy from Tuen Mun Hospital.  The occupational therapist said in her report dated 18 January 2013:

“4. Ms. XU worked as taxi driver before injury. The work task included driving customer to designated place. The critical physical demand was constant sitting, handling and forward reaching; occasional lifting. In the initial assessment, she tolerated controlling steering wheel for 15 mins. She demonstrated lifting of 10 lb for 5 mins. Her tolerance in neck rotation in sitting position for 10 mins. Total sitting tolerance during work assessment was 50 mins with short breaks. She was ranked as marginally match her job requirement for inadequate work endurance.

5. Ms. XU was then admitted to the work reconditioning and hardening program to optimize her physical and functional capacity.  However, the progress was slow.  In the last assessment, her power grip was 14 kgf over right hand and 17 kgf over left hand.  She could tolerate 15 mins in controlling steering wheel and neck rotation in sitting position for 10 mins.  Her lifting tolerance was 10 lb for 10 mins.  She was discharged from work rehabilitation program in view of static progress.”

10.Apart from that physical problem, the plaintiff also consulted clinical psychologist.  A report dated 23 March 2014 recorded:

“Psychological intervention and progress:

Ms. Xu was referred to the psychiatric service to further manage her depression.  Counseling was rendered to help Ms. Xu to accept the changes after the accident.  She was helped to appreciate the progress she has made in the process of physical recovery.  Relaxation and emotional coping skills were introduced to her in managing her mood and pain. Ms. Xu showed some improvement as psychotherapy progressed.  Although she was still in a lowish mood, Ms. Xu reported that her mood was more stable with reduced negative thoughts and crying spells.  Continued psychological service will be provided to Ms. Xu and the next appointment is scheduled for 25 April 2014.”

11.Further, the Tuen Mun Mental Health Centre dated 8 April 2015 stated that:

“3. Madam Xu’s psychiatric history dated back to June 2012, when she sustained an injury in her neck in a traffic accident in which a vehicle crashed at her car from the back. She was admitted to hospital for nine days but she had persistent neck pain and limb numbness since then. She also complained of poor sleep with bad dreams, low mood with crying spells, increased eating for comfort with weight gain for 30-40 lb, loss of libido, interest and energy, sense of worthlessness/ uselessness, anxiety symptoms when taking vehicles like private cars, taxi, van and bus. She felt safe and not anxious when she was travelling on train. She was very frustrated as she could not recover completely and she harboured fleeting suicidal idea. There was no flashback or psychotic symptom. In April 2013, she was found to have cervical spinal stenosis and she had spine surgery; however, she still had neck pain and upper limb numbness despite having psychological treatment in Tuen Mun Hospital. Her mood remained low and she was then referred to this centre for management of her mood problem.

4. Madam Xu was first seen at this centre on 18 November 2013 and she was diagnosed with a moderate depressive episode. She had been receiving psychiatric treatment at this centre and continued attending her clinical psychology session at Tuen Mun Hospital. She reported that she had some improvement in her mental condition: she had better sleep and mood though she still irritable mood, loss of libido, some sense of uselessness and some anxiety when travelling in vehicles like private car, taxi, van and bus.

5. In summary, Madam Xu has been suffering from a moderate depressive episode which is related to her neck problem.  Her mental condition has been improving with treatment though the recovery is only partial at the moment.  She is recommended to continue follow-up treatment at this centre and clinical psychology sessions in Tuen Mun Hospital.”

12.On 22 May 2015, the plaintiff commenced the present proceedings.  Interlocutory judgment on liability was entered by consent on 1 June 2015, leaving damages to be assessed.

13.Parties came before me for four days.  Both of them were represented by counsel, Mr. S. Wong acted for the plaintiff, and Mr. C. Pun for the defendant.  Two witnesses attended before me, the plaintiff and her husband.

14.Mr. Wong identified 5 issues to be decided by the court in his closing submissions.

“Issue 1: What is the injury suffered by P at the accident and her extent of residual symptoms?

Issue 2: What was the P’s income at the time of the accident?

Issue 3: What is the reasonable period of sick leave for the injury sustained?

Issue 4: After reasonable period of sick leave, would the Plaintiff be able to return to her pre-accident work as a taxi driver in pre-accident capacity?

(a) If yes, would she be able to earn as much as she did prior to the accident?

(b) If not, how much would P be able to earn in an alternative job?

Issue 5:   Has P suffered any loss of earning capacity?”

15.The answers to these issues turn on the evidence of the plaintiff, her husband and the medical evidence before me.

16.Upon consideration, on balance, I agree to accept the evidence of both the plaintiff and her husband.

17.The evidence of Mr. Sit Chiu Hing, the plaintiff’s husband, is simple and straight-forward. He was not shaken under cross-examination.  Before the subject accident, the plaintiff was a happy and hardworking wife and mother. After it, she felt pain, unhappy and moody.  She even went to the extent of harming herself. He and the sons were very concerned about the plaintiff.

18.As to those of the plaintiff, she was at times emotional, irritable and angry during the cross-examination.  However, it does not necessarily turn her to be unreliable.  One has to understand her performance with reference to her education, family and health background.

19.The production of surveillance video is usually detrimental to the case of victim.  It often shows that the injury/symptom suffered by the victim is not as serious as alleged.  In the present case, the video however does not prove the plaintiff has been malingering or exaggerating.  I agree to adopt the analysis/observations of Mr. Wong in his closing submissions:

“7.1 Most of the time, P was simply walking slowly, standing or sitting.

7.2 The recording did not fully reflect her daily condition as she took painkillers before going out.

7.3 Suggestions were made that she was able to move her neck seemingly freely. The first problem with this suggestion is that the experts were not asked to comment on her neck movement in the recording that whether her neck movement was inconsistent with her complaints. Further, it is not P’s case that she cannot turn her head to right or left. It is her case that she cannot do so frequently or for long hours as a taxi driver is required to do.

7.4 On 16.5.2016, she was observed to walk to a railway station with an umbrella on her hand. At the station, she intended to take her Octopus card from her bag. She used one hand to hold her bag and the other to take the card out from the bag. She needed to put the umbrella stick on the shoulder, look down and use her neck to keep the umbrella stick on the shoulder area. Soon after that head movement, she immediately used her hand to hold the umbrella, looked at the front and stood still for about 1.5 minutes. During cross-examination in March 2017, she said that head movement made her feel painful and she stood there in order to take a rest and not to move her body. D’s counsel did not suggest to her otherwise. In re-examination in August 2017 she was unable to recall clearly that moment – a symptom which is consistent with her psychiatric condition: poor memory (See Psychiatric joint report [V1/C/161/§(o)]). But as her answer in March 2017 was so clear and unchallenged, P urges the Court to accept her answer in March 2017. Indeed, D is unable to suggest anything to explain why she stood still for 1.5 minutes if she was not feeling pain. That easy head movement which can be performed by normal healthy persons has caused pain to her.

7.5 Suggestions were made that she was able to walk for 5 hours on 5.6.2016. First she did not walk for 5 hours, she walked, stood, sat and took rest. Secondly, she explained in cross-examination in March 2017 that the outdoor activity had made her feel very painful and unhappy afterwards. She did not lie. During the long adjournment of hearing, P’s solicitors managed to obtain an updated medical report from Psycho-behaviour Unit of TMH [V1/C/121-1] which records exactly what P told the Court:

“Ms. Xu attended the session on 16 June 2016.  She presented with an initial calm mood but then became very emotional and burst into loud crying during the session related to an unpleasant experience of an outdoor activity with family one to two weeks ago.  She said all along she was reluctant to go out with her husband because she was easily physically tired and uncomfortable after long walking, however for the sake of family harmony she would accommodate to her husband’s request.  She reported on that day she was very distressed with the increased tiredness, dizziness and pain after long walking and finally she needed to sit on her husband’s electric wheelchair. However, she felt frightened of the speed after sitting on it for a while and she gave up the use of it afterwards.  She expressed she felt defeated that she failed to even manage the use of wheelchair.”

7.6 Further, apart from a 5-second smile to her son in a park, she had a expressionless face most of the time which is certainly not that one would expect from a mother of her age going out with her family. Suggestion was made to her that she did not have any painful expression on her face and hence she did not have pain. This suggestion is misconceived. Common sense and personal experience tell us that one may not necessarily exhibit painful facial expression in public even when he is experiencing pain. P explained in re-examination that unless the pain is up to 10 point, or pain of 8-9 point lasts for a long time, she is able to tolerate it and would not express the pain on her face. This is unsurprising give she is a tough woman.

7.7 As to the 5-second smile, D explained that her son made her smile and that happened after resting which made her feel physically better. The smile should be taken too high. There is no evidential basis (such as expert evidence – the experts were not asked to comment on the smile) for any other suggestion in the line that the 5-second smile is inconsistent with her complaints of psychiatric symptoms. After all, P has been receiving psychological counseling for years. Mr. Sit said they were advised to go out and travel so as to make her feel better emotionally. A moment of emotional relief simply cannot damage P’s case.

7.8 It was seen that on 5.6.2016 she sat on the wheelchair. Just before she sat on it, she used his left hand to support her waist to walk slowly [at 17:15]. She said in re-examination that that was because she was very tired. After sitting on the wheelchair for a while and crossing the road, she cried [at 17:21]. She explained that she was frightened and upset. Finally she gave up using the wheelchair.

7.9 Finally, it is observed that on both 16.5.2016 and 5.6.2016, the weather was hot but she wore a scarf on her neck.  She said she wore a scarf to cover the scar on her neck because it is ugly.  Whether or not it is ugly is subjective and has to be considered against her background – a young lady in her 30s.  The scar has undoubtedly caused suffering and loss of amenity to her life.”

20.Mr. Pun suggested that the plaintiff did not show any uneasiness or discomfort throughout the assessment. I disagreed as it is not something I observed.  She felt stressed.  With the painkillers, she tried hard to stand the cross-examination by Mr. Pun.

21.Having accepted the evidence of the plaintiff and her husband, I have no difficult in preferring the opinion of Dr. Wong (the plaintiff’s expert) than those of the Dr. Kwok (the defendant’s expert).

(a)   Joint Medical Report dated 3 October 2015

“53. Dr Wong believes the alleged accident is the main contributory event for the cord lesion based on:-

i. Mechanism of injury is compatible (given by Madam Xu)

ii. Occurred shortly after accident, it is compatible with the development of disc problem which can gradually increase disc prolapsed with time

iii. No previous neck or upper limbs injury before the alleged accident (based on records provided from Madam Xu).

…

55. Dr Wong:

In response to further comment made by Dr Kwok in the above, Dr Wong agrees that MRI revealed spondylosis and stenosis of prolapsed discs indicate pre-existed degeneration. It was not uncommon for Madam Xu, who was 38 years old at the time of the alleged accident to have such radiographic features. However, many people with similar radiographic features can remain asymptomatic and lead a normal life like Madam Xu before the subject accident that it was not until after alleged accident that she developed radiating upper limb symptom.

Without the said accident, she could probably remain symptom free that again as already stated on paragraph 53, as she had no neck or upper limb problems before, the alleged accident was likely the main contributing event to her present condition.

…

58. Dr Wong is of the view that the treatment was standard and appropriate as noted from the last physiotherapy and occupational therapy assessments (refer to paragraphs 26 and 27) that Madam Xu has felt overall 50% improvement with still stiffness over neck with sensation and power of both upper limbs normal.

…

70. Dr Wong: Purely from an Orthopaedic aspect and concerning her neck injury, Madam Xu has reached maximum medical improvement and is suitable for assessment. The prognosis is fair. Her activities of daily living likely unaffected but she is expected to have on and off attack of neck pain and stiffness particularly on exertion from heavy lifting and carrying as well as from prolonged walking, sitting and standing.

…

74. Dr Wong: In view of the nature of her work and her present condition with surgery performed over neck, she may encounter difficulty in resuming pre-injury occupation as Taxi driver due to having to sit for long period of time while driving on duty and having to frequent turn neck left and right to look at side mirrors may cause discomfort and inconvenience during work duties and may easily aggravate her neck symptom.

75. Again one should not omit the impact on her present condition with the probable psychiatric impact on her.

…

77. Upon your request on the assessment of WPI caused by the alleged accident, Dr Wong opines 10-12% for the fusion of 2 levels at C4/5 and C5/6 with surgery performed and apportionment to her pre-existed degeneration. In view of the nature of her occupation, the LOEC recommendation would be around 10-12% for fusion of 2 levels at C4/5 and C5/6 levels.

…

79. Dr Wong: For the treatment of her cord lesion over neck, it was noted initially she was treated conservatively with regular physiotherapy and occupational therapy for few months. As noted conservative treatments failed to relieve her symptom satisfactory that surgery of anterior cervical discectomy and fusion at C4/5 and C5/6 levels were eventually performed on 3/4/2013. Madam Xu then had further physiotherapy for few months at TMH till 21/8/2013 and noted further sick leave was given by Neurosurgery between the period from 28/1/2014-25/3/2014 for her neurosurgical problem. Dr Wong would agree with the sick leave till 3/2014 for her orthopaedic problem.

…”

(b)   Supplemental Joint Medical Report dated 6 June 2016

“Dr. Wong:

1. Madam Xu does have pre-existed neck degeneration which causes the narrowing of canal. However, this radiographic feature of degeneration is very common among people of her age group. The degeneration have likely been present long before the accident, that Madam Xu remained asymptomatic and managed her work and life well. If not because of the alleged accident, she should be unaffected for the rest of her life without the occurrence of cervical myelopathy.

Most importantly, clinical record showed that, on 05/06/2012, the day of accident, patient did complain of right upper limb numbness with weakness, and symptoms continuously persisted afterwards. There is no dispute that this is clearly a “cause and effect” relation. Without the alleged accident, Madam Xu should maintain a good life and remain asymptomatic for the rest of her life. This therefore reflects that the alleged accident is a main triggering event of the development of myelopathy.”

22.On the other hand, as to the psychiatric experts, one of course starts to take note of the agreed opinion of them in their Joint Report

“62. We agree that Madam XU’s complaints are compatible with the mental disorders of Post-traumatic stress disorder (PTSD, ICD-10 code: F43.1) and Moderate depressive episode (ICD-10 code: F32.1).

63. We agree that: “Both mental disorders are triggered by the trauma of the accident and the problems due to the physical symptoms.  The disorders are perpetuated by the persistent physical symptoms, unempolyment, and the present litigation.  The two mental disorders are wholly caused by the accident if all the physical symptoms are caused by the accident.  She has not suffered from any pre-existing mental problems.”

23.As to their disagreement, again, having accepted the evidence of the plaintiff and her husband on balance, I also prefer those of her expert, Dr. Ho, rather than those of the defendant, Dr. Chung.

“Treatment

47. In general, the experience of the therapist directly treating the case and the time that could be spent on the treatment is usually more favourable in the private sector. More intensive psychotherapy from the psychiatrist and closer monitoring of side effects or efficacy of the medications can also be more readily achieved in the private sector.

48. The fee for psychiatric treatment in the private sector is generally around 2000-3000 HK dollars a month but it varies with individual psychiatrists. The fee for treatment by a clinical psychologist in the private sector is generally around 1000-2000 HK dollars per session though again it varies with the individual clinical psychologist.

49. According to the medical report prepared by Dr. Wong Chung Wai of Tuen Mun Psychiatric Centre dated 8 April 2015: “Her mental condition has been improving with treatment though the recovery is only partial at the moment.”

50. During this interview she said she considers that her mental condition has become more stable, but she cannot estimate by how much.

51. Overall I think the treatment that has been given by the psychiatrist and the clinical psychologist in the public sector is appropriate. In my opinion she can continue to receive the psychiatric treatment provided by the psychiatrist and treatment by the clinical psychologist at the public psychiatric clinic. However I think more intensive behavioural treatment by the clinical psychologist in the public sector is needed in view of the persistence of many of her PTSD symptoms as elicited during the present interview. Behavioural therapy methods such as systemic de-sensitisation of her fear under guidance and relaxation could be beneficial. In addition, referral to the Rehab-aid centre for simulated driving sessions or training on the road under supervision would also help her to acclimatize with her fear of driving.

52. The exact duration of treatment would depend on her progress and my provisional estimate is that she would likely need a further period of psychiatric treatment and treatment by a clinical psychologist for at least three more years. Her mental condition could still fluctuate and especially when there is occurrence of significant stressors.

53. To the best of my knowledge the fee for attending psychiatric treatment in the public sector is generally around or within 100 HK dollars though sometimes there could be extra-charges for more expensive medicine and the treatment by a clinical psychologist in the public sector is generally around or within 100 HK dollars per session.

Prognosis

54. I think the prognosis is overall on the unfavourable side in view of the persistence of many of her physical and mental symptoms even after a lengthy period of treatment and the recent mood fluctuations culminating in a suicidal attempt.

Work capacity and sick leave

55. The symptoms that she has complained of during the present interview include anxious re-­experience of the accident; avoidance of stimuli associated with the accident, anxiety about traffic and fear of driving. She was tearful and emotional when she was reporting the accident. She said she was anxious when she was talking about the accident.

56. According to the Medical report prepared by Dr. C.W. Wong of Castle Peak Hospital dated 8 April 2015: “She reported that she had some improvement in her mental condition: she had better sleep and mood though she still irritable mood, loss of libido, some sense of uselessness and some anxiety when travelling in vehicles like private car, taxi, van and bus.”

57. In view of her residual anxiety about traffic and fear of driving, I think that from a psychiatric viewpoint it is difficult for her to return to her previous job as a taxi driver at present. Her safety and the safety of others while she is driving on the road is also an issue that would need to be considered.

58. However I think that with more vigorous treatment as afore-mentioned including treatment at the Rehab-aid Centre and more intensive behavioural treatment from the clinical psychologist, there is still a chance that her mental symptoms could improve to a more satisfactory degree in the future to the extent that she may try working in her previous job again if her physical ability allows. It is difficult to give an accurate estimation of the time period needed before there could be such improvement after these suggested treatments. If a figure is required for the parties’ reference, my provisional estimate is that of about two more years. If more intensive behavioural treatment by the clinical psychologist could not be provided in the public sector because of the heavy caseload, referral to a clinical psychologist in the private sector could also be considered. Her motivation to adhere to such treatment schemes and determination to overcome her fear symptoms could also be a limiting factor especially prior to the closure of the present litigation.

59. In my opinion the sick leave that has been granted by the psychiatrist treating her in the public sector is appropriate. She would need further sick leave but I think the psychiatrist treating her would be in a better position to determine the exact duration needed in the subsequent course of her treatment.

Loss of earning capacity & permanent impairment to the whole person

60. Purely for the parties’ reference, I estimate that her loss of earning capacity, due to her psychiatric conditions at around 10%. I estimate the degree of permanent impairment due to her psychiatric conditions to the whole person at 10%. Allowance should be made to the accuracy of such figures due to the inherent difficulty to convert the level of disability into a numerical value and the general variable nature of psychiatric symptoms.

…”

24.With the above findings, I answer the said 5 issues in the followings:

(1)   The collision caused the plaintiff to suffer neck, chest and right leg injury.  The neck injury triggered her pre-existed degeneration.  Without it, she could probably remain symptom free in her life. She went through an operation on her neck, leaving a scar affecting her appearance/self-esteem.  She will have on and off attack of neck pain and stiffness when lifting heavy objects and from prolonged walking, sitting and standing.  The plaintiff also developed psychological and psychiatric symptoms of the accident.  All these affect her and her family.

(2)   I agree to accept Mr. Wong’s suggestion of $15,600 per month, at the time of accident, i.e. $600 per day x 26 days.

(3)   I also agree to accept the sick leave of 31 months as certified by doctors in hospitals.

(4)   It is my finding that the plaintiff cannot resume the pre-accident job as a taxi-driver.

(a)   Not applicable.

(b)   Mr. Wong suggested an alternative job of $8000 per month.  Mr. Pun relied on various government statistics to say that the plaintiff could work as operator for builders’ lift, dishwasher and security guard ($11,316, $12,067 and $10,396 per month respectively).  Upon thought, I prefer the figure of $9,830 at p.1462 (B5), i.e. female security guard under 3-shift system.

(5)   The plaintiff did suffer loss of earning capacity.

25.I now move to the quantum assessment.

PSLA

26.With the authorities produced by Mr. Wong and Mr. Pun, the best comparable would be Suen Kum Fung Kandy v Tsang Cham Kuen & Anor (unreported, CACV75 of 2008, 29 August 2008).  Mr. Wong summed up the case as:

“Whiplash injury in a car accident. P had residual persistent neck pain. She had then developed psychiatric symptoms that brought about a character and personality change. The symptoms affected the marital relationship and her husband divorced her. PSLA of $500,000.”

27.Bearing in mind that, in this case, the plaintiff had an operation with a scar left on her neck, but still has been enjoying a caring husband and two loved sons, as well as the inflationary factors, I take the view that a sum of $550,000 is appropriate under pain suffering and loss of amenities.

PRE-TRIAL LOSS OF EARNINGS

28.As per the above findings, the plaintiff is entitling to pre-trial loss of earnings for $664,552 ($15,600 x 31 months + $15,600 x 3 months (to find the job) + ($15,600 - $9,830) x 23.25).

POST-TRIAL LOSS OF EARNINGS

29.I agree to accept the multiplier and discount rate of 2.5% suggested by Mr. Wong.  Hence, the post-trial loss of earnings suffered by the plaintiff is $1,161,155 (($15,600 - $9,830) x 12 x 16.77).

LOSS OF EARNING CAPACITY

30.Having allowed the plaintiff for 3 months to find the job of a security guard after the sick leave, I would further allow about a further 6 months under the head of loss of earning capacity, i.e. $93,600 ($15,600 x 6).

SPECIAL DAMAGES

31.Parties agreed the sum of $30,000 as special damages (past and future) for the plaintiff.  I so order accordingly.

SUMMARY

32.To sum up, in my assessment, the plaintiff is entitled to recover from the defendant:

	$
PSLA	550,000
Pre-trial loss of earnings	664,552
Post-trial loss of earnings	1,161,155
Loss of earning capacity	93,600
Special damages	30,000
	2,499,307

INTEREST

33.The plaintiff is also entitled to interest of 2% p.a. on PSLA from the date of writ herein to the date hereof.  As to pre-trial loss of earnings and special damages, there will be half judgment rate per annum from the date of accident to the date hereof.

COSTS

34.There is no reason to depart from the usual rule that costs follow the event. The defendant shall pay the plaintiff costs of the assessment, including all costs reserved and certificate for counsel regarding the 4 days’ hearing before me, to be taxed if not agreed. Such costs order nisi will become absolute after 14 days from the date hereof.

35.It remains for me to take the opportunity to thank both counsel for their assistance given to this court.

Mr Simon Wong, instructed by Tang, Lee & Co., for the plaintiff

Mr Chase Pun, instructed by Cheung, Chan & Chung, for the defendant