Kwok Sui Shum Dorothy v. Hui Lam Ho and Another

HCPI000375A/2001

HCPI 375/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 375 OF 2001

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Coram: Hon Jackson J in Court

Dates of Hearing: 7-10, 15 and 16 October 2002

Date of Handing Down Judgment: 30 October 2002

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J U D G M E N T

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1.On 18 May 1998 just after 9 pm the Plaintiff, who was then aged 37, was the front seat passenger in a private car being driven by her husband. She was wearing a seat belt.

2.The car came to a halt at a 'give way' sign and, shortly afterwards, a taxi driven by the 1st Defendant drove into the back of the Plaintiff's vehicle. The taxi was owned by the 2nd Defendant.

3.The Plaintiff's vehicle suffered slight damage and subsequently the 1st Defendant was convicted of careless driving and of driving when his alcohol concentration was above the prescribed limit. He was fined a total of $5000.00.

4.On the same night of the accident the Plaintiff went to Queen Mary Hospital (Accident and Emergency Unit) but, after waiting for some time without receiving treatment, she was not prepared to wait any longer and she went home. A letter from a Senior Medical and Health Officer at that hospital says this: -

"The [Plaintiff] attended the Accident and Emergency Department of Queen Mary Hospital at 2136 hours on 18.5.98.

At the triage station, she gave a history of sprained neck in a traffic accident. She was fully conscious. ...

She refused to wait for consultation and left the Department at 2220 hours."

5.The accident has given rise to this claim for damages, it being alleged that the Plaintiff suffered 'whiplash' injury and subsequent post traumatic syndrome and depression with other sequellae as a consequence of which she lost her well paid employment.

6.At the start of this trial Mr Pirie, for the Plaintiff, stated that immediately after the accident she felt pain in her neck (which condition has since deteriorated) and she subsequently suffered psychiatric impairment both of which difficulties were a direct result of the accident.

7.On behalf of the Defendants, however, Mr Bharwaney puts his case in this way: -

"The defendants contend that they are not responsible or not entirely responsible for the plaintiff's current position and losses. The plaintiff has the burden of proving on the balance of probabilities that her current loss and damage was caused by the defendants. On the evidence before the court, it is respectfully submitted that she has failed to discharge her burden.

There are four particular aspects...

(a)whether her degenerative neck condition was asymptomatic before the accident;

(b)whether her neck condition contributed to her insomnia, anxiety and depression or whether it was the other way round;

(c)whether her redundancy contributed to her insomnia, anxiety and depression;

and	(d) whether her redundancy was a supervening event causing her insomnia, anxiety and depression."

The medical evidence

8.The Plaintiff's evidence is that on the day following the accident she consulted a 'bonesetter' (whom she consulted on a number of occasions thereafter): took sick leave for a week, and then returned to work. She says that her neck pain persisted and she found difficulty in sleeping and, following a nightmare on 24 October 1998 (5 months after the accident) she went to the Canossa Hospital where she was seen in the outpatients department by Dr Michael Lee who subsequently wrote on the 16 November that her "insomnia aggravated her neck pain consequent upon cervical spondylosis".

9.In a referral letter dated 11 January 1999 Dr Lee says that the Plaintiff presented on 24 October 1998 with a panic attack and hyperventilation. He went on to say, inter alia, that "Besides, she had chronic neck pain aggravated by a minor traffic accident in May 1998". He went on to express the view that she probably had a general anxiety disorder.

10.I just interpose here to deal with one matter in that letter of Dr Lee. The defence has made much during this trial of his words "aggravated her neck pain" suggesting that such pain was plainly apparent to the Plaintiff prior to the accident. With respect that ignores the plaintiff's evidence which was to the contrary; it also ignores the context in which this letter was written; and the date upon which it was written. For my part I do not find in those words any compelling evidence that the Plaintiff told Dr Lee (who did not give evidence at trial) that she suffered from neck pain and discomfort prior to the accident.

11.In a letter dated 2 March 1999 Dr Lee said, inter alia, this regarding the Plaintiff: -

"On 11-1-99 she again visited me in Canossa Outpatients Department. She had been taking herbs for the previous month for sleep. She also complained of neck stiffness and mild shooting pain down both upper limbs. I advised her to have X-ray on her neck and at the same time referred her to a psychiatrist for opinion on general anxiety disorder. She probably did not take the X-ray in our hospital. After this visit, I did not see her again or hear from the psychiatrist to whom I had referred her."

The significance of that is (so says the defence) that the Plaintiff was clearly not suffering from real pain and discomfort because she did not immediately thereafter have X-rays done or consult the psychiatrist, but she delayed for some time in so doing, and only did so then because of intervening events related to her being made redundant from her employment.

12.Indeed it was not until March 1999 that the Plaintiff consulted a psychiatrist and had the X-rays done. The first psychiatrist who the Plaintiff saw was Dr Leo Chiu who said, in short, this: -

"Physical examination of Madam Kwok on 9 March 1999 revealed nothing significant.

Mental examination of Madam Kwok in 9 March 1999 revealed moderately anxious and depressed mood, excessive worries about health, but no delusion, no hallucination and suicidal idea.

My diagnosis for Madam Kwok was panic disorder."

13.The radiologists reported (following examination on 4 March 1999) as follows:

"The cervical vertebrae appear intact, with no suggestion of congenital anomaly, bone defect, destruction, vertebral collapse or vertebral mal-alignment. No significant degenerative changes seen. No cervical rib is noted.

The cervical disc spaces appear well preserved. No suggestion of erosive enlargement or significant osteophytic encroachment of the intervertebral foramina on both sides.

COMMENTS: No Bony lesion is detected. Vertebral alignment, disc spaces and bilateral intervertebral foramina appear normal."

14.On 28 August 2001 the Plaintiff was seen by Dr Edmond K W Woo the Neurologist. Inter alia what he said in a report to the Defendant's solicitors dated 30 August was this: -

"1. Madam Kwok sustained a soft tissue injury (often termed "whiplash") to her neck at the time of her traffic accident in May 1998

2. She has mild residual neck pain [my underlining] with fleeting paraesthesiae in the left upper extremity. There is no objective evidence of any radiculopathy. Now that more than 3 years have elapsed since the accident, further significant improvement in her functions is not expected. The neck pain accounts for a 1% impairment of the whole person ... Treatment is entirely symptomatic with analgesic medications.

3. She should be able to resume her pre-accident job as an accounts officer. She is also able to carry out the duties of an insurance agent. The neck pain may compel periodic rests during the day. The loss of earning capacity is estimated at 1%.

4. Most recovery of functions after a soft tissue trauma occurs during the first 6 months of the accident, although some further, minor improvement can continue up to 1 year. With Madam Kwok's mild injury, she should have recovered sufficiently by November 1998 (i.e. 6 months after the accident) to be able to resume gainful employment. In fact, she returned to work much earlier, in a matter of days after the accident."

15.A radiological/ultrasound report was prepared following an examination on 3 September 2001. That report reads as follows: -

"X-RAY OF CERVICAL SPINE (AP, LAT & BOTH OBLIQUE):

Degenerative changes are seen in the cervical spine. The C 5/6 disc space appears narrowed.

Alignment is normal

No abnormal pre-vertebral soft tissue swelling is seen.

No atlanto-axial subluxation is seen.

COMMENT:

Cervical spondylosis."

16.In preparation for the trial of this action a joint psychiatric report by Dr Chan Chung Man and Dr Chung See Yuen was prepared. The relevant parts of that report are as follows: -

"1. It is agreed that that Madam Kwok is suffering from anxiety and depressive problems. The onset of the mental problems is soon after the accident on 18 May 1998. They are caused by the trauma of the accident and the persistent physical problems, and are aggravated by the loss of the pre-accident job and the marital problems.

2. [We] believe that the mental problems are mild [again my underlining] and the impairment levels caused by them are compatible with most useful functions.

3. Dr Chung believes that Madam Kwok is mentally fit to resume working at the pre-accident job as an accountant. Her work performance would be mildly affected by her complaints of depressed mood, anxiety, difficulty concentrating, forgetfulness, tiredness and lack of interest in activities. Dr Chan opines that with her present mental state due to her illness and side-effects of the psychiatric medication ... she is currently taking from the psychiatric out-patient department of Pamela Youde Nethersole Eastern Hospital, she is not able to work at her pre-accident level yet. She is able to do some work in her field with less demand at present.

4. [We] believe that Madam Kwok is mentally capable of performing housework. The employment of a domestic helper cannot be explained by the mental problems.

5. [We] believe that Madam Kwok has received appropriate psychiatric treatment at Pamela Youde Nethersole Eastern Hospital. She needs to be advised on ways to cope with her problems. She may continue the treatment at the clinic. We believe she will need treatment for two more years. The frequency of visit is around once a month. ...

6. [We] believe that the mental problems will be alleviated and she will be better able to deal with the problems after the treatment or when there is favourable change in her circumstances.

7. We believe that the loss of earning capacity, due to the anxiety and depressive problems, at 5% and the degree of permanent impairment to the whole person at 5%.

8. Dr Chung comes to the following conclusions ...

8.1 Madam Kwok sustained a minor injury on 18 May 1998. Her mood was probably affected by the neck pain for some period of time. She first consulted a doctor for the treatment of her mental problems in October 1998, around 5 months after the accident. There is no clear suggestion that the exacerbation of the mental problems in October 1999 are caused by the accident. It is likely that her work performance was not affected by the mental problems caused by the accident prior to February 1999 ... Her mental condition clearly showed signs of deterioration in March 1999 when she consulted a psychiatrist. I believe that is caused by her knowledge that she would be made redundant in July 1999 [My underlining]. It is likely that the precipitation of the mental problems in March 1999 is caused by the knowledge that she would be made redundant which is not caused by the accident. I believe that the causal affect of the accident has been superseded by the stresses of being made redundant.

8.2 I believe that she would still suffer from the mental problems in March 1999 when she was informed of being made redundant even if the accident had not happened.

8.3 Madam Kwok complains that the marital relationship has got worse after the accident. ... I believe the main cause of the mental problems in March 1999 is the knowledge of being [made redundant] rather than the marital problems.

8.4 Dr Chan has no strong objection to Dr Chung's postulations as mentioned above. However, the possibility of the accident acting as a trigger to all her unpleasant aftermaths as mentioned above [is] worth due consideration." [My emphasis]

17.I now come to the evidence and the expert opinions of Dr Chan Chi-king and Dr Lam Kwong-chin both of whom are specialists in Orthopaedics and Traumatology and both of whom gave evidence in this trial. Dr Chan assessed the Plaintiff on 20 January 2000 and in a subsequent report he stated, inter alia, as follows: -

"Present Complaints

1. Periodical neck pain with each episode lasting for 3 to 5 days

2. Occasional left forearm and left thumb numbness

Clinical Impression

Miss Kwok was a victim of a traffic accident on 18 May 1998, who sustained an injury to her neck. The clinical diagnosis was whiplash injury to the cervical spine. However she was left with persistent symptom of pain which at one time caused her mental disturbance requiring psychiatric treatment. She was still troubled with occasional neck pain associated with numbness over the left upper limb, making sedentary work not desirable.

According to Guides to the Evaluation of Permanent Impairment by the American Medical Association and using the Diagnosis-related Estimates Model., she has assessed to have 5% impairment of the whole person."

18.Dr Chan saw the Plaintiff again on 20 June 2002 when he reported as follows: -

"Clinical Impression

Her symptoms remained the same in the past two years. The physical findings were similar to the one obtained on 20 January 2000. Thus the permanent impairment of Miss Kwok remained unchanged."

19.On 22 August 2002 Dr Chan reported that a magnetic resonance imaging of the Plaintiff's spine was performed on 13 August. He said that that MRI

"revealed degenerative disease of the cervical spine and prolapse of disc at C3/4 and C5/6 levels. The prolapse of disc at C5/6 level caused narrowing the left lateral recess and left neuroforamen, which was compatible with the clinical finding of left upper limb neurological disturbance caused by the traffic accident.

If the symptoms of left upper limb persist and become disturbing, an operation of anterior spinal fusion of the cervical spine may be indicated.

The permanent impairment of Miss Kwok remains unchanged as 5% permanent impairment of the whole person."

20.In a comprehensive report dated 18 September 2001 Dr Lam (who examined the Plaintiff on 3 September 2001) states, inter alia, the following: -

"Present Complaints

1. On an off neck pain. Sometimes affecting sleep.
2. Radiation of pain to bilateral shoulder initially. Now mainly with pin and needle sensation at left shoulder and forearm.
3. Insomnia, requiring sleeping pills.

Physical Examination
Sitting without apparent distress.

Neck

No external deformity.
No loss of cervical lordosis.
On palpation, complained of diffuse tenderness at midline of cervical spine.
No paraspinal muscle spasm felt.
Good neck motion observed during conversation. ...

Investigations

X-rays of the cervical spine were taken.
Degenerative changes are seen in the cervical spine.
The C5/6 disc space appears narrowed.
Alignment is normal.
Comment: Cervical spondylosis

Comment

... Dr C K Chan had suggested that she had whiplash injury to the cervical spine. This is a very common phenomenon after traffic accident, caused by rapid forward flexion and backward extension of the neck during the impact. The injury may result in minor muscle sprain which recover in a few days, to cervical spine fracture dislocation with irreparable neurological damage or even sudden death.

Judging from the behavior of Madam Kwok, even if she did have a whiplash injury at that time, her neck complaint should not be a severe one. If there was genuine and severe pain, there should be no reason why she should not wait to be seen, and left in just 44 minutes after reporting to the triage station.

Madam Kwok said that she returned to work the next day, and continued to seek treatment from bonesetters for about 6 times, roughly once a month. It is noted that she did not seek any proper orthopaedic treatment immediately after the injury, nor during the next 5 months.

She suddenly start to seek treatment from CH in the night of 24/10/98, which is over 5 months after the injury. She was then seen for many times by ... Dr Michael Lee, internal medicine specialist Dr Y K Cheung, psychiatrists Dr Leo Chiu and Dr C M Chan, and psychiatric clinic of PYNEH. ...

It is obvious that Dr Lee considered her neck pain as a result of cervical spondylosis, which is a result of degeneration, rather than due to an accident. ...

... My assessment was done over 3 years after the alleged injury. During my assessment, Madam Kwok still complained of neck pain with radiation to both shoulders, and also pin and needle sensation in the left shoulder and forearm.

On examination, she complained of diffuse tenderness about the midline of cervical spine. However, no paraspinal muscle spasm was felt. It was observed that she had good neck motion during the conversation.

However, she refused to have further examination and claimed that my palpation had caused her too much pain. This allegation was of course just an excuse and exaggerated. There should not be such severe pain even immediately after an injury, not to say 3 years later.

X-rays of her cervical spine showed features of cervical spondylosis. The degenerative changes are caused by years of sedentary work, and could not be caused by an single accident."

21.Dr Lam then went on to say that he had perused the medical reports of all the other doctors who had treated the Plaintiff after the accident and that the only notable features were tenderness and restricted motion, which are subjective claims, and that there were no objective signs such as muscle spasm and neurological deficits.

22.After Dr Lam had seen the Plaintiff again on 29 October 2001 he made the following comments: -

" 1. My physical findings were basically similar to the other assessing doctors. Besides the absence of positive findings supporting the claim of neck pathology, there were many inappropriate signs:

2. When genuine neck pain exists, the paraspinal muscles in the cervical region should be in spasm (tightening up), which would result in loss of lordosis (normal curvature of neck), and could be seen also in the x-rays. Such muscle spasm was absent in Madam Kwok.

3. Madam Kwok showed very restricted neck motion on testing, but the movement was observed to be much better when her attention was distracted. Such voluntary restriction in movement suggested exaggeration.

4. In a genuine injury of neck with nerve root irritation (radiculopathy), there is a combination of pain radiation, muscle wasting, motor and sensory loss in the corresponding myotome and dermatome. Despite her complaints, no such objective signs of motor weakness, muscle wasting or sensory loss was present.

5. As there was no objective evidence in supporting of her neck complaints, I maintain that she should belong to DRE cervical category I, at 0% impairment of whole person."

23.Shortly before the trial Dr Lam considered Dr Chan's reports; the X-ray films and report and the MRI scan films and report. Having pointed out some specific differences in his, and Dr Chan's physical findings Dr Lam went on to say this: -

"It could be seen the X-ray films taken in 1999 already showed slight degenerative changes at the posterior edge of C5/6, as well as some narrowing of the disc space. These had become more prominent in 2001. This showed that the changes are due to a natural degenerative process, and not due to an accident."

and, in relation to the MRI scan, this: -

"It was noted that reduced T2 signal intensity is noted in the intervertebral discs suggested degeneration, which were shown as darkened discs in the scan. In Madam Kwok's case, the changes were very extensive, involving almost all cervical levels, from C2 to C7. This must be degenerative in origin. It is simply impossible for a single sprain to give such diffuse changes in the discs. [My emphasis]

It was also noted that she had central prolapse of disc in C3/4, C5/6 and C6/7 level. Again, this is degenerative in origin. It would be most unlikely for a sprain to cause such multi-level involvement.

The C5/6 level has prolapse of intervertebral dsc... thecal sac indents anteriorly... narrowing the left lateral recess and left neuroforamen. This MRI scan finding could explain the complaints at the left upper limbs, but there is no indication that it was caused by the subject accident. If this prolapse was due to the subject injury, the left upper limb symptoms should be present right after the injury, instead of appearing so many months later. The delay in onset showed that the upper limb symptom was caused by a gradual and spontaneous process, rather than due to the subject injury. ...

To conclude, Madam Kwok had met a traffic accident on 18/5/98. The injury was probably just a minor muscle sprain, which had recovered in a few days.

Madam Kwok had sought treatment on 24/10/98, for reasons basically not due to neck injury. She was then noted to have cervical spondylosis, which is a degenerative condition.

Though she had left upper limb symptoms during my assessment, the physical signs were not convincing ...

The MRI scan showed features of degeneration rather than damage due to acute trauma.

With such vague complaints, surgery is not indicated.

She should be able to work as an accountant, or any other sedentary jobs.

I maintain that she should fall into the DRE cervical category I, at 0% impairment of whole person. The loss in working capacity is 1%."

24.Dr Chan perused Dr Lam's final report and concluded as follows: -

"1. It was not unusual to have variations of physical findings from assessments by different assessors on different occasions. However in the two occasions of assessments conducted by me on 1 February 2000 and 20 June 2002, the physical findings especially the radiculopathy involving left C6 root were fairly consistent. Thus it was genuinely believed that there was radiculopathy involving C6 root of the left upper limb.

2. Plain X-rays of the cervical spine were taken on two occasions on 4 March 1999 and 3 September 2001. On 4 March 1999, Dr Wong Chun Kuen reported as "No bony lesion was detected. Vertebral alignment, disc spaces and intervertebral foramina appeared normal". On 3 September 2001, it was reported as degenerative changes are seen in cervical spine.
For natural degenerative process, it usually takes more than 10 years to have interval radiological changes.

3. In two and half years, the radiological changes over the cervical spine were likely due to causes other than the natural degenerative process. It is known that there is an association between whiplash injury and cervical disc disease.
Thus it was likely that the radiological changes of the cervical spine was due to the whiplash injury sustained in the accident.

4. The MRI of the cervical spine on 13 August 2002 revealed degenerative disease of the cervical spine and prolapse disc at C3/4 and C5/6 levels. It is true that a simple neck sprain is unlikely to cause such multiple level involvement. However the degenerative changes can be caused by whiplash injury which can also cause prolapse disc. It was quoted that the presence of abnormalities on imaging studies does not necessarily mean the individual has an impairment due to an injury. However, the injury can cause or aggravate degenerative changes.

5. If her radiculopathy symptoms of the upper limb remain persistent and disturbing, surgery of anterior spinal fusion is indicated. The result should be good if the pathology shown in MRI is compatible with the symptoms.

6. It is in my view that Miss Kwok has been suffering from a whiplash injury of the cervical spine in a traffic accident on 18 May 1998. The injury resulted in symptoms of neck pain and radiculopathy of the left upper limb. Thus she belongs to DRE cervical category II. My previous assessment of her impairment remained unchanged."

25.I have recited the medical evidence at length because of its importance to this case and because it illustrates a very real divergence of medical opinion. Whilst I feel bound to say that I prefer the evidence of Dr Lam who was, in my view, a most impressive and convincing expert witness, I am not prepared to dismiss the evidence of Dr Chan when he concludes (as indeed he does) that there must be an overwhelming inference that the accident contributed (at least in some part) to the Plaintiff's subsequent physical discomfort and mental difficulties.

The events post accident

26.At the time of the accident the Plaintiff was doing important accounting work for Tupperware Asia Pacific a division of Premiere Products Incorporated. Her monthly salary was in excess of $47,000.00. She was highly regarded and had completed long service. As I have said she returned to that employment shortly after the accident although, according to her evidence, her work performance deteriorated thereafter because of neck pain and lack of sleep as a consequence of which she had to take more work home which in turn aggravated her general difficulties.

27.By letter dated 24 February 1999 the Plaintiff was informed by her employers that as Tupperware was closing its Asia Pacific headquarters in Hong Kong and relocating to Hawaii she would be made redundant on the 30 July of that year when she would receive a severance cheque in excess of $1 million representing a severance payment; a long service payment; pro-rata bonus and a payment in lieu of annual leave.

28.By letter dated 13 April 1999 the Plaintiff was informed that her employers had decided to bring forward the date of the termination of her employment from the end of July to the end of June. It is not clear to me why they did that but suffice it to say that there was at least a suggestion advanced during this trial that it was done because of her deteriorating work performance.

29.In her evidence the Plaintiff told me that after she had received her redundancy notice in January, and albeit there was nothing in writing to that effect, she had been led to believe that she could continue her employment with a 'successor' company and, in the event, that came to nothing. It is undoubtedly true that some members of the 'Tupperware staff' did resume work for the associate company following upon their being made redundant but they were of a different grade of employee to the Plaintiff. Since her redundancy, and I am in no doubt whatsoever that that is what it was, the Plaintiff has worked from home as an insurance agent and at a garden business called Bishi Mizuiki helping with the accounts and other work.

30.She says that she is unable to find work equivalent to that which she had at Tupperware and at an equivalent salary and that even if such work was available she would be unable to do it because of her neck pain and her mental state. Whatever the reason for it may be, I am left with the distinct impression from her evidence that she is quite happy doing what she is doing at the moment and has, in any event, little desire to return to her previous type of work.

31.On the Plaintiff's behalf Mr Pirie has sought to persuade me to find that there is an overall 10% impairment as a result of the accident which merits a pain, suffering and loss of amenities award at the bottom end of the Serious Injury Category but aggravated by a number of factors including prospective pain and suffering.

32.By way of pre-trial losses the Plaintiff claims $47,565.00 per month from the date that she ceased to work for Tupperware until the date of trial, offsetting that by the sums which she has in fact earned in other employment. She also claims the costs of a part time domestic helper, physiotherapy and psychiatric treatment and the loss of insurance perquisites.

33.As to future losses the Plaintiff claims a multiplier of 12-13 and that the losses should be based upon her capabilities in the range of $48,000.00 per month plus 'add ons'.

34.The Plaintiff also claims for future loss of earning capacity in the sum of $350,000.00.

35.In addition she claims the costs of an interior spinal fusion operation at a cost of $120,000.00.

The response to the claim

36.In a detailed and very helpful written final submission Mr Bharwaney for the Defendants set out his assessment of the Plaintiff's claim based (as he put it) upon her 'best case' and his assessment of that claim on the Defendants' 'best case'. As to the latter, I have set that out in paragraph 7 of this judgment and I will endeavour now, in setting out my conclusions, to answer the 4 questions posed there by Mr Bharwaney.

Conclusions

37.I am satisfied on the evidence before me that the Plaintiff's degenerative neck condition was asymptomatic before the accident and that after the accident she suffered some minor periodic neck pain which was not as severe as she suggests. I accept that the Plaintiff's neck pain may well have contributed to her insomnia, anxiety and depression; but so too did her redundancy which was wholly unrelated to the accident.

PSLA

38.It follows from that, that I do not find that her psychiatric condition was caused wholly by the accident. Were it otherwise, I would have made an award of $400,000.00 under this head. In the event I reduce that sum by 40% and award $240,000.00

Pre-trial loss

39.As to the Plaintiff's pre-trial loss of earnings I accept Mr Bharwaney's soundly formulated submission in determining her notional income net of tax for the period October 1999-October 2002 adopting, as I do, the figures and evidence of Mr Neirynch (of Primelink Executive Recruitment) rather than those of Mr Bennett (of Bennett Associates Limited) and rather than seeking to rely upon the speculation or guesswork which would inevitably arise in assuming that the Plaintiff (in accordance with her hopes or expectations unsupported by any convincing evidence) had in fact been employed by Tupperware's successor company upon her redundancy.

40.Mr Bharwaney's submission reads in this way: -

"Pre-trial loss of earnings

Clearly the plaintiff's subsequent redundancy is unconnected with the accident. However, it is the plaintiff's case that she would have secured an accounting post at the Singaporean owned successor company ... of, Cheer Unison, if not for this accident. Nothing had been finalised and no mention made of the salary she would be offered. However, it seems clear that she was spending 50% of her time at Dart Industries and 50% with Premier Products Inc. (PPI). With respect, there is insufficient evidence before the court to infer that any new post she might have been offered at Cheer Unison would be at the same high salary she enjoyed at PPI.

On the basis that she would have been employed by Cheer Unison as an accounting officer the only safe fair and reasonable inference to draw is that she would have earned about $24,000.00 a month (being 50% of her previous pay for the work she performed as financial controller at Dart Industries and which had taken 50% of her time). ...

Obviously she would have taken a well deserved break after receiving a substantial golden handshake and only resumed work in October 1999 after her return from Canada. ...

If Mr Neirynch's figure of about $32,000.00 a month is taken, her notional income amounts to $1,060,800.00 ($32,000.00 x 39 months, inclusive of 13th month bonus, less 15%). MPF benefit is $21,000.00. The total notional income, inclusive of medical benefit, is $1,091,487.00.

From this notional loss $1,091,487.00 must be deducted her income during this period. She earned $10,000.00 at Sampson and $47,775.00 at Bishi Mizuiki from March to September 2002 plus 5% MPF contributions ($6,500.00 x 105% x 7 months). The proper assessment of her earnings from CMG as an insurance agent requires consideration.

The court's function in a tortious claim is to assess fair compensation. The court is not straight-jacketed by tax laws or corporate laws and can look at the reality of the loss suffered or benefit received by the claimant. Here, to conclude that her taxable earnings as an insurance agent were her real earnings is to ignore reality. Even taking the tax return ... at face value, we can see that the cost of equipment, insurance and motor vehicle depreciation and MPF payments ought not to be deducted as "expenditures". She transferred her income into valuable benefits, and just because the tax laws exempt those benefits from taxation does not mean she earned less income. In the same way, at least 50% of the entertainment expenses should be assessed as the benefit she enjoyed personally when she entertained her clients. If we take into account these sums her earnings as an insurance agent increase from $48,119.17.00 to $155,345.00 or $20,713.00 per month from mid August 2000 to 31 March 2001. A similar exercise for the next tax year ended 31 March 2002 produces earnings of $273,361.00 or $22,780.00 per month. Taking the latter as the average continuing income produces further earnings of $136,680.00 to end September 2002 ($22,780.00 x 6 months). Her total earnings as an insurance agent were $565,386.00.

Her total income was therefore $623,161.00 ($565,386.00 + $47,775.00 + $10,000.00).

Her loss of earnings was therefore $486,326.00 ($1,091,487.00 - $623,161.00).

She can claim loss of MPF benefit but loss of the greater pension benefit she received at PPI cannot be laid at the Defendants' door since that loss was caused entirely by her redundancy."

I accept that the figure for pre-trial loss of earnings is $486,326.00 although there is, inevitably, a high degree of speculation in that figure.

41.I will allow the pre-trial special damages claimed by the Plaintiff except for those in respect of which she has been reimbursed and except for the claim for tonic food in the sum of $53,000.00 which to my mind is excessive. $20,000.00 is reasonable for that item. Having deducted $7,400.00 (reimbursed) and $33,000.00 (tonic food) from the amount claimed of $84,443.00 I award the sum of $44,043.00 as other special damages.

42.The claim for a domestic helper is, in my view and upon the evidence before me, without justification and I make no award under this head either pre-trial or as a future expense

Future loss

43.On the evidence before me, and having had the inestimable advantage of observing the Plaintiff giving her evidence during the course of this trial, were her claim limited to her neck condition I would award no lifetime partial loss of future earnings but I would make a small award for loss of earning capacity. However her claim extends beyond her neck condition to her mental problems.

44.I accept that those mental problems will require treatment for 2 more years and that she will not be able to work at her pre-accident level until then. Accordingly I apply a post trial multiplier of 2 years based upon Mr Neirynch's figures, (which I accept) leading to notional earnings of $32,000.00 + annual medical benefit of $3,229.00. From that total must be deducted the Plaintiff's average earnings as an insurance agent and at Bishi Mizuiki totalling $29,605.00 ($22,780.00 + $6,825.00 [$6,500.00 x 105% inclusive of MPF benefit]).

The resulting calculation is as follows:

45.I make no award in respect of loss of earning capacity.

46.The sum of $30,000.00 is agreed for a period of 2 years future psychiatric counselling and I award the sum of $11,700.00 ($60.00 x 15 sessions x 13 years) in respect of future physiotherapy. In this regard I can see no difference in the treatment provided at Southern Centre and that provided at the Babtist Hospital save that the treatment at the former is free of charge upon referral. The $60.00 represents the Plaintiff's travelling expenses to and from the Southern Centre.

47.In respect of the claim for future cervical spinal surgery I respectfully adopt what Mr Bharwaney has to say about this as follows: -

"Even on the best case basis, the evidence only alludes to the chance of such surgery being required. The uncertainties are clear and obvious, particularly the fact that her symptoms have remained the same for the past 2 years and the fact that the surgery is major and may cause paralysis. A substantial discount must be made for the chance that such surgery may not be needed and may be declined. The award ought not to exceed $60,000.00 for the surgery and related costs (representing a 50% discount)."

I award the sum of $60,000.00 in respect of this part of the claim.

48.In my judgment Mr Bharwaney is correct when he says this: -

"In order to succeed to establish her best case ... , the plaintiff must negate the causal effects ... for which the defendants cannot be held responsible. Even if some or all of these factors contributed to the plaintiff's loss and damage in conjunction with the causal effects of the traffic accident on 18 May 1998, the defendants are only responsible for that portion of her loss and damage caused by their tortious act, and an apportionment of the above assessment is necessary before an award of damages can be entered against them."

49.That being so, and again doing the best that I can in accordance with my findings the total sum in respect of future losses awarded to the Plaintiff must be reduced by 40%.

50.The summary of my award is as follows: -

51.Interest on pre-trial loss of earnings and other special damages from 18 May 1998 to date of judgment shall be at half judgment rate and interest on the PSLA award shall be at 2% from the date of the writ until judgment.

52.I make a costs order nisi that the costs of this action be to the Plaintiff to be taxed if not agreed.

Representation:

Mr N Pirie, instructed by Messrs Chung & Kwan, for the Plaintiff

Mr M Bharwaney, instructed by Messrs Munro, Claypole & Reeves, for the 1st and 2nd Defendants