Read the full judgment text of CACV 000090/2003 on BabelCite. This Court of Appeal judgment was delivered on 3 February 2004 before Ma CJHC, Rogers VP, Le Pichon JA.
Personal injury – road traffic accident – assessment of damages – psychosomatic disorder – pain, suffering and loss of amenities (PSLA) – pre-trial and post-trial loss of earnings – notional retirement age – special damages for medical expenses – test for recoverability of medical expenses. The plaintiff, a KMB bus driver, sustained sternal contusion and soft tissue injuries in a road traffic accident on 12 June 1998 caused by the 1st defendant's light goods vehicle cutting into her lane. Liability was determined in favour of the plaintiff on 9 January 2002, with damages to be assessed. The plaintiff claimed a persistent psychosomatic disorder arising from her injuries; the defendants alleged she was malingering. The master accepted that the plaintiff suffered only a minor contusion and soft tissue injury, but found a genuine mild psychosomatic disorder manifested as a mild form of bodily pain, rendering her unsuitable to return to her pre-injury employment as a bus driver. PSLA was assessed at $250,000. On appeal, the defendants challenged the PSLA award and the findings underpinning the loss of earnings awards. Whether the master erred in finding a genuine psychosomatic disorder – held no; the finding was supported by expert evidence from Dr Ku of the Psychosomatic Clinic, Dr Danny Tsoi, and Dr Peter Ho, and the defendants' reliance on absence of muscle wasting and normal gait on surveillance did not establish malingering. Whether the period of disability of approximately 40.5 months from accident to November 2001 was supported by evidence – held yes; the joint orthopaedic report dated 29 November 2001 and continued employer payments up to that date supported the master's conclusion. Whether the notional retirement age of 63, yielding a multiplier of 2, was supported by evidence – held yes; the plaintiff's testimony that KMB might extend her retirement based on good performance, even if slight, was sufficient. Whether disallowed special damages for medical and hospital expenses (Dr David Chin, St Teresa's Hospital, Hong Kong Baptist Hospital, acupuncture, bone setter, and associated travelling) were recoverable – held yes on cross appeal; the master failed to apply the correct test. Under the principles in Rubens v Walker [1946] SC 215 and Clippens Oil Company Limited v Edinburgh and District Water Trustees [1907] AC 291, medical expenses honestly and reasonably incurred for the treatment of accident-related injuries are recoverable even if the medical advice turns out to be wrong, and the wrong-doer cannot criticise the course honestly taken by the injured person on expert advice. The master's disallowance was based on a finding that the expenses were not 'justified', without applying the correct test, and the plaintiff's evidence supported an honest pursuit of treatment. Appeal dismissed with costs; cross appeal allowed with costs. The court further remarked, obiter, on the regrettable absence of proper reference to the trial transcript in the appeal bundles and the consequent lack of foundation for the grounds of appeal.
Legal issues: Whether master erred in finding plaintiff suffered a genuine psychosomatic disorder · Whether plaintiff unsuitable to return to employment as bus driver · Whether period of disability of 40.5 months was supported by evidence · Whether notional retirement age of 63 was supported by evidence · Whether disallowed special damages for medical and hospital expenses were recoverable
Outcome: Appeal dismissed with costs; cross appeal allowed with costs.
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