Au Yeung Miu Sum v. Tsang Kwong Wai and Another

HCPI000244/2001

HCPI-244/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF INSTANCE

PERSONAL INJURIES LIST NO. 244 OF 2001

____________

____________

Coram: Master M. Yuen in Court

Date of hearing: 6, 7 May, 19, 20 August 2002

Date of handing down judgment: 21 March 2003

___________________________________

ASSESSMENT OF DAMAGES

___________________________________

1.This is a personal injury assessment arising out of a stereotype cutting-of-lane traffic accident happening on 12 June 1998. The plaintiff was a bus driver. The 1st defendant was the driver of a light goods vehicle owned by the 2nd defendant. The 1st defendant cut into the plaintiff's lane causing the plaintiff to brake her bus abruptly to avoid a collision. In the course of braking, the plaintiff's chest hit onto the steering wheel of the bus. The nearside rear of the defendant's goods vehicle grazed the offside front of the plaintiff's bus slightly.

2.On 4 November 1998 the 1st defendant was convicted of careless driving. On 16 February 2001 the plaintiff initiated the present proceeding. On 9 January 2002 she obtained judgment on liability against the defendants with damages to be assessed.

(I) The plaintiff's background

3.The plaintiff was born on 13 August 1943 in the mainland. She was almost 55 years old at the time of her accident and was aged 59 at the time of the assessment hearing. She worked as a bus driver for Kowloon Motor Bus Company Limited. Her husband died of cancer some 6 years ago. She has 3 grown up daughters, 2 of whom had moved out. She was residing with her eldest daughter who was gainfully employed.

4.During her medical assessment interviews she disclosed to Dr. Lam and Dr. Singer that she learnt Chinese opera since the age of 16 and was playing a leading role until the business faded. Whilst testifying in court she said she only took part in the Chinese opera on an amateur basis. She became a bus driver at the age of 45.

5.There was no dispute that the physical injuries the plaintiff suffered in the course of the impact was not extensive. The plaintiff's case rested upon the development of a psychosomatic disorder as a result of the injuries she sustained in the accident. The defendants defended their case on the contention that the plaintiff was exaggerating and/or malingering.

(II) Medical Consultations and Findings

Queen Elizabeth Hospital ( 12/6/98)

6.Right after the collision the plaintiff felt pain in her chest, her waist and her 2 knees. She felt dizzy and was taken to the emergency unit of the Queen Elizabeth Hospital. She was treated and discharged on the same day. Medical report from the emergency unit reads :-

" General condition was good. Tenderness over sternum, back of neck and right knee. X-ray of sternum showed slight depression at anterior cortex mid-sternum. The clinical diagnosis was sternal contusion, soft tissue injury neck and right knee."

United Christian Hospital ( since 14/6/98)

7.Two days after the accident the plaintiff consulted the doctors at United Christian Hospital and her medical findings were:

"On examination, there was mild tenderness over left thigh and left neck muscle. No other injury was found. She was treated and discharged."

Ngau Tau Kok Jockey Club Clinic (since June 98)

8.The plaintiff attended the Ngau Tau Kok Jockey Club Clinic in June 1998 and complained of neck pain and bilateral knee pain after the accident. Her medical findings were:-

" Physical examination revealed bruises around both knee joints, range of movement of both knee joints was limited by pain; there was tenderness around both knee joints. She could not stand on toes with her right leg because of the knee pain. She was diagnosed to be suffering from sprain injury of both knee joints."

9.The plaintiff attended the same clinic for follow-up consulations and was referred to the Orthropaedic specialist at Cartias Medical Centre Hospital for further management.

Orthopaedic clinic of Caritas Medical Centre (since 14/8/98)

10.The plaintiff had sought medical treatments from the Orthopaedic Clinic of Caritas Medical Centre on 14/8/98. The doctor's report reads:-

" She complained of bilateral calf pain and knee pain for 2 months and she related her symptoms to a traffic accident 2 months before the consultation.

At the consultation, both of her knees looked normal with no deformity, the range of movement was slightly restricted on the right side but normal on the left knee. Tenderness was felt at the medial point line over the right side. There was no effusion, the ligaments were not lax and no locking was found. She was able to walk unaided. She also complained of insomnia. X-ray was taken in the follow-up visits and showed no abnormality. Magnetic Resonance Imaging of her knees were performed on 2 December 1998 and showed normal ligaments and menisci. A right popliteal cyst was noted but cannot explain her symptoms. At her last follow-up visit, she still complained of the same kind of pain over her right knee but with a better range of motion. She was seen by a psychiatrist, a private neurologist for physiotherapist for the same problem."

Po On Leung Wah Bone Setter (since February 1999)

11.Between February 1999 and March 1999 the plaintiff attended the bone setters on various occasions.

Dr. David K.F. Chin and St. Teresa's Hospital (since May 1999)

12.The plaintiff started to seek treatment from private practitioner Dr. David Kim Fai Chin, a neurologist, in May 1999 and was prescribed various medications including Deanxit, Seroxat, Dologesic, Neurontin, Armitriptyline, Lexotan, Voltaren, Strocain, Tagamet, Valium and Naproxen to ease her pain. The plaintiff was satisfied with the treatment she received from Dr. Chin though subsequent medical opinion confirmed Dr. Chin's prescriptions were excessive.

13.Dr. Chin was of the opinion that the plaintiff was probably suffering from ligamental tear of her right knee and the accident has caused "Reflex Sympathetic Dystrophy" ( complex regional pain syndrome type II) in the plaintiff's right leg and that the plaintiff's prognosis for full recovery was not very good. Dr. Chin's opinion was not supported by other medical practitioners. Dr. Tsoi in his report of 18/12/99 said " Dr. Chin raised the possibility of reflex sympathetic dystrophy (RSD) for the explanation of knee pain. However, cardinal signs of RSD such as swelling, sweating, joint stiffness and coldness was not observed."

14.The plaintiff was admitted into St. Teresa Hospital on 17/5/99 under the care of Dr. David Chin on the plaintiff's complaint of exacerbation of back pain. No acute pathology was detected from the Magnetic Resonance Imaging done on her back and right knee.

15.The plaintiff carried on attending the psychosomatic clinic of Caritas Medical Centre for treatment and counselling after her discharge from St. Teresa Hospital.

Psychosomatic clinic of Caritas Medical Centre (since 10/7/99)

16.The plaintiff was found to have no significant orthopaedic problem and was referred to the psychosomatic clinic of the Caritas Medical Centre for consultation. Her report prepared by Dr. KU Kwok-hung reads:-

" Madam Au-yeung was referred to the Psychosomatic Clinic of Caritas Medical Centre by the Orthopaedics Clinic of the same hospital. She has been seen for 3 times, on 10 July 99, 7 August 99 and 11 September 99 respectively. She mainly complained of persistent right knee pain after a traffic accident on 12 June 1998 ....... However, according to her orthopaedic doctors, her knee pain could not be accounted for by the physical findings.

...................

She complained of being socially withdrawn after the traffic accident because of severe right lower limb pain, as well as sleeplessness secondary to the pain. She became nervous and irritated easily, and she lost some body weight in the subsequent 1 year. However, she did not feel depressed subjectively and she never has any post-traumatic psychological effects related to the traffic accident. She had no persistent anxiety symptoms.

According to the patient, her main concern was the persistent right lower limb pain that happened after the traffic accident. As she could not get cured from the Orthopaedics Clinic, she also consulted a private medical practitioner. She received local injections on several occasions and she was prescribed with numerous medications, including analgesics, anti-depressants and anxiolytics. However, she did not recognize she was suffering any psychiatric conditions or psychological factors that might keep her from recovery. During the subsequent follow-ups, her physical and psychiatric conditions remained unchanged, despite supportive psychotherapy and encouragement of physiotherapy to overcome her limb problem.

I am of the opinion that she is suffering from Somatoform Pain Disorder, which is not due to the direct effect of the traffic accident. Instead, the aetiology of her persistent right lower limb pain, if not fully accounted by physical impairment, is at least partly psychological in origin."

Cannie Development Company Limited ( since 6/9/99)

17.The plaintiff attended the said clinic to receive Chinese acupuncture treatments between September and December in the year of 1999.

Po Hong Physiotherapy Centre (since September 99)

18.Between September 1999 and May 2001 the plaintiff attended the said physiotherapy centre for treatment to relieve herself of her shoulder and knee pain.

Dr. Alphonse Poon ( 30/7/01)

19.On 30/7/01 and 31/7/01 the plaintiff attended Dr. Poon for treatment of her gastric ulcer.

(III) Medical Assessment Examinations

20.The plaintiff was examined by orthopaedic specialist Dr. Danny Tsoi on 16/12//99; psychiatrist Dr. Peter Ho on 31/1/00; specialist in psychiatry Dr. Singer on 24/4/01; orthopaedic specialist Dr. Lam Kwong Chin on 3/5/01. On 29/11/01 Dr. Lam Kwong Chin and Dr. Danny Tsoi carried out a joint examination of the plaintiff.

Dr. Danny Tsoi (16/12/99)

21.Orthopaedic specialist Dr. Danny Tsoi examined the plaintiff on 16/12/99. Dr. Tsoi was of the opinion that the plaintiff has fully recovered from her neck, chest, back and knees injuries. His report on the plaintiff reads as follows :-

" ......................

The contusion injury over the chest wall and left knee has recovered to a satisfactory stage and left no residual disability.

It was very likely that the soft tissue of the neck was sprained during the accident and the residual inflammation could give rise to certain degree of residual pain. As no major structure is involved, the prognosis is good and further treatment is not required. It accounts for 1% impairment of the whole person.

Similarly, the back muscle was strained during the accident and the residual inflammation was the main source of the pain. The multiple levels of degeneration of the lumbar spine shown in the X-ray were results of natural degeneration and aging. It should bear no relation to the captioned accident. The soft tissue sprain accounts for another 1% impairment of the whole person.

...................

Madam Au-yeung complained that the right knee was most severely injured. Although she had received lengthy period of conservative treatment, there was persistent intolerable pain over the anterior aspect of the right knee. However, physical examination failed to detect any objective sign to substantiate the complaints. The hypersensitivity and exaggerated response to light touch over the skin could not be explained by physical means. Instead, examination revealed that all the ligaments were intact and there was no sign of meniscal injury. In fact, Madam Au-yeung admitted that she had received MIR scans over her right knee for 3 times but none of it revealed any positive pathology. From an orthopaedic surgeon's view, the alleged knee pain could not be explained. It was very likely that the pain was psychosomatic in nature..............................

In conclusion, it was very likely that Madam Au-yeung only suffered from a minor degree of soft tissue contusion over the right knee during the accident. It was complicated by involvement of psychological factor that gave rise to intolerable pain. Physically, the pain accounts for not more than 1% impairment of the whole person. No physical treatment is required.

Disregarding any pre-existing degeneration and psychosomatic factor, the soft tissue physical injuries over her neck, back and right knee accounts for 3% impairment of the whole person.

Physically Madam Au-yeung is fit to resume her pre-injury job as a bus driver. It was the psychosomatic factor that rendered her totally incapable of performing any kind of gainful work. Orthopaedically, the loss of earning capacity is about 3%. Her actual reduction in working capacity should better be assessed by a psychiatrist."

Dr. Peter Ho's report (31/1/00)

22.On 31 January 2000 the plaintiff was examined by psychiatrist Dr. Peter HO.

23.The plaintiff complained to Dr. Ho that the pain on her back and her right knee did not subside with the drugs prescribed. She experienced a vague pain over her right hip. The effect of physiotherapy on her was unsatisfactory. She has consulted bonesetter and private doctors. She felt dizzy and had headaches. She felt depressed and was anxious that she would never recover completely. She had poor quality of sleep and became irritable. Her mood fluctuated. Her pain aggravated when she was not in a good mood. Her memory and concentration were impaired. She lost interest in general and preferred to stay at home most of the time. Her social contact was reduced. Her appetite dropped and she had lost 10 pounds in weight. She lost her self-esteem and confidence. At times she entertained suicidal thoughts though she made no actual attempt.

24.After interviewing the plaintiff Dr. Ho formed the opinion that there might be an element of psychological overlay in respect of the some of the symptoms described by the plaintiff. Nonetheless the plaintiff's complaint of pain were genuine. Dr. Ho diagnosed the plaintiff to be suffering from a depressive condition related to the injuries she sustained in the accident on 12 June 1998. Dr. Ho believed a 2nd opinion from the neurologist would be more informative. Dr. HO assessed the impairment to the plaintiff on account of her psychiatric disability to be about 20% and the loss of her earning capacity due to her psychiatric problem was about 15%.

25.Dr. Ho opined that a course of psychiatric and psychological treatment of at about 2 years at HK$3000 per month would be beneficial to the plaintiff. On account of her somatic and psychiatric condition Dr. Ho considered the plaintiff to be unsuitable to return to her pervious occupation as a bus driver.

Dr. Singer's Assessment ( 24/4/01)

26.The plaintiff was interviewed by Dr. Singer on 24/4/01.

27.The plaintiff's complaints to Dr.Singer were right knee pain, mild pain remaining in her left knee. She needed to walk with the aid of an umbrella. Her walking distance was limited to one bus stop. The pain in her left shoulder radiated to her head. She experienced pain in her upper back. She had a sense of imbalance and felt numbness in her extremities. She had depressive mood, and a general loss of interest in activities. She had occasional nightmares, suicidal thoughts and insomnia because of pain in her right leg. She was socially withdrawn and had impaired concentration. Since the accident she lost almost 20 pounds in weight.

28.She complained of delusions and had hallucinations of hearing voices calling her name occasionally. Since the end of 2000 she felt she was followed by persons who might assault her.

29.Dr. Singer was of the opinion that the plaintiff had no neurological deficit. She made little attempt to grip, flex or extend her arm when tested. She complained of severe tenderness on her right patella, yet when her attention was distracted she showed no sign of wincing when moderate pressure was applied to her patella. She told Dr. Singer that she walked with the support of her daughter when she attended Dr. Singer's clinic.

30.It was Dr.Singer's view that the plaintiff was exaggerating in a number of her complaints for the following observations:-

(i) the pain in her right knee, left shoulder joint radiating to her head, pain in her upper back and weakness in her upper arms were inconsistent with the absence of physical lesion. There was a total absence of pathology, such as absence of swelling, discolouration, increase in temperature, restriction of movement or atrophy of muscle.

(ii) Her complaint of pain in her right knee was inconsistent with her absence of signs of tenderness in the knee on examination when her attention was distracted. This did not support a diagnosis of psychiatric disorder.

(iii) The plaintiff's relaxed, calm, pain-free demeanour throughout the examination was inconsistent with her complaints of severe constant pain.

(iv) Though it was possible for the plaintiff to be suffering from depressive mood, loss of interest and irritability of a mild degree, such depression would largely be a normal reaction of a person facing the stress of impending litigation.

(v) Her account of nightmares, distressing recollection of the accident, avoidance of recollection of the accident were not given on her own initiative but was in response to questions about them. These complaints were not reported to any of the doctors whom the plaintiff has consulted.

31.As a conclusion, Dr.Singer was of the opinion that the plaintiff was suffering from a mild depression, which should be alleviated with the settlement of the litigation. A course of counselling for 3 months given after the litigation would be helpful, which would cost HK$12,000. Her loss of earning capacity was assessed at 2% and impairment of her whole person was assessed at 2%. Dr. Singer was of the opinion that there was no reason why the plaintiff could not resume her former employment.

Joint medical assessment by Dr. Lam and Dr. Tsoi ( 29/11/01)

32.The plaintiff made similar complaints of back pain, knee pain and numbness of her right foot to both doctors. After examination both doctors were of the opinion that :-

(i) No permanent impairment was expected over her neck.

(ii) The back pain was unrelated to the traffic accident.

(iii) Local tender spot was found over her right knee at the antero-medial fat pad region. This could be due to residual soft tissue inflammation after the contusion injury. Examination of the ligaments, menisci and other structure did not reveal abnormality. The absence of muscle wasting suggested the plaintiff was able to use her right lower limb in the normal manner. The diffuse weakness of her right lower limb could not be explained in orthopaedic science. The symptoms reported by the plaintiff was disproportional to the minimal objective signs. Possibility of exaggeration could not be ruled out. Further orthopaedic treatment is not considered necessary. The residual right knee pain accounts for 5% permanent impairment of the right lower limb or 2% permanent impairment of her whole person.

(iv) The exaggerated symptoms could be related to her psychological or psychiatric disorders.

(v) The analgesics prescribed by Dr. Chin were considered unnecessary. The anxiolytic, sedative drugs might have been prescribed for her psychiatric disorder.

(vi) Orthopaedically the plaintiff should be able to return to her pre-injury job as a bus driver. The right knee pain only causes minimal inconvenience to her working capacity.

(IV) Surveillance Evidence & Court Attendance

33.The plaintiff was taped by the defendant's surveillance team on 24/4/01 and 3/5/01. 24/4/01 was the day the plaintiff went to see Dr. Singer. Her daughter accompanied her. Throughout the journey from her home in Kowloon to Dr. Singer's clinic in Central, she walked unaided. In the tape it could be seen that the plaintiff circled around the office blocks in Central for quite some time when she was unable to find Dr. Singer's clinic. Throughout the time that she was taped she did not seem to need a break for a rest nor did she require any walking aid. The plaintiff, however, told Dr.Singer during the consultation that she walked with the support of her daughter, which was obviously untrue.

34.The 2nd portion of the tape showed the events on 3/5/01 when the plaintiff left her place of residence unaccompanied to go to Mongkok by public transport. Throughout the journey she had the umbrella with her as there was occasional drizzle on the day in question. Throughout the recording there were moments when Madam used the unopened umbrella as a walking stick. However, at times, she had the umbrella hung from her arm. At a certain point of time, the plaintiff was able to stand solely on her right foot when she sub-consciously lifted her left foot for the platform ahead of her.

35.In court the plaintiff sought to explain her absence of pain on 24/4/01 on account of 2 tablets of painkiller that she had taken before going to Dr. Singer and that the tape recording only showed her descending the stairs as opposed to going up.

(V) Findings of the Court

36.The various medical reports showed the injuries the plaintiff sustained during the accident were 3 folds:

(i) sternal contusion,

(ii) soft tissue injury at her neck; and

(iii) soft tissue injury at her two knees, thigh and calves.

37.Two months after the event she recovered substantially from her sternal contusion and her soft tissue neck injuries. There was no permanent impairment on her neck. X-ray and magnetic resonance imaging showed no orthopaedic abnormalities on the plaintiff.

38.Her residual pain in her right knee was due to a residual soft tissue inflammation sustained after the contusion injury. The absence of muscle wasting confirmed the plaintiff was able to use her lower limbs in a normal manner. Normal activity of her lower limbs was supported by the tape recording. Further orthopaedic treatment was unnecessary.

39.The diffuse weakness of her right lower limb could not be explained in orthopaedic science. Dr. Singer and Dr. Ho's opinions differed on the psychological condition of the plaintiff. Dr. Ho was of the opinion that the complaint of pain from the plaintiff was genuine while Dr. Singer believed it was more likely than not that it was sheer exaggeration on the part of the plaintiff.

40.Having heard the plaintiff and the medical practitioners, bearing in mind the other evidence placed before me, I accept the plaintiff only suffered a minor contusion and tissue injury. She had recovered fully from her physical injuries save and except a minor inflammation in her right knee with a mild residual pain. There was no physical pathology to account for her persistent pain over the various parts of her body. Her symptoms were partly psychomatic and partly exaggeration on her part.

41.Despite her physical recovery the plaintiff firmly believed she could not be cured. Subconsciously she believed the pain would remain with her for life. She indulged in excessive and often unnecessary medical attention. Instead of accepting the advice and the opinion of most medical practitioners that she had fully recovered from her injuries, she chose to believe her pain lingered. She proceeded to receive acupuncture therapy and consulted the bone setter though she had no real orthopaedic abnormality. As a result of her obsession with the firm belief that the pain would never subside she developed a psychological disorder which emancipated itself as a mild diffuse bodily pain. She frankly admitted in court that at certain point of time she was taking too much medication that resulted in a digestive disorder for the excessive amount of medications she consumed all at the same time.

42.I accept the plaintiff is suffering from a mild psychosomatic disorder which emancipates itself in a mild form of bodily pain. On the other hand I do not accept that her pain was to such an extent as to affect her mobility or her general ability to look after herself or to engage in simple work. The testing done by the various doctors showed the plaintiff did not register pain when her attention was distracted at the time force was applied to her. Her remaining disability is psychopathic in nature. Her psychosomatic disorder renders her unsuitable to remain as a bus driver, an occupation which requires close and quick co-ordination between the mind and the body. The pain the plaintiff experiences is mild and at time unnoticeable when the plaintiff's attention was diverted, her physical condition ought not deprive her of her ability to engage in manual work such as an office messenger.

43.The plaintiff only suffered a minor contusion and soft tissue injury which healed up in 2 months time. She experienced pain on account of some residual inflammation. Coupled with the development of a mild psychological distress disorder, I assessed the plaintiff's pain and suffering to be below the range of serious injuries set out in Lee Tin Lam [1980]HKLR 657. I assessed her PSLA damages to be HK$250,000 bearing reference to other decisions on psychosomatic disorder such as Yu Heung Yuk HCPI-57/98, Chan Siu Lun HCPI-120/97, Lam Mui HCPI-1155/97, & Joan Carol Boivin HCPI-195/00.

Pre-trial Loss of Earnings

44.There was dispute between the plaintiff and the defendant about the monthly income of the plaintiff at the time of the accident. From the information supplied by the employer of the plaintiff in her employee compensation claim, it was stated that during the 12 months prior to the accident, the plaintiff's monthly income varied from HK$10,799 to HK$13,361. Based on the available information I accept the annual income of the plaintiff from 12 June 1997 to 11 June 1998 to be HK$156,538.40 ($145,018.30 wages + $11520.10 bonus).

45.The plaintiff was never dismissed by the bus company. She received substantial wages from her employer since the day of her accident, even though she was on sick leave, until November 2000 when she was given only her sick leave pay. On the evidence I accept she should be able to engage in basic manual work such as an office messenger from November 2001 round about the time of the joint assessment by Dr. Lam and Dr. Tsoi.

46.Though the mild psychosomatic pain the plaintiff experienced post a hazard to her work as a bus driver, her pain was not of such an extent as to prevent her from performing routine manual work of an office messenger or work of a sedentary nature like that of a telephone operator or a lift operator. She was seen moving rather confidently during the time when her movements were recorded on the tape by the surveillance team.

47.From the salary statement produced by the plaintiff her daily income was HK$242.99 ($111.55 + $13.94 + $117.50) per day in January 1998, HK$ 256.29 ($118.75 + $14.84 + $122.70) per day in July 1998, HK$257.42 ($119.75 + $14.97 +$122.70) per day in July 1999 and HK$ 258.54 ($120.75 + $15.09 + 122.70) per day in July 2000. The increase of her daily salary for the year of July 1998 to June 1999 and of July 1999 to June 2000 were 4.41% [ (257.42 - 256.29) / 256.29 ] and 4.35% [(258.54 - 257.420) / 257.42] respectively.

48.Her yearly income for the year of June 1997 to May 1998 was HK$156,538.40. Had the plaintiff been able to maintain the same working pattern as in the year of 97-98 the plaintiff's likely income for the year of June 1998 to May 1999 would have been HK$163,441.74 [HK$156,538.40 x (100% + 4.41%)]. Making adjustment for the salary increase of 4.35% for the year of 99-00 her income for the year of June 1999 to May 2000 would be HK$ 170,551.46 [HK$163,441.74 x (100% + 4.35%)]

49.There was no information to show any salary increase of the KMB staff since July 2000. In light of the economic climate for the past 5 years, I accept on balance that there was no salary increase from the plaintiff's employer since July 2000. Had the plaintiff been able to maintain the same working pattern as in 97-98, the plaintiff's wages for the period between June 2000 to the trial date on 20 August 2002 would likely be HK$380,187.63 [ 26 3/4 months x (HK$170,551.46 x 1/12)].

50.The sum total of the plaintiff's income received as shown in her salary statements and her bank book between June 1998 to 20 August 2002 were:

(i) a sum of HK$116,284.75 for the period from 12/6/98 to 31/3/99

[(9.5 months/12 months) x (salary from 1/4/98 to 31/3/99)

= (9.5 months/ 12 months) x HK$146,886]

(ii) a sum of HK$141,631 for the period from 1/4/99 to 31/3/00

(iii) a sum of HK$97,053 for the period from 1/4/00 to 31/3/01

(iv) a sum of HK$12,891 from 1/4/01 to October 2001 ( information from her bank book ); and

(v) a likely sum of HK$23,729.79 [9 3/4 months x (HK$29,205.90 x 1/12)] for the period of November 2001 to 20 August 2002 ( there was no bank book nor concrete data on the actual payment received by the plaintiff. The calculation was based on a projection of the plaintiff's sick leave pay she received in the previous year of 2000/2001)

51.According to the quarterly reports of wage and payroll statistics complied by the Census and Statistics Department in December 2000 to September 2002, the average monthly income of a general worker was in the range of HK$7,000 to HK$6,500 per month. The notional income of the plaintiff, had she made an effort to get employment as an office messenger, her monthly income since November 2001 would likely have been HK$6,750 [1/2 (HK$7,000 + HK$6,500)]. Her notional income, had she made an effort to engage in work, for the period of November 2001 to 20 August 2002 would have been HK$65,812.50 (HK$6,750 x 93/4 months).

52.Her loss of pre-trial earning was the difference between the sums she would likely have earned had she been able to carry on with her work as a bus driver and the sums she had actually received from her employer and her notional income which she should be able to fetch had she had an effort to engage in alternative employment. Without the accident her income between 13 June 1998 and 20 August 2002 would be HK$714,180.83 (HK$163,441.74 + HK$170,551.46 + HK$380,187.63). The actual salary the plaintiff received from 13 June 1998 to October 2001 was HK$367,859.75 (HK$116,284.75 + HK$141,631 + HK$97,053 + HK$12,891). The plaintiff's notional income for the period from November 2001 to 20 August 2002 had she made effort to engage in alternative work as a messenger would have been HK$65,812.50. Hence the plaintiff's loss of pre-trial income was HK$280,508.58 (HK$714,180.83 - HK$367,859.75 - HK$65,812.50).

Post- trial Loss of Earnings

53.According to the evidence of the plaintiff the usual retirement age of the KMB staff was 60 years. She testified that she wished to carry on working for KMB until she reached 65 years of age. In the present economic climate, in the absence of evidence from KMB that they would be prepared to extend a driver's retirement age to beyond 60 years of age, I have reservation to accept her retirement age would be extended to 65. Accepting that the plaintiff possibly be able to work till 63 years of age, I adopt 2 as the multipler since the plaintiff was already 59 years old at the time of the hearing of this assessment.

54.According to the quarterly reports of wage and payroll statistics complied by the Census and Statistics Department in September 2002, the average monthly income of a general worker such as a messenger would roughly be HK$6,500 per month. The plaintiff's loss of post-trial income would be HK$185,102.92{2 x [HK$170,551.46 - (HK$6500 x 12months)]}.

Loss of Earning Capacity

55.With the senior age of the plaintiff and the present climate of the economy, the plaintiff's risk of falling into unemployment rests mainly with her age rather than her mental condition.

Future Medical Expenses

56.I accept Dr.Singer's assessment that a 3 months counseling would be beneficial to the plaintiff and award her a medical consultation fee of HK$12,000.

Special Damages

(1) Hospital and medical expenses

57.Plaintiff has incurred the following medical expenses in respect of her medical consultations:-

(i)	Cartias Medical Centre
	63 times x HK$44	$2,772
(ii)	United Christian Hospital
	44 times x HK$44	$1,936
(iii)	Ngau Tau Kok Jockey Club
	12 times x HK$37	$ 444
(iv)	St. Teresa Hospital	$25,385
(v)	Hong Kong Baptist Hospital	$4,930
(vi)	Dr. David Chin Kim Fai	$181,960
(vii)	Drs. Chang, Cheng &Partners	$3,290
(viii)	Cannie Dev Co. Ltd	$3,550
(ix)	Po Hong Physiotherapy Centre	$10,250
(x)	Other clinical expenses	$6,400
(xi)	Bonesetter	$4,940
		_________
		HK$241,093
		=========
Other financial outlay of the plaintiff included the following:-
(xii)	report by Dr. Danny Tsoi	$21,150
(xiii)	report by Dr. Peter Ho	$23,800
(xiv)	report by Dr. David Chin	$7,000
(xv)	report by Cartias Medical Centre	$1,100
(xvi)	report by Hospital Authority	$1,620
		________
		$28,120
		======

58.The expenditure was supported by receipts. However it was clear that the plaintiff's soft tissue injuries were cured long before the assessment hearing. The medical expenses spent in consulting Dr. Chin, hospitalization at St. Tersea Hospital, the Baptist Hospital, the acupuncture therapy treatment, other clinical expense and the bone setter fees were not justified. Her consultation charges with Drs. Chang has been accepted to be reasonable by the defence. I do accept the physiotheraphy treatments were beneficial to her to help in alleviating her psychosomatic pain. The charges incurred towards securing the medical reports were items of costs for the purpose of the present litigation rather than seeking treatment. Hence the items allowed were (i) (ii) (iii) (vii) and (ix), a total of HK$18,692 (HK$2,772 + HK$l,936 + HK$444 + HK$3,290 + HK$10,250).

Travelling expenses

59.Having accepted that the plaintiff's consultation with Dr. Chin, at St. Teresa Hospital, Baptist Hospital, Cannie Dev Company Limited, other clinics and the bone setters to be unnecessary, I only allow the travelling expense in respect of items (i) (ii) (iii) (vi) and (viii). As the plaintiff was only suffering from a minor diffuse pain, she was capable of travelling on public transport. Her claim of HK$100 in respect of her taxi fare was reduced to HK$50 per journey, giving a total sum of HK$1,550 in respect of her visits to Po Hong Physiotherapy centre. Hence her traveling expense is allowed at HK$14,260 [HK$9,450+HK$2,200 + HK$360 + $700 + (HK$50 x 31)].

Tonic Food

60.The plaintiff put in 3 receipts in respect of the bird's nest she bought for HK$144,000 to enhance her recovery. Her contusion and tissue injuries healed up 2 months after the accident. In the doctor's medical opinion her residual tissue inflammation requires no further treatment. I find a sum of HK$8,000 to be reasonable expense for the tonic food she consumed.

Employee Compensation

61.Parties were unable to agree on the exact amount of employee's compensation that the plaintiff has received nor has any evidence been placed before court on the amount so granted.

(VI) Award

62.I accept the following to be reasonable and fair quantification of the Plaintiff's damages :-

(a)	Pain, Suffering and Loss of Amenities	250,000.00
(b)	Loss of pre-trial earnings	280,508.58
(c)	Loss of future earnings	185,102.92
(d)	future medical expenses	12,000.00
(e)	medical expenses incurred	18,692.00
(f)	traveling expenses	14,260.00
(g)	tonic food	8,000.00
		____________
		HK$ 768,563.50
		============

63.I award the plaintiff the sum of HK$768,563.50 in respect of her common law claim. Parties would have to make adjustment and gave credit to the employee's compensation that the plaintiff has received from her employer as a result of the accident.

64.I award interest on the head of pain, suffering and loss of amenities compensation at 2% per annum from the date of the writ to the date of judgment. I also award interest on the loss of pre-trial earnings and the special damages for items (e) to (g) at half the judgment rate from the date of the accident to the date of judgment. Post judgment interest accrues from the date of judgment until payment.

65.I also award costs nisi against the Defendants in favour of the Plaintiff with certificate for counsel. Unless parties apply to be heard on the question of cost, this order nisi would become absolute at the expiration of 14 days from today. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Miss Cindy Lee instructed by Messrs. Peter K.S. Chan & Co. for the Plaintiff.

Mr. A. Sakhrani instructed by Messrs. Ip Kwan & Co. for the 1st and 2nd Defendants.

Remarks:

Appeal by 1st and 2nd Defendants to Court of Appeal. Appeal dismissed and cross appeal allowed. Please refer to the appeal judgment of CACV000090/2003.