Chan So Kwan v. Mak Siu Kwan Victor and Another
Read the full judgment text of HCPI 1487/2000 on BabelCite. This High Court CFI judgment was delivered on 15 March 2002.
1. The plaintiff was a bus captain of KMB. On 18th December, 1997 at about 9:30 p.m., when she was driving a KMB bus along Junction Road, Kowloon, west bound, she had a collision with a private vehicle driven by the 1st defendant driving as agent of the 2nd defendant. As a result she suffered a whiplash.
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HCPI001487/2000 HCPI 1487/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1487 OF 2000 ____________
____________ Coram: Master K. Y. Chan in Court Date of Hearing: 5 & 6 February 2002 Date of Handing Down Judgment: 15 March 2002 ____________________ J U D G M E N T ____________________ 1.The plaintiff was a bus captain of KMB. On 18th December, 1997 at about 9:30 p.m., when she was driving a KMB bus along Junction Road, Kowloon, west bound, she had a collision with a private vehicle driven by the 1st defendant driving as agent of the 2nd defendant. As a result she suffered a whiplash. 2.Interlocutory judgment on liability was entered by consent on 26th June, 2001. The case is now for assessment of damages. The Plaintiff's Evidence 3.In her witness statement which was admitted as her evidence in chief, the plaintiff said that she was driving across the junction of Junction Road with Waterloo Road when the 1st defendant unexpectedly drove his car across the junction against the red traffic light. She said that the impact was strong as when she saw the 1st defendant, he was already very close to her. She therefore suffered a big shock. She was so shocked that when the police arrived and asked for her a statement, she was unable to give it there and then. She was only to give a statement until some days later. 4.After the accident, she felt uncomfortable but could not tell what was wrong. She could not sleep in that night. Her head, neck and back started to ache and she began to feel dizzy. 5.She returned to work on the next day. But after driving for one round, she felt dizzy. Her head, neck and back ached and her chest felt stuffy. She then went to Queen Elizabeth Hospital for emergency treatment. She was given some painkillers, a few days holiday and then discharged by the doctor. 6.After the sick leave, her pain and dizziness persisted. On 22nd December, 1997 at midnight (the date is from the medical report), she had intense neck pain and had to go the United Christian Hospital for emergency treatment. She returned there for further treatment for 3 or 4 occasions and was then referred to Kwun Tong Jockey Club Outpatient Clinic for outpatient treatment on 8th January, 1998 and to the Physiotherapy Department of the Hospital for physiotherapy on 5th February, 1998 onwards. She was granted 2 days sick leave by the Jockey Club Outpatient Clinic and given 26 sessions of physiotherapy treatment by the Physiotherapy Department from 23rd February, 1998 onwards on a twice-weekly basis. 7.She took the view that there was not much progress with the physiotherapy and therefore defaulted. She was then referred by the Jockey Club Clinic back to the Orthopaedics and Traumatology of the United Christian Hospital for regular check up. 8.Later on she went to Mainland China for massage therapy to reduce her neck and waist pain and she felt that there was a lot of improvement. But she still suffered from frequent headache and her neck would ache when she tried to rotate her head freely. Her limbs were weak and still felt dizzy. Her waist would still hurt if she should sit or stood for a long period. 9.She also said in the statement that as a result of the accident, she had developed phobia for driving vehicles and would be frightened when she saw cars. She would be shocked sometimes upon hearing the tooting of car horn. She had become very forgetful, get tensed easily, frightened and getting more and more depressed. She had also sought psychiatric treatment at the psychiatric out patient treatment service of the United Christian Hospital in May, 2000. 10.In her oral evidence in chief, she added that she had been driving for a long time and never had any accident. After the accident, she was feeling uncomfortable and was scared. She drove the bus back to the depot in the company and with the encouragement of a colleague. 11.She also said that after this accident, she was scared of another accident. She was also scared of cars and the tooting of horns for about a year after the accident. Her conditions improved later. She has also become forgetful and may forget a bout her medical appointments or what to tell the doctor. She still gets tense and is easily frightened and more depressed. 12.In March and April, 1999, she resumed work with KMB. She was firstly posted to non-driving position pending retraining. On 7th April, 1999, she was retrained in Shatin for driving buses. But soon after she had started with the retraining, she felt sick. She had pain and felt dizzy and was sweating too. Her trainer then accompanied her to the Prince of Wales Hospital in the afternoon for treatment. After that incident, she did not drive again. 13.Her ECC claim was settled at the end of July, 2000. he retired from KMB in August, 2000 as she was told by somebody of KMB that she was not suitable for driving and there was no other post for he despite her request. She did not look for another job as she was not confident that she would get it for the little education that she had. 14.Starting from November, 2000, she at the introduction of a former colleague went to Zhuhai, Guangdong for massage treatment and the treatment made her feel better. She kept a record of her trips to Zhuhai for such treatment. 15.In cross-examination, she said that her husband was a bus inspector who retired in 2001 and she has two grown children from her previous marriage. She had a course of physiotherapy consisting of 26 treatments and did not return for more. She then resorted to massage and acupuncture treatment in Zhuhai. She suffered from occasional headache and dizziness. The pain would not be long but dizziness would last longer. If the pain is acute, she would take painkillers. She denied that her complaint of pain was a sham or that she had exaggerated her pain when examined by doctors. 16.For the trips to Zhuhai for massage and acupuncture treatment, she produced a list showing the dates of the trips, the traveling expenses at HK$226.00 and the treatment fee at HK$300.00 for each occasion. She said that the list was compiled by her husband. She has not produced any receipt for the treatment. In re-examination, she said that the costs for the treatment in Zhuhai varied from HK$300 odd to HK$400 odd each time. She at one time also said that she went to Zhuhai once a month though the list recorded more trips. She also said that she did not like the physiotherapy treatment as there was a machine which worked on her neck and produced discomfort on her. I should also mention that she has produced another list showing her trips to Shenzhen for massage treatment, but she made it clear that the trips to Shenzhen were only for relaxation and had nothing to do with her injury. This claim for expenses for trips to Shenzhen was abandoned by Miss Pinto in her closing submissions. The Agreed Medical Reports 17.There are a number of agreed medical reports supplied by various hospitals and clinics. They are as follows: -
18.There is also a Certificate of Assessment issued to her by the Employees' Compensation Ordinary Assessment Board and dated 5th December, 2000. The certificate recorded that there was an assessment on 21st November, 2000 which recorded the injury as sprain neck with neck pain and limited neck range of movement as well as post-traumatic anxiety disorder. It further certified 2 periods of absence from duty from 19th December, 1997 to 12th March, 1999 and from 7th April, 1999 to 18th September, 2000 and a permanent loss of earning capacity caused by the injury at 13%. The Plaintiff's Expert 19.In addition to the above, the plaintiff has also called Dr. Au Ka Kau to testify for her. Dr. Au has interviewed the plaintiff on 9th March, 2001 and made a report dated 21st March, 2001 and a supplementary report dated 28th July, 2001. In preparing his first report, Dr. Au had sight of all the agreed medical reports referred to above save the report dated 27th April, 2001 from the Department of Psychiatry of UCH. Dr. Au's report recorded the plaintiff's complaints of neck pain and upper limb numbness and that her neck pain was caused by turning movement of her head. There were also complaints of frequent headache which was sometimes associated with neck pain. The plaintiff also complained of back pain at night or after prolonged sitting and that had happened for about a year before the interview. She also experienced back pain after standing or walking for more than an hour. She could not negotiate crowds or move or turn quickly. She also suffered from insomnia. 20.The physical examination by Dr. Au also found that the plaintiff could sit and walk normally, stand on tiptoes and on heels and squat. Dr. Au also found that there was no deformity of the neck, but there was tenderness and muscle spasm over the left side of the neck and some limitations of neck movements. 21.Dr. Au also commented that the plaintiff had no wasting of the upper limbs, her movements of the shoulder joints, elbow joints and wrist joints were normal. Her motor power, sensation and jerks were also normal. 22.Dr. Au was of the view that the persistent neck pain is compatible with the injury sustained by the plaintiff in the traffic accident. He applied the AMA Guide and came to the conclusion that the impairment to the plaintiff's body is at 4% whilst her loss of earning capacity is 8%. On employability, Dr. Au formed the view that the plaintiff could not return to her job as a bus captain but she was fit for job of light or sedentary in nature that allowed her to exercise and ease her neck pain muscle from time to time. He quoted the jobs of office assistants, receptionists, cashiers, operators, car park attendants as suitable jobs for the plaintiff. 23.In his supplementary report dated 28th July, 2001, Dr. Au referred to the Certificate of Assessment dated 5th December, 2000 which granted sick leave to the plaintiff to 18th September, 2000 and opined that the plaintiff could take up the jobs referred to in his report after the expiry of the sick leave on 18th September, 2000. 24.In his evidence in chief, Dr. Au further explained that the effect of the injury caused by the accident would take 24 to 48 hours to develop and its effect would be at the maximum at about the 24th hour. Therefore he was not surprised that the plaintiff could have driven the bus back to the depot after the accident. 25.He also referred to the spasm recorded in the report of Prince of Wales Hospital dated 6th January, 2001 which was also observed by him in his examination and his findings of limitation of neck movements as objective findings that supported the plaintiff's subjective complaints. Spasm, according to him, is a phenomenon that would come and go and which may happen on a bad day but not on a good day. He accepted the plaintiff's complaints as genuine because of the objective positive findings by him and as recorded in the report of the Prince of Wales Hospital and the Certificate of Assessment. 26.On employability, Dr. Au further elaborated that a bus driver has to look around constantly to monitor the conditions of the traffic and the job demands a lot of neck movement. If the plaintiff is not in good condition or good mood, she would cause risks to the passengers. Therefore he did not think that the plaintiff should return to the job of a bus captain and suggested light to sedentary jobs. The Defendant's Expert 27.The defendant's expert Dr. David Cheng also examined the plaintiff on 5th February, 2001 and produced a report dated 12th February, 2001. Dr. Cheng also had the sight of the agreed medical reports referred to in paragraph 17(i) to (v) above. However, Dr. Cheng was not given the report dated 6th January, 2001 of Prince of Wales Hospital recording spasm in the muscle on the left side of the neck, the report dated 27th April, 2001 from UCH recording the diagnosis of Generalized Anxiety Disorder and the Certificate of Assessment recording neck pain, limited neck range of movement and post-traumatic anxiety disorder which are referred to in paragraphs 17(vi), (vii) and 18 above. 28.In the interview, the plaintiff complained about her frequent dizziness and headache, pain and stiffness of the neck, especially on sudden jerking or turning or rapid neck movements. She also complained of back pain. 29.Dr. Cheng's physical examination showed that the plaintiff could walk, stand, sit, support herself on any one leg, squat and rise normally. There was also no deformity or muscle spasm and there was full range of motion. There was however tenderness over the lower part of the neck. 30.In the comments of the report, Dr. Cheng said that the accident was a collision and the impact on the bus and Madam Chan was unlikely to be severe. In his evidence in chief, Dr. Cheng clarified that he did not know how the impact took place and had assumed that the private vehicle had ramped into the side of the bus. When he was asked whether the impact would be more severe if the collision took place in the front of the bus and he agreed. 31.Dr. Cheng further commented that there was no positive findings by the doctors who examined the plaintiff and that the plaintiff had received adequate treatment (but he was unaware of the matters recorded in the reports and Certificate of Assessment referred to in paragraphs 17(vi), (vii) and 18 above). He further said that the complaints by Madam Chan to him were entirely subjective, physical examination showed no positive signs and the complaints could not be verified. He finally opined that it was possible that there could be a certain degree of exaggeration of symptoms. He concluded that Madam Chan suffered from a minor neck impairment for which he would give 5% taking reference form the "Guide to Evaluation of Permanent Physical Impairment" and after proper retraining, she can return to work as a bus driver. He also gave a period of sick leave of no more than 6 to 9 months. 32.When he was shown the medical report of the Prince of Wales Hospital in his evidence in chief, Dr. Cheng confirmed that the spasm could support the complaint of neck pain. He said that if no definite cause is found for the pain, it could be due to psychosomatic reasons. He maintained that the plaintiff could return to her job of a bus driver. Findings 33.Having considered the agreed medical reports and the evidence of the doctors called by both sides, I am inclined to accept the evidence of Dr. Au whenever there is a difference between him and Dr. Cheng. The reason being that Dr. Cheng has not been supplied with 2 medical reports and the Certificate of Assessment and was unaware of positive findings that were supportive of the plaintiff's complaints. The findings and comments of Dr. Cheng in his report were thus made without his being fully informed of the conditions of the plaintiff. 34.I have also considered the demeanour of the plaintiff in her evidence. I find on a balance of probabilities that the plaintiff has indeed suffered an injury out of the accident which caused her chest pain, headache, dizziness, and neck pain. She is still suffering from headache, dizziness, and neck pain with occasional spasm of the neck muscle. There is limitation of her neck movements. I also find that she is suffering from Generalized Anxiety Disorder. I do not agree that these present complaints are caused psychosomatically. 35.Following from the above findings, I also find that the plaintiff cannot return to her previous job as a bus captain. A bus driver has to monitor the surrounding traffic conditions all the time. He/she must be alert at all times. The job carries a great responsibility to the passengers. Given the conditions of the plaintiff, I do not think she is capable of returning or should return to her previous job. I am of the view that she is only capable of doing some light to sedentary job as suggested by Dr. Au. Compensation 36.Pain Suffering and Loss of Amenities Miss Pinto for the plaintiff referred to Chan Siu Youn v. Ng Kam Man & Others [2000] 2 HKLRD G9, Tong Lin Leung v. Wong Chi Leung [1999] 3 HKLRD 383, Cheng Lai Kwan v. Nan Fung Textiles Ltd. [1998] 2 HKLRD 729 and Boivin v. Wong King Yin and Another HCPI No. 195 of 2000 and submitted that for the whiplash alone, there should be an award of $100,000.00. She further submits that in line with Cheng Lai Kwan, the award for the plaintiff's psychiatric conditions should merit another sum of $150,000.00. She however accepts that the amount should be less than that in Boivin. She therefore submits that for PSLA, the amount should be between $350,000 to $400,000. 37.Miss Lau for the defendant relied on Li Yee Yuen v. Tam Wing Keung and Another (1985) HKLJ 415, Kung Kit Shing v. Synthetic Flower Factory & Others (1987) HKLJ 251, Chan Siu Youn v. Ng Kam Man & Others [2000] 2 HKLRD G9 and Chiu Wing Sze Karby v. Chan Ying Wai & Others HCPI 616/1999. She further submitted that the plaintiff did not suffer from post-traumatic disorder, her social life has not been affected and she has been able to see her friends and relatives and going to Shenzhen to relax herself. She also remarried after the accident. She thus further submitted that the figure for PSLA should be at $200,000.00. 38.Considering that the plaintiff has suffered prolonged dizziness, headache, neck pain and limitation of neck movement as a result of the whiplash and these problems are still troubling her and she is also suffering from Generalized Anxiety Disorder, I make an award of $300,000 for PSLA. 39.Pre-Trial Loss of Earnings I accept that the plaintiff should be given sick leave from 19th December, 1997 to 12th March, 1999 and from 7th April, 1999 to 18th September, 2000 as certified by the Employees' Compensation Ordinary Assessment Board in the Certificate dated 5th December, 2000. 40.Prior to the accident, the plaintiff was earning an average of $11,891.00 per month. There was a salary increase of 5.39% on 1st June, 1998. Since then, there was no further adjustment to her salary. Miss Pinto has asked me to refer to the salaries of 2 comparable bus captains which show a slightly higher average figure. I decline to do so as the plaintiff has been employed by KMB for many years and had a stable income pattern. Since there is actual evidence of the plaintiff's income, I see no reason why I should resort to comparable evidence. The plaintiff's loss of monthly earnings would thus be at $11,891.00 from 19th December, 1997 to 31st May, 1998 and at $12,532.00 per month from 1st June, 1998 to 18th September, 2000. 41.I find that the plaintiff should be given 2 months after the expiry of her sick leave for her to find a light and sedentary job and that job should provide her with a monthly income of about $7,000. 42.Her pre-trial loss would thus be:
43.Post-Trial Loss of Earnings Prior to the accident, the plaintiff had been a bus captain of KMB for many years without any accident. The usual retirement age for KMB bus captain is 60 which can be extended to 65. The plaintiff is now 57. Miss Pinto suggested that in ordinary circumstances, the plaintiff would have sought and been granted an extension after the retirement age. She therefore suggested a multiplier of 5. She also referred me to the schedules of awards reported in (1998) to (2000) HKLJ to support her contention. 44.Miss Lau on the other hand suggested that if I should find that there should be post-trial loss, the multiplier should only be 3 as this multiplier has also taken into consideration that there may be an extension of employment after retirement. She further submitted that driving a bus is a hard job, the Plaintiff has remarried after the accident and her husband has also retired from the job of a bus inspector. 45.Considering the submissions from both sides, I come to the conclusion that the multiplier should be 4 and I have in particular taken into account of the facts that the plaintiff has been eager to return to her job whilst she was still on sick leave but that she has recently remarried and her husband has also retired. The post-trial loss is thus at ($12,532 - $7,000) x 48 = $601,536. 46.Loss of Earning Capacity I also agree with Miss Pinto that I should follow Li Wan Choi v. Choi Wah Hing & Another hold that because of her problems, the plaintiff would suffer a disadvantage in the labour market. I therefore award [2000] 4 HKC 549 and a 1/12 loss for the multiplier. This loss is at ($12,532 - $7,000) x 4 = $22,128. 47.Loss of Pension The plaintiff was not on the MPF scheme but was on KMB's Employees Retirement Fund Scheme, an MPF exempted scheme. She would have received a sum of $113,840 upon retirement at 60. Since she is being compensated now, there should be a reduction to reflect the interest element from now to her age of 60. I accept Miss Pinto's calculation that an interest rate of 2% per annum is suitable in the circumstances and this sum should be reduced to $107,238. Since her employment was terminated pre-maturely and she had already be given $75,318 under the scheme.The net loss under this head is ($107,238 - $75,318 =) $31,920. 48.Miscellaneous Damages The parties agreed on the sum of $3,296 being the expenses for medical treatment in the hospitals in Hong Kong. The disagreement is on the expenses for the massage and acupuncture treatments in Zhuhai. I accept that the plaintiff had been to Zhuhai for massage and acupuncture treatments. I also accept that such treatments provided her some relief to the pain and discomfort. However, I do not think it reasonable for her to go all the way to Zhuhai for such treatment when similar treatment can be obtained locally. Furthermore, the only evidence of the frequency and costs of such treatment is contained in a schedule annexed to her Supplemental Witness Statement (p. 55 of the Bundle) and the schedule was prepared by her husband and not by her. No travel document or receipt has been produced to verify the particulars in the schedule. The schedule contains the particulars of 41 visits to Zhuhai between 3rd November, 2000 to 13th November, 2001. In the circumstances I am only prepared to award the expenses for such treatments on a twice a month basis for a one year period from November, 2000 to October, 2001. 49.Regarding the expenses for such treatment, the schedule records traveling expenses at $226 per journey and $300.00 for each treatment. I accept these figures. The total sum payable under this head is thus $3,296 + ($226 + $300) x 24 = $12,624. Interest 50.There is agreement on the basis of calculation of interest and I award 2% per annum for PSLA from the date of writ to the date of judgment and half the judgment rate for the pre-trial loss of earnings and special damages from the date of accident to the date of judgment. Wages in Lieu of Notice 51.When the plaintiff's service was put to an end by KMB, the plaintiff was paid one-month wages in lieu of notice at $10,386.70. I have considered whether this sum should be deducted from the award to the plaintiff. I now come to the conclusion that there should not be such deduction as the wages in lieu of notice was not paid to the plaintiff as part of the compensation for her injury. ECC Award 52.The ECC Award at $391,499.25 should be deducted from the sums payable to the plaintiff. Summary 53.The summary of the sums payable to the plaintiff is as follows:-
Judgment 54.I therefore give judgment in terms of the figures in paragraph 53 above. I also make an order nisi that the defendant do pay the plaintiff costs of the assessment to be taxed. I further order that the plaintiff's own costs be taxed in accordance with Legal Aid Regulations.
Representation: Miss Josephine Pinto instructed by Messrs. Alan Lam, Yam & Pe for the Plaintiff Miss Julia Lau instructed by Messrs. Deacons for the Defendant | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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