Gaby Anderson v. Wui Yip Co. Ltd. and Others
Read the full judgment text of HCPI 244/1998 on BabelCite. This High Court CFI judgment was delivered on 27 September 2001.
1. In this matter, Gaby Anderson ("the plaintiff") claims damages for personal injuries against the Wui Yip Company Limited ("the 1st defendant") and Ko Wing Yeung Mike ("the 2nd defendant") arising from a traffic accident which occurred on the morning of 3 June 1997 along Hiram's Highway when a compressor which was being towed behind a lorry GY1480 owned and driven by the 1st and 2nd defendants respectively came detached from the lorry and collided head on with the car driven by the plaintiff.
Cited by 15 cases
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HCPI000244/1998 HCPI 244/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.244 OF 1998 ----------------------
----------------------- Coram: Hon Suffiad J in Court Dates of Hearing: 21 - 22 June and 20 July 2001 Date of Assessment: 27 September 2001 --------------------------------------------------------- ASSESSMENT OF DAMAGES --------------------------------------------------------- 1.In this matter, Gaby Anderson ("the plaintiff") claims damages for personal injuries against the Wui Yip Company Limited ("the 1st defendant") and Ko Wing Yeung Mike ("the 2nd defendant") arising from a traffic accident which occurred on the morning of 3 June 1997 along Hiram's Highway when a compressor which was being towed behind a lorry GY1480 owned and driven by the 1st and 2nd defendants respectively came detached from the lorry and collided head on with the car driven by the plaintiff. Interlocutory judgment was entered against the 1st and 2nd defendants on 11 January 1999. This is now the assessment of damages. 2.Hong Kong & Shanghai Insurance Company Limited ("the 3rd defendant") was joined in to these proceedings by an order of Seagroatt J dated 8 June 2001 on the basis that although there were insurers concerned as there was a policy in force in relation to the use of the lorry, however that policy was not applicable where there was a trailer attached to the lorry as here. In the circumstances, there was a possibility that at the end of the day, the Motor Insurers Bureau may have to bear the damages awarded to the plaintiff. The 3rd defendant was therefore joined in to these proceedings to protect the interests of the Motor Insurers Bureau of Hong Kong. 3.At the hearing of the assessment, in so far as the defendants are concerned, apart from a brief appearance by the 2nd defendant on the morning of the second day of the hearing, it was only the 3rd defendant who took any active part in the whole of these proceedings appearing by counsel. The accident 4.On the morning of 3 June 1997 the plaintiff was driving her private car along Hiram's Highway taking her children to school. The defendant's lorry, towing a compressor, was travelling in the opposite direction on the opposite carriageway of the road. Suddenly, the compressor became detached from the lorry, crossed the carriageway and collided head-on with the front of the plaintiff's car. The plaintiff was wearing a seat belt, but her body was still propelled forward by the impact. Her head hit the air bag and her chest hit the steering wheel. Then her head and neck hit the headrest of her seat. She did not lose consciousness. Injuries and treatment 5.The plaintiff was taken to the United Christian Hospital by ambulance. At the hospital she was found to have extensive abrasions, bruising and swelling to her right elbow, right forearm and right hand. X-rays of the right upper limbs and cervical spine did not show any fracture. Dressing and antihistamine were given. She was advised to be hospitalised but she decided to go home. 6.When she woke up the next morning she had severe neck and chest pain as well as limitation of neck movement. On the same day, she consulted her family doctor, Dr Rosemary Barnett who found the following injuries :
She then underwent physiotherapy to relieve the neck pain. 7.The plaintiff was examined by a specialist in Neurology, Dr Yu Yuk Ling on 20 October 1998. Her complaints as regards her injuries at the time of that examination was intermittent neck pain of a tight character, bilateral headache of a dragging and tight character, impaired memory, being upset and frustrated because of her neck pain and headache and interrupted sleep since the accident. 8.After conducting his examination of the plaintiff, Dr Yu came to the opinion that in the accident she sustained a whiplash injury, soft tissue injury of the right elbow and mild chest wall trauma. He further opined that the plaintiff's clinical picture, made up of the various symptoms that she had, was compatible with Late Whiplash Syndrome ("LWS") which refers to a state in which the symptoms persist for more than six months after the accident causing it. These symptoms include neck pain and stiffness, headache, dizziness, arm pain, anxiety, irritability, depression and insomnia. 9.Dr Yu further stated that in such cases of LWS, despite the complaints of physical symptoms, little or no objective evidence of damage to the nervous system can be elicited because the symptoms are due to soft tissue injury, muscular tension and psychological disturbance. To achieve a cure in LWS may be difficult and protracted in some patients. 10.In the case of the plaintiff, he took the view that her condition is probably permanent as the accident was then 16 months past. He advised that she would need medical consultations for symptomatic treatment by a neurologist or neurosurgeon about once a month for six months, then twice-monthly for six months. During the consultation, counselling and symptomatic treatment are given. The fee for each consultation inclusive of medicine is about $900. By then she may come to tolerate the symptoms better and would then require consultations less frequently. However, if she still finds the symptoms bothersome, she will need to continue such consultations twice-monthly over a longer period of time. 11.He estimated the LWS to be a 10% impairment of the whole person in the case of the plaintiff. 12.Dr Yu saw the plaintiff again at the end of November 1999. On that occasion the plaintiff complained that her neurological symptoms had deteriorated in that her intermittent neck pain had become more frequent and she has become more frustrated because of her neck pain and headache. 13.On this occasion, Dr Yu adopted the conclusions and advice which he had stated in his first report but further advised that physiotherapy would also be helpful to the plaintiff. He re-assessed her LWS to be 12% impairment of the whole person. 14.In June 2000, the plaintiff was examined by a psychiatrist, Dr Char Nie Chan, who, in his report dated 9 November 2000 stated that he was of the opinion that the plaintiff, apart from her whiplash injury, is also suffering in the psychiatric aspect an adjustment disorder after the whiplash injury. He further stated that an adjustment disorder normally subsides after six months, but when it lasts over six months as in the plaintiff's case, such chronic condition can be managed by a psychiatrist with supportive psychotherapy and pharmacotherapy, which would take a course of six to eight sessions. Based on eight sessions, the estimated cost of consulting a psychiatrist is $16,000 and that of consulting a psychologist is estimated to be $14,400. In the public sector that cost would be considerably reduced. 15.Dr Chan also states that the recovery of her psychiatric condition is likely if her pain is permanently relieved, or if she comes to terms with it and the limitation of her neck stiffness, but it could also be prolonged because of litigation. He assessed her permanent impairment in the psychiatric aspect to be about 5% before treatment and 1-2% after treatment. Pain suffering and loss of amenities 16.The plaintiff's condition as stated by the medical experts above and their opinion have not been disputed by the 3rd defendant nor has there been other medical evidence adduced to challenge it. 17.Before the accident, the plaintiff enjoyed swimming, tennis and aerobics. Since the accident, her sporting life has been greatly curtailed because of the neck pain and headache. 18.The main dispute, in so far as the claim under this head of damage is concerned, is in the degree of her disabilities and whether those disabilities come within the 'Serious Injury' category as it is understood in the case of Lee Ting Lam. The 3rd defendant took the stance that the injury suffered by the plaintiff was not a serious injury and from which she would fully recover in a few more years. 19.I have little doubt that as a result of the whiplash injury or LWS which Dr Yu and Dr Chan both considers to be permanent, that injury and the resultant disabilities as manifested by the symptoms detailed by the medical experts above must put it within the 'Serious Injury' category. The permanence and persistency of the neck pain alone did mar the plaintiff's general activities and enjoyment of her life. In so saying, I have in mind the plaintiff's own evidence of the effect that this neck pain has on her daily life, namely, she cannot pick up and cuddle her children when they fall, her inability to breastfeed, tennis and aerobics are out for her, she will have to continue physiotherapy and acupuncture for relief. Moreover, from the medical evidence, it is clear that she will have recurrent neck pain which is permanent. In those circumstances the quality of her life has been compromised. There is here also recurrent pain which has continued since the accident. 20.I am of the view therefore that a reasonable amount to compensate her for the pain, suffering and loss of amenities would be $500,000.00. That is the figure I propose to award under this head. Special damages 21.Medical expenses is claimed totally at $26,105.90. This is conceded by the 3rd defendant except for one item of $3,200 paid to Dr Raymond Ng. The 3rd defendant contends that this amount has already been included in the amount of $4,876 paid to Dr Owens Trodd and Partners. I do not accept that contention and there is no evidence to justify that contention by the defendant. I will allow the full claim of $26,105.90 for medical expenses. 22.The plaintiff did put in a claim for pre-trial loss of earnings in the amount of $24,000 in her Revised Statement of Damages. This claim is disputed by the defendants. The plaintiff, however, has not seen fit to pursue this claim at the hearing and in final submission, in my view, quite rightly. In that event, I make no award under this head of claim. 23.As for the other items of Special Damages, items (a) to (h) relate to the plaintiff's car which was written off as a total loss. The car had comprehensive insurance and the plaintiff had received insurance payment for the loss of the car. In those circumstances, I am not prepared to allow the claims under items (a), (g) and (h) which relate to the upgrading cost of the car and to loss of insurance premium and insurance excess. These three items would have been covered by the insurance payments received by the plaintiff and/or arise from that insurance policy. 24.The other items of Special Damages are either agreed by the 3rd defendant or if not, they will be allowed in full as being reasonable and necessary losses arising from this accident. 25.In the circumstances, I make out the amount of the remaining items of Special Damages to be $39,455. Added to the medical expenses, this gives the total amount of Special Damages to be $65,560.90. Future loss of earnings 26.I turn now to what is the main dispute between the parties in this case. 27.The evidence in this case shows, and that has not been disputed, that the plaintiff was born and educated in South Africa to matriculation standard. She started to work at the age of 18 as a secretary and became an executive secretary in 1988. 28.She moved to live in Taiwan in 1991, met her husband there and got married. In Taiwan, she operated a part-time nail beautician business at home. She stopped work in 1992 when her first child was born. She had a second child in early 1995 and several months later the whole family came to Hong Kong when her husband was posted to work here. Since coming to Hong Kong she has been a full time housewife. 29.She has given evidence that both she and her husband intends to make Hong Kong their permanent home. The reason she gave for not working in Hong Kong was because in Taiwan (when she was working) she had only one child whereas in Hong Kong she now has three children. However, she says that it has always been her intention to return to employment, possibly initially part time, but later to full time employment as a personal assistant when her children were older and had commenced full time schooling. 30.Her claim for future loss of earnings is therefore put on the footing that by about 2004, when her youngest child, born in January 1999, reaches five years and of school age, she had hoped to return to some form of employment. However, because of her resultant disability due to the whiplash injury she will not be able to earn as much as she would otherwise have but for the accident. 31.The amount claimed by the plaintiff under this head of claim is stated as $3,792,000 in the Revised Statement of Damages. That is based on her being able to obtain part time work at a salary of $9,000 monthly from June 2004 until 2007 and thereafter full time employment at a salary of $27,000 monthly until she reaches 65 years. A multiplier of 14 is suggested. 32.Mr Nicholas Pirie, counsel for the plaintiff, submitted along similar lines in his final submission in respect of future loss of earnings but that the final figure is slightly altered to $2,128,000 as being the sum that should be awarded under this head. 33.The stance taken by the 3rd defendant in respect of this claim is that firstly they do not accept that this intention to take up employment as an executive secretary could have been there in the plaintiff's mind before the accident but that it is more likely such intention came about only for the purpose of the litigation. Secondly, even if she did have such intention, there can be little or no prospects of the plaintiff obtaining such employment, not because of the disabilities due to the accident but because of her own limitations and lack of qualifications. 34.In so far as the first point is concerned, the 3rd defendant points to the following reasons for what they suggest, namely:
35.As for the second point taken by the 3rd defendant, they rely on the following matters:
36.As already indicated, the plaintiff obtained a report from Sara Beattie as to her employability. That report makes two points in relation to the plaintiff's skills, namely that she needs to upgrade her computer skills and secondly, she is handicapped by her lack of Cantonese since about 98% of jobs today require Cantonese. It goes on to say that despite those set backs, the agency which she registers with will have to market her to the right companies. On that basis, the plaintiff is totally employable. 37.On the other hand, the 3rd defendant has obtained its own expert employment report concerning the plaintiff from Mr Shael Gautama, the Chief Executive Officer of Top Executive Ltd and a director of Top Secretary Ltd, both employment agencies. 38.For all the reasons already gone into above in respect of her limitations in qualifications, skills, experience and language, he is of the considered opinion that placing the plaintiff in the position of executive secretary would be a highly challenging proposition in Hong Kong, and an investment of time and effort which could not be justified on a bottom-line basis. He further states that his companies have on their files many better qualified and experienced candidates for similar positions who were unable to secure similar employment in the same capacity in such tough market conditions. 39.Looking at the two reports, it appears to me that the two experts are not really so different. It seems to me that they are really saying very similar things but only chose to express them in different ways. 40.While I cannot rule out the possibility of the plaintiff taking on some form of employment when her children have grown sufficiently such that she can be freer than she is now from looking after them, that must remain a remote possibility in the future as yet filled with much uncertainties. In those circumstances, I am unable to accede to the suggestion that the plaintiff has sufficiently proved those basic requirements which are necessary for loss of future earnings not only to be awarded but also to be calculated by a multiplier/multiplicand method. 41.I do however accept that she has shown in the present case, that because of her injuries, she had lost the chance of returning to some form of employment at some time in the future because the medical consensus is that those injuries are likely to be permanent. 42.In assessing that lost chance of returning to employment in future, I am of the view that there are not sufficient matters which have been proved, albeit on balance of probabilities, for me to adopt the multiplicand/multiplier method of assessment. I, therefore, propose to assess that lost chance by adopting a lump sum figure of $50,000. Should it be thought that this figure, which is at best highly speculative, to be too modest a figure, that would, in my view, only be right in the light of all the attendant remoteness, vagaries and uncertainties which I have found to accompany the claim under this head of damage. Future medical expenses 43.The plaintiff claims $130,000 under this head of claim both for psychiatric treatment and physiotherapy. The 3rd defendant says that a sum of $18,440 would be sufficient on the basis that the plaintiff's injury is not serious and she will fully recover in a few years time. 44.For my part, I accept the opinion expressed by the medical experts, namely that her whiplash injury is likely to be permanent and her adjustment disorder is due the consequences of her whiplash injury. 45.In so far as future medical expenses are concerned, the 3rd defendant has conceded the $15,000 claimed by the plaintiff in respect of psychiatric treatment. What is disputed between them is the claim for acupuncture/physiotherapy which the plaintiff claims $115,200 but which the 3rd defendant is only prepared to concede $3,440. 46.In this respect, I note the plaintiff's own evidence that for one or two months after the accident, she attended physiotherapy about two or three times a week and thereafter she has had physiotherapy from time to time when she felt the pain in the neck was severe. 47.I accept the plaintiff's evidence that at the time of the trial she was still receiving physiotherapy, but not with the frequency as in the first few months after the accident. She also gave evidence that there is no regularity with which she attends physiotherapy, sometimes it is once a month, sometimes twice a month. Each time she pays $600. 48.In the circumstances, it is not unreasonable to assess the future cost of the physiotherapy at one session a month. That will give an annual cost of $7,200. The plaintiff is now 36 years old. A multiplier of 14 would be appropriate. That would give a figure of $100,800. 49.Therefore, added to the $15,000 agreed for psychiatric treatment the total amount assessed under this head of claim comes to $115,800. Interests 50.Interests at the conventional rate of 2% p.a. will be awarded for general damages for pain suffering and loss of amenities from the date of the Writ and interests for all pre-trial losses at half judgment rate from the date of the accident. Summary of assessment
Accordingly, the total amount of damages assessed for the plaintiff comes to $783,355.90. Order
Representation: Mr Nicholas Pirie, instructed by Messrs Munro Claypole & Reeves, for the Plaintiff The 1st Defendant, Wui Yip Company Limited in person, absent The 2nd Defendant, Mr Ko Wing Yeung Mike in person, absent Mr Ruy Barretto, SC, instructed by Messrs K.F. Wong & Co., for the 3rd Defendant |
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