Yu Shui Chun v. Club Chisen Ltd.
Read the full judgment text of HCPI 134/1994 on BabelCite. This High Court CFI judgment was delivered on 22 December 1998.
1. This is an assessment of the plaintiff's damages following an accident at her place of employment on 28 December 1991. She was employed as a public relations hostess by the defendant club, which operated in Central for members only and exclusively served the Japanese community. The plaintiff's duties included welcoming members to the club, taking them to their seats, serving their drinks, conversing with them, dancing or singing with them if required, and generally creating a pleasant atmosph
Cited by 2 cases
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HCPI000134/1994 HCPI134/94 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO.134 OF 1994 ------------
------------ Coram : Master Jones in Court Date of Hearing : 8, 9, 10, 11, 12, 13 and 14 December 1998 Date of Judgment : 22 December 1998 _______________ JUDGMENT _______________ 1. This is an assessment of the plaintiff's damages following an accident at her place of employment on 28 December 1991. She was employed as a public relations hostess by the defendant club, which operated in Central for members only and exclusively served the Japanese community. The plaintiff's duties included welcoming members to the club, taking them to their seats, serving their drinks, conversing with them, dancing or singing with them if required, and generally creating a pleasant atmosphere. She worked six days a week from 8 pm to 2 am and her remuneration structure involved various factors, including commissions, but with a guaranteed minimum monthly salary. 2. The accident occurred when the plaintiff slipped on a patch of water whilst on duty in the defendant's premises. She sustained a fracture to the head of her right femur from which she continues to suffer pain, discomfort and some disability. On 21 May 1998 interlocutory judgment was entered for the plaintiff by consent, but limited to 90% liability. I shall therefore assess damages on the basis of 100% liability and reduce the eventual award accordingly. 3. The plaintiff apparently suffered severe pain in her right hip as an immediate result of the accident. She was admitted to the Queen Mary Hospital, where x-ray examination revealed the fracture of the right femoral head. It was treated by emergency fixation with three screws under general anaesthesia. She remained in Queen Mary Hospital from 28 - 30 December 1991, when she was transferred to the Maclehose Medical Rehabilitation Centre. She was released on 25 March 1992, giving a total period in hospital of 88 days. She was granted sick leave until 18 March 1993, a period which is no longer disputed by the defence. The plaintiff was aged 24 at the accident, and medical opinion on both sides considers that the fall must have been a particularly awkward one to cause a fractured femur in one so young. The fracture was classified as a "Garden Type II" - namely a complete fracture, but without displacement. 4. It is undisputed amongst the medical expert witnesses that the fracture of the femoral head has led to the condition known as Avascular Necrosis, or AVN as it is called in the trade. The pathology of this condition is that the blood vessels to the femoral head cease to function, and the consequent loss of blood supply causes bone deterioration and death of tissue in that area. As the condition progresses, the femoral head (which is the ball in a ball and socket joint) gradually loses its surface roundness at the top. This flattening process increases and is accompanied by a narrowing of the joint space between the femoral head and the wall of the socket. This culminates in an inward collapse of the entire femoral head, at which point osteoarthritis has been achieved. 5. The are apparently several measurement scales used by the profession to indicate the stage of a patient's development of AVN at a given point. The scale used by all medical witnesses in this hearing is that known as the Ficat Scale, which postulates four stages of development based on radiological evidence from onset into full osteoarthritis. I was reminded by Dr. Shroff, who testified for the defence, that this classification is essentially an academic exercise and that I am concerned with assessing actual disability. I presume Dr. Shroff means that for diagnostic purposes the scale imposes artificial divisions on what is essentially a gradual process of deterioration. 6. Of course I accept this comment, although it appears to beg the question of the plaintiff's current condition and the prognosis based thereupon. It is here that there is a difference of opinion between Dr. Shroff on the one hand and Dr. David Fang, Dr. Lau Hoi Kuen and Dr. Wu Wing Cheung on the other, the latter three witnesses being called by the plaintiff. Dr. Fang is an orthopaedic surgeon who has treated the plaintiff from the outset until the present day. Based on x-rays in November 1997 and May 1998, he considers her present stage of AVN to be at least stage III on the Ficat scale, with indications that stage IV (osteoarthritis) has commenced by reason of narrowing of the joint space. He also said that a bone scan in May 1996 had indicated stage III at that point. 7. Both Dr. Lau and Dr. Wu, also orthopaedic surgeons who have examined the plaintiff, place the condition of her AVN at stage III, whilst Dr. Shroff, a surgeon with considerable experience in orthopaedics, considers it to be no more than stage II. Dr. Shroff's opinion is based on x-rays taken on his own instruction in February 1998 (exhibit D.4), and on the x-rays forming part of Dr. Fang's evidence taken in November 1997 and May 1998 (exhibits P.2 and P.4). 8. Dr. Shroff invited the court to consider the x-rays as showing neither loss of sphericity in the femoral head, nor narrowing of the joint space - both indications that the AVN had not advanced beyond stage II. I note however that in his second report of 23 February 1998 Dr. Shroff does indicate (at page 130) "slight loss of sphericity of the femoral head". I am not anyway qualified to interpret x-rays in evaluating the existence or otherwise of small but significant physiological changes indicating the progress of a disease. This is more particularly so when that is the very area of difference of opinion between eminent practitioners. In the circumstances I shall rely on a simple head count of medical opinion and accept a probability that the AVN had reached stage III by May 1998 at the latest. In reaching this finding I also take into account Dr. Fang's conclusion on the bone scan in May 1996 independently of radiological evidence. The significance of the court's finding lies in the evidence that stage IV is inevitable once stage III has been reached. Dr. Fang said that this inevitability arises from the loss of surface integrity in the femoral head, leading to stress and consequent collapse and osteoarthritis. On the other hand Dr. Shroff's opinion in his second report is that the AVN diagnosed at stage II was likely to remain permanently at that stage by reason of the lapse of more than 6 years since the accident. My finding of stage III AVN, and the inevitable progress therefrom to stage IV, renders Dr. Shroff's opinion as to the stability of stage II irrelevant. 9. The plaintiff's claim for pain, suffering and loss of amenities is for $700,000 - $750,000, which according to Ms. Lam for the plaintiff places her in the middle of the "substantial injuries" category of Lee Ting Lam. In reaching this conclusion Ms. Lam has apparently applied a 20% upward revision to the range of awards suggested in Chan Pui Ki in July 1996. Such an increase is not however supported by evidence and is too high to reflect inflation since that date. Mr. Tsang for the defendant concedes an annual upgrade in the guideline awards of 6% annually since Chan Pui Ki, and I accept that as a conservative reflection of intervening inflation. Mr. Tsang also differs from Ms. Lam in his Lee Ting Lam classification of the plaintiff's injuries, proposing an award at the lower end of the "serious injury" category, which he suggests would amount to $450,000 allowing for inflation. 10. In urging the lower classification Mr. Tsang contends that the plaintiff's condition falls precisely within the words which, in general terms, seek to define its limits, namely -
11. He also points out the success of the initial operation, the plaintiff's uneventful recovery and the relatively mild nature of the pain according to the medical evidence. Indeed Dr. Fang in his report of 27 May 1998 agreed with Dr. Shroff that the pain was not severe. Dr. Fang did however qualify this by adding that the pain could not easily be controlled by anti-inflammatory drugs - "because these have given rise to quite severe epigastric pain or ulcer syndrome". This side-effect of the anti-inflammatory drugs, and the treatment it has itself required, has inevitably added a further dimension to the plaintiff's suffering. 12. I also note that the plaintiff's condition is not stable. According to the medical evidence, stage III AVN will inevitably deteriorate into osteoarthritis, which is itself prone to deterioration. The "serious injury" category of Lee Ting Lam appears however to contemplate a stable condition as a basis for assessing suffering and loss of amenities. Whilst the plaintiff's past and present condition may be within that physical category, there is a considerable element of future probability which also falls to be evaluated. 13. The likelihood of an operation for total hip replacement within 5 - 10 years, given the plaintiff's present condition, was assessed by Dr. Fang at 70%. Dr. Lau placed it at 60-70%, and Dr. Wu said that the operation was likely within 5 years but did not mention percentages. Dr. Shroff was not asked. In his submissions on future medical expenses, Mr. Tsang urged that there should not be an award for the cost of this operation, in view of the uncertainty that it would ever be needed. Dr. Lau and Dr. Wu agreed that it was difficult to predict when it would be necessary. Dr. Fang in his most recent report of 14 November 1998 concedes the possibility that a hip replacement may not be necessary. However he qualifies this with the comment - "However the likelihood would be highest that she would have gradual deterioration and increase in osteoarthritis, so that eventually a hip replacement will be necessary". 14. The court is dealing in probabilities, and on the medical evidence the probabilities of an operation for total hip replacement are inescapable. The distance in time of that operation diminishes neither its probability nor the plaintiff's attendant suffering and loss of amenities. There is moreover a particular reason in relation to the age of the plaintiff why the time factor in the operation should not count heavily once the operation itself is probable. 15. When a young person suffers from AVN which is likely to deteriorate into osteoarthritis, it is apparently medical practice to delay the hip replacement as long as possible, subject to pain and other factors in each case. The chances of a revision operation (a second replacement) after 10 years are high, and the younger the patient the more likely this becomes. With someone so young as the plaintiff there is also the possibility of a third replacement. A revision operation is more difficult than the first replacement, and its chances of success are apparently less. This is the more so with a second revision (a third replacement) which according to Dr. Lau would be "terrible". To avoid or delay these factors the initial operation is itself delayed as long as reasonably possible in the individual circumstances. In the context of either PSLA or cost, it would therefore be inconsistent to disregard the hip replacement operation because of its delay, when the delay itself is the product of accepted medical practice. 16. The "substantial injury" category of Lee Ting Lam specifically mentions only physical injuries and their consequences. The words used are not of course subject to interpretation as a statute, and they cannot therefore be said to exclude the mental or psychological aspect of suffering. This is an area argued by Ms. Lam for the plaintiff as justifying an award in the higher category. In this context she relied on AG v Chung Yat Nam [1995] 1 HKC 218, and cited in particular the passage at the end of page 232 discussing the Lee Ting Lam classification, where Penlington JA said - "However loss of mental ability and, as here, personality change is without doubt as much a loss of an amenity as the loss of a limb." 17. It is Mr. Tsang's position for the defendant that the issue of mental or personality damage does not arise in the absence of evidence from a qualified psychiatrist or psychologist. Although not a qualified psychiatrist or psychologist, Ms. Alice Tsang interviewed the plaintiff as an occupational therapist over a period totalling 12 hours in early 1998. Ms. Tsang gave evidence and produced a report of admirable length and detail (exhibit P.6). Psychology apparently represented a substantial part of Ms. Tsang's training, and she produced an impressive CV showing that her 20 years experience included clinical work in the psychiatric units of several hospitals. 18. I therefore accept Ms. Tsang's comments when she speaks of the plaintiff suffering from insomnia and depression, low self-esteem, feeling socially isolated and suffering irrational fears about weight on her injured hip. These are areas well within Ms. Tsang's considerable expertise, and I make this finding despite Dr. Shroff's comment that the plaintiff did not have psychiatric or psychological problems. Ms. Tsang also said that these complaints were rooted in the injury, and that she was satisfied that they were genuine. She said that these irrational fears are common in such circumstances and would restrict the plaintiff's activities to a low level. I am therefore satisfied that the deprivation of amenities consequent upon such lack of activity has been directly induced by the interaction of physical and psychological factors emanating from the accident. Ms. Tsang recommended psychological counselling to help re-integrate the plaintiff into society, and Dr. Fang has also advocated this measure. 19. In evaluating the claim for PSLA I note that the plaintiff's loss of physical amenities is discussed in her first witness statement. She cannot sleep well, she cannot run, she walks with a limp, she cannot play golf or tennis, go jogging or perform aerobics, all of which she used to do regularly before the accident. Her evidence on these items has not been challenged. Additionally, she says that she cannot dance and does not therefore go to parties, and her relationship with her boyfriend of 10 years ended in 1995, as she was always in pain and sad and could not go out with him. I accept Ms. Tsang's evidence that this social isolation is psychologically rooted in the accident. 20. In her second witness statement the plaintiff claims to suffer depression and feelings of inferiority, as she walks with a limp and uses a stick. She also does not wish to contact friends as they will discuss her illness. Her lack of activity outside her home is confirmed by the surveillance report commissioned by the defence (now part of the agreed bundle). The report shows that she only went out twice during observation over 6 mornings, and each time it was in connection with treatment. 21. The plaintiff was initially in hospital for 88 days, and later, on Dr. Fang's recommendation, she was again admitted to the Maclehose Rehabilitation Centre from 3 June to 10 July 1998. There were other periods of sick leave of 14 days each in late 1992 and late 1993. She has visited Dr. Fang and other doctors and health care specialists many times, and according to Dr. Fang she has on several occasions been admitted to hospital feeling generally unwell. Dr. Fang is moreover satisfied as to the genuiness of her complaints, as also is Ms. Tsang. Apart from the pain in her hip, which has been described as not severe, she has suffered loss of stamina and stomach pain from ulcers as a result of the anti-inflammatory drugs. 22. These aspects of the plaintiff's condition and treatment fall for consideration with the probable need for total hip replacement and its post-operative treatment and pain, plus the loss of amenities from the interaction of physical and psychological factors. Taking all these together I am satisfied that the plaintiff has suffered a substantial impairment within the second category of Lee Ting Lam. I agree with Ms. Lam that it should be in the middle of that category, and allowing 6% pa increase to the guideline awards since July 1996, I place the figure at $650,000. The award itself will be adjusted to reflect the agreed 90% liability. 23. The plaintiff's pre-accident earnings represents a major area of dispute between the parties. Additionally, the defence contests the multiplier and contends that the plaintiff has failed fully to mitigate her loss by failing to work when she was able to do so. At pages 44 - 57 of the agreed documents are the details of the plaintiff's remuneration for the 14 months inclusive from December 1990 to January 1992. By reference to the details for January 1991 at page 45, the plaintiff explained the various entries. The "salary" entry represented a basic payment of $150 per day for the number of days worked. "Table 155" meant 155 units of 15 minutes each actually spent attending to customers, for which she was paid $20 per unit. Drink commission on drinks ordered by the customer was at $15 per unit, and "nomination" was a payment when a customer specially asked for her company. A further item appearing in other months is "DOH", which is apparently a $50 payment each time a customer is brought back to the club by arrangement. 24. The plaintiff also explained that she was entitled to a guaranteed salary calculated at the rate of $600 per actual working day, which she would receive as a minimum irrespective of the total of the individual items. She would receive the higher of the two figures, but there would be deductions of $200 per day for absence without leave, and $2 per minute for lateness. 25. This remuneration formula was apparently complicated by a change in the club's ownership in February 1991, leaving the plaintiff as the only remaining hostess employed by the previous owner. As such, her guaranteed $600 per day salary exceeded that of the other girls, who were newly employed at a guaranteed $500 a day. In order to avoid a pay increase all round, the plaintiff said that the new management reduced her guarantee to $500 a day but offset this by an unofficial cash allowance of $3,000 a month for make-up and clothes with effect from March 1991. She apparently continued to receive this extra sum until her accident, but there is no supporting documentary evidence. The defence disputes the receipt of this sum, pointing out that there was no mention of it in the plaintiff's witness statement in the earlier Employees Compensation proceedings. 26. In addition to her salary and various other payments through the club, the plaintiff claimed to have received substantial amounts in tips. In her first witness statement she said these ranged from $10,000 - 15,000 a month and averaged $13,000. In her oral evidence she gave the average figure as "about $15,000". In the nature of tips there is no documentary or other independent supporting evidence, and this element of her claimed remuneration is also disputed by the defence. 27. The difficulty in establishing an average monthly level of tips as part of her income is again compounded by the omission from the plaintiff's witness statement in the Employees Compensation proceedings of any reference to tip receipts. In cross-examination the plaintiff was referred to her Employees Compensation application (at page 376 of the agreed bundle), and to her witness statement in those proceedings (page 380). The application adopted the figure of $12,416 as earnings for the last working month prior to the accident (November 1991), and $13,000 as the average of monthly earnings for the previous 12 months. These figures are of course advanced pursuant to the terms of section 11 of the Employees Compensation Ordinance. The figure of $12,416 is repeated at paragraph 8 of the EC witness statement, but neither tips nor the extra payment of $3,000 per month is mentioned in either document. 28. In reply to defence counsel on this omission, the plaintiff said she was unaware that she could include tips and bonus in the EC claim; she thought it was only salary which could be included. She said that in her application and witness statement in the EC proceedings she was guided by her lawyers and signed whatever figure was put to her; she did not anyway understand what she was signing as the documents were all in English. She further said that it was only when she was asked about tips and bonus that she realised these items could be included, and this apparently led to their inclusion in her witness statement of March 1998. These answers were given by the plaintiff in the course of denying the defence suggestion that her evidence of the tips and the $3,000 bonus amounted to invention. 29. There are two aspects to evaluating the plaintiff's evidence of the tips and the bonus; firstly overall credibility, and secondly accuracy as to quantum, assuming no adverse finding on credibility. I have observed the plaintiff over several hours of testimony, which included a long and searching cross-examination. She was not an easy witness to follow as her answers frequently ventured beyond the context of the question. It was difficult to keep her to the point. However I did not get the impression that she was lying. She was essentially honest, but seemed confused on occasions and her memory was not always reliable. I make no adverse finding as to the omission of reference to tips and bonus in the documents filed in the EC case. She seemed genuinely puzzled about this and understandably ignorant of procedure. 30. I have mentioned Ms. Tsang's evidence of the plaintiff's psychological disabilities, and this confirms my own impression of the plaintiff during her earlier testimony. She seemed overborne by her continuing misfortune from this accident to the extent that she was not always capable of considering it clearly. She certainly did not always express herself clearly and admitted that her memory was sometimes poor. I therefore find that although she was honest in her evidence, I am unable to find a probability of her claimed quantum for earnings from tips. Not only is this evidence unsupported, but with tips we are necessarily seeking an average figure from a fluctuating total comprising many individual sums received several years ago. 31. I readily accept however that the plaintiff received substantial tips in the course of her work. A job as a club hostess, entertaining businessmen, serving them drinks, chatting and dancing with them and generally helping them to relax, is bound to attract tips in the course of an evening. Some of these tips will be substantial, particularly when alcohol starts to have an effect. The difficulty is therefore one of quantum, and I must be conservative in estimating a probable average level of tips received. 32. In her witness statement the plaintiff claims $13,000 a month for tips; more than her official monthly earnings. In an average month of 21 working days, as disclosed for 1991 by the figures at exhibit D.1, that would produce average daily tips of $619. As an average this is a high figure given that there will inevitably be quiet evenings when the tips may amount to little. However, considering the nature of her job, her relatively high remuneration as a young woman in 1991, and the type of customer for whom the club catered, I find it unlikely that she would have received average tips of less than $300 a day. Applying this figure to the average month of 21 working days, I find that the plaintiff would probably have earned not less than $6,300 a month in tips. 33. The plaintiff's claim for $3,000 a month as a bonus, following the reduction in her guaranteed daily rate, is also unsupported by documentary or other independent evidence. It is however a claim of a somewhat different nature from that for her earnings from tips. It is a precise monthly figure, rather than an average figure derived roughly from fluctuating earnings over a distant period of several months. As such, it is less vulnerable to errors of memory or unconscious exaggeration. 34. The plaintiff's evidence of the $3,000 was the same in court as in her witness statement several months earlier, and did not appear implausible under cross-examination. I note also the undisputed drop in the guaranteed daily sum after the first two months of 1991, which at least establishes the factual background to the plaintiff's claim to the extra payment. I accept the plaintiff's honesty, and therefore accept her credibility subject to the reservations expressed earlier. These reservations have less force here than in the context of her receipts from tips. I therefore accept her evidence of the $3,000 per month received as bonus from March 1991 to the end of that year. 35. Ms. Lam for the plaintiff has accepted the breakdown of earnings for 1991 and for January 1992 appearing at exhibit D.1. They are anyway extracted from the plaintiff's own documents at pages 45 - 57 of the agreed bundle. The basic earnings of $10,793 per month are agreed, but no more, save the monthly figure representing the annual bonus. To these will now be added $3,000 per month for the 10 months from March 1991 to the end of that year, which will average at $(3,000 x 10 x 1/12) = $2,500 per month. The sum of $6,300 per month for tips will also be added, with the monthly figure for the $4,000 annual bonus (page 57 of the agreed bundle), amounting to $333. The plaintiff's total monthly earnings at the time of the accident are therefore established at $(10,793 + 2,500 + 6,300 + 333) = $19,926. 36. The plaintiff's sick leave expired some 15 months after the accident, a period which is no longer disputed by the defence. She did not however commence work until 11 July 1994 when she started as a full-time hostess at the New Cat's Eye lounge. This was managed by a friend who knew of her accident and was apparently sympathetic. The plaintiff worked until 24 August 1994 and earned a total of $28,582.50. She was not able to drink alcohol because of her medication and was physically unable to dance. Thereafter the plaintiff resigned and it is undisputed that she has not since been employed. She said that she had tried selling clothes to Indonesia, through an intermediary and working from her home, but this was unsuccessful and she made a loss. There is no evidence to the contrary. 37. It is the defence case that the plaintiff's failure to work since the accident, save for the short period as a hostess, is unreasonable and amounts to a clear failure to mitigate her loss. Dr. Fang has testified that he encouraged her to find work, and Dr. Lau said that she was physically capable of full-time work in a sedentary occupation, such as a clerk, secretary, or telephone operator. Even with AVN, sedentary work is apparently possible, although Dr. Lau stressed the need to be able to move from time to time, as even sitting for a long period would produce discomfort. He said it would be unusual to ask a patient to stay at home and not to work, and that doctors usually recommend an active life so long as there is not too much stress. 38. The burden of proving a failure to mitigate loss is of course on the defendant. Ms. Lam again cited Chung Yat Nam to show that the reasonabless of a plaintiff's behaviour in regard to mitigation is to be judged by the effects of the injury, mental as well as physical, on the particular plaintiff. This is the thrust of the argument for the plaintiff that she has not failed to mitigate her damages. She may have been physically capable of doing certain jobs, argues Ms. Lam, but the mental effect of the accident upon her was such that she could not be criticised for not working. 39. There is another aspect to this argument which is not dependent on any psychological impairment the plaintiff may have suffered. This postulates that mitigation does not require an injured plaintiff, at the instance of a wrongdoer, to assume work which for good reason is not to the particular plaintiff's liking. This is a principle which in general terms I accept, and it is well supported by authority. Ms. Lam cited the unreported English case of Melia v Key Terrain, appearing in the 4th edition of Kemp & Kemp, where Sachs LJ said -
40. The defence argument is that the plaintiff should have commenced work as a hostess at the end of her sick leave in late March 1993, and furthermore, having started such work in July 1993 she should not have resigned. She then could have earned at least $10,000 a month as a hostess until about April 1996, when the evidence shows that the condition of her hip deteriorated. Thereafter the plaintiff could have taken a sedentary job earning at least $7,000 a month, a low figure in order to accommodate the plaintiff's pain and her inexperience, as well as the time for training and looking for a job. 41. Speaking of her job as a hostess at the New Cat's Eye lounge in July and August 1993, the plaintiff said -
42. I do not find the job of a hostess readily susceptible to division into component parts of its duties - some of which could be done by a partly disabled girl, and some of which could not. I find it likely that the customer would want the undivided attention of the girl he is with. If he wanted to dance, she should be ready to dance. If he wanted a drink, she should fetch it. The job, on the evidence of the plaintiff and as supported by Ms. Tsang's evidence of their discussions, involved greeting the customers and showing them to their tables, fetching drinks, dancing with them, taking them to taxis, and sometimes physically helping them when they were drunk. 43. Apart from all these aspects of the job which require physical effort, there would be the constant need to be pleasant and to make the customers relax and spend money. I find that the plaintiff's evidence confirms my own conclusion that a partially disabled hostess, under medication, unable to dance and conscious that she limped, would not be a success. The constant entertainment of strangers with the inability to show her own feelings must be a demanding proposition in terms of both morale and physical stamina for even a fit young woman. For the plaintiff it must have been a heavy burden and I am not surprised she was unable to continue. 44. I do not find realistic the suggestion that she could have worked as a hostess provided that she did not dance and she spent a lot of the time sitting. Such a hostess would not be doing her job properly, and the evidence has shown that even sitting for a prolonged period produces discomfort and the need to stand and move around. I do not therefore find that the plaintiff's resignation from her job at the New Cat's Eye lounge amounted to a failure to mitigate her losses. The hostess job was clearly unsuitable to her condition, and having tried it for the first time since the accident, she understandably resigned. 45. I find support for this conclusion in Ms. Tsang's report at page 44 of the bundle, where she discusses the plaintiff's lack of competitiveness in the hostess job. Also relevant is the report of Dr. Paul Lam, whose occupational therapy report was commissioned by the defendant. Dr. Lam uses a chart of the plaintiff's response to individual activities demanded of the job of hostess, and demonstrates that in all but one out of six demands she was unable to cope. The chart appears at page 14 of Dr. Lam's report. 46. Since her resignation however the plaintiff has not worked at all, apart from her failed venture in the clothing trade with Indonesia. The total period of unemployment is over five years, and the defendant maintains that this does not reflect a reasonable attempt by the plaintiff to mitigate her loss of earnings. My earlier finding in the context of evaluating PSLA was that the plaintiff's damages should cover the loss of amenities from the interaction of physical disability with the observed psychological impact of that disability. This is however a long way from a finding that the plaintiff was psychologically impaired to a degree which prevented her from working at all. 47. The emphasis of the medical evidence, including that of Ms. Tsang, has been on the suitability of sedentary jobs to the plaintiff's situation. Included in this category by Dr. Lau have been jobs such as clerk, cashier, and telephone operator. Dr. Lau said that he would recommend patients to work as part of their re-integration into society, and Dr. Fang did in fact encourage the plaintiff to work. Ms. Tsang (page 45 of the bundle) discounted the plaintiff's pre-accident occupations before she became a hostess, on the ground that they involved too much unsuitable physical activity. She recommended sedentary occupations, and specifically suggested work as a receptionist or clerical assistant, and included sales provided it was sedentary work, such as at a tourist agency. 48. However Ms. Tsang also drew attention to the plaintiff's low academic level and her lack of competitive experience even in those jobs which may be suitable to her. Ms. Tsang indicated the need for training, as well as the uncertainty that such training would prove successful. She concluded that there would be doubt as to the plaintiff's success in any future possible occupation and further doubt as to her progress to a higher level. 49. I accept that the occupations reasonably available to the plaintiff are limited to those discussed by the medical witnesses. I also accept that even within that category the plaintiff has personal limitations as to education, physical disability and competitiveness. Her employability would be low and the remuneration she could expect would not nearly match her pre-accident earnings. These factors do not however entitle the plaintiff to assume, at the defendant's expense, that her employability is nil and accordingly not to seek employment, or even vocational training. 50. This is not a situation where the plaintiff, in the words of Sachs LJ cited earlier, would be "unduly pressed" by the tortfeasor. She is a young woman who is physically capable of working and whose psychological condition is not, on the evidence, such that it would prevent her doing so. Her difficulties in competitiveness and the limited spectrum of available jobs may be reflected in a low assessment of her notional earnings. However I find that the defendant has discharged its burden of establishing that she has failed to mitigate her loss of earnings. 51. It is not easy to quantify this failure in terms of notional monthly earnings. Mr. Tsang for the defendant has produced official statistics for clerical workers in the hotel and banking businesses indicating average monthly wages of $11,131 and $11,392 respectively between 1994 and 1998. Based on this, and making allowance for the plaintiff's physical condition, her inexperience, her need for training and the time to find a job, Mr. Tsang suggests $7,000 a month as notional earnings. He seeks to apply this figure from April 1996 to date, taking into account that April 1996 marks the deterioration in the condition of the plaintiff's injury. 52. For the period prior to April 1996, Mr. Tsang has suggested notional earnings of $10,000 a month to reflect his contention that the plaintiff was unjustified in resigning from her hostess job in August 1994. He also seeks to apply the same figure to the period from the end of sick leave until the start of that job on the basis that the plaintiff could have commenced work immediately her sick leave ended in late March 1993. 53. I have already found that the plaintiff's resignation in August 1994 did not amount to a failure to mitigate her loss of earnings, and to that extent Mr. Tsang's argument for a notional $10,000 a month to April 1996 must fail. For the period from the end of sick leave to the start of the hostess job in July 1994 I also find it an inappropriate amount for notional earnings. Implicit in my acceptance of the plaintiff's justification in resigning from that job is the finding that her condition made her unsuitable for it anyway. I have discussed this earlier in relation to the resignation, and insofar as there was no significant change in her condition between March 1993 and July 1994, I find her equally unsuited to her pre-accident employment at the earlier date. 54. I do however accept Mr. Tsang's figure of an average $7,000 a month as the level of the plaintiff's notional earnings, although I apply this figure from an early stage in her unemployment, and not from April 1996 as Mr. Tsang suggests. It is a low figure which will accommodate the various disadvantages from which the plaintiff suffers. The $7,000 a month will be applied from July 1993 in recognition that the plaintiff could not reasonably be expected to obtain employment immediately after the end of her sick leave in March 1993. It will then run for 12 months until the start of the hostess job in July 1994, and thereafter from September 1994 until the present date, with the exception of the sick leave in the Maclehose Rehabilitation Centre. 55. To obtain the median pre-trial figure for estimating loss of earnings to date, Ms. Lam seeks to apply 15% pa on the salary and bonuses, but excluding the tips. I agree with Mr. Tsang that this is unreasonably high and the evidence is not there to justify it. I allow a 6% annual increase to the overall earnings figure of $19,926, which includes the reduced monthly average for tips. The median earnings figure will therefore be $(19,926 + 29,961 x 1/2) = $24,943. On this basis, the plaintiff's pre-trial loss of earnings will be -
The total pre-trial loss of earnings, to which the 90% liability will be applied, is therefore $1,637,950. 56. To establish the post-trial loss of earnings Ms. Lam seeks to apply a multiplier of 15, arguing that the plaintiff is now just 31 and her evidence shows that her hostess colleagues ranged in age from 18 to 48. Even assuming that to be true, there is no evidence to show whether 48 was a common upper age limit, or represented an isolated case. Bearing in mind the nature of the occupation I conclude that hostesses over 40 would be a rarity. 57. The uncertainties of the job must also be taken into account, as well as the uncertainties of the economic conditions on which the availability of such jobs will largely turn. A further factor is the possibility of retirement following marriage. The plaintiff had a long term relationship at the time of the accident, and marriage in the 10 years thereafter must have been on the cards. It hardly needs saying that the demands of her job would not be reconcilable with a successful marriage. 58. Mr. Tsang seeks a multiplier of 3, which I find too low. I do however agree that the uncertainties surrounding the particular occupation require a lower multiplier than would otherwise be the case. Unsurprisingly there is a dearth of useful cases, however in all the circumstances I find the correct multiplier to be 8. This will also accomodate contingencies such as time off work for future treatment or operations, as well as the risk of losing a job by reason of such absence. Applying this multiplier to the median pre-trial earnings will give a loss of future earnings in the sum of $(24,943 x 12 x 8) = $2,394,528. This figure will again be reduced to reflect 90% liability. 59. Turning to the special damages, the medical expenses already incurred are supported by receipts and are substantially uncontested. The plaintiff was not questioned on the relatively small sum in dispute, and the figure of $78,758 is accepted. The travelling expenses are supported by the plaintiff's evidence and by a detailed schedule, which again has not been challenged in cross-examination. The figure claimed of $25,610 is accepted. The claim for tonic food in the sum of $8,800 is reasonable in the circumstances and has not been tested in evidence. That is also accepted. 60. There is a claim for $250,000 for the future cost of the operation for total hip replacement, plus the revision operation thereafter. The figure is based on Dr. Lau's evidence that the initial operation would cost $100,000 and the revision $150,000. I am satisfied of the probability of the initial operation, and the evidence shows that the revision operation is a probability within 10 years thereafter. Both operations are however potentially well into the future, the second operation obviously much more so. 61. I have already pointed out that much of this delay should be discounted insofar as it is produced by accepted medical practice in order to reduce the chances of a revision operation. Bearing in mind the probability of the initial operation I therefore allow the figure of $100,000 claimed in that respect. The revision operation is however based on a compounded uncertainty reaching possibly more than 20 years into the future. In the circumstances that is disallowed. 62. The remaining items claimed, but not agreed, amount to continuing treatment and medication, post-operative treatment and nursing, general and post-operative psychological counselling, domestic help both generally and post-operative, and the purchase or rent of various aids to everyday living. Most of these have been recommended in Ms. Tsang's report. 63. There is a claim for "about $12,000 per annum" with a multiplier of 20, giving $240,000 for continuing treatment, medication and associated travelling expenses. Whilst expenditure of this nature appears very likely, the amount is an estimate, and the multiplier extravagant. A lump sum of $100,000 is accepted. 64. Post-operative physiotherapy and occupational therapy are claimed in respect of two future operations. The figures appear in Ms. Tsang's report and are supported by Dr. Lau. I allow them for one operation only, as I have disallowed the cost of the revision operation. The sums of $62,467 and $6,400 are allowed for physiotherapy and occupational therapy respectively. 65. Post-operative nursing and post-operative counselling have both been recommended by Ms. Tsang, and the figures are found in her report. The sum of $174,720 is allowed for the nursing and $9,000 for the counselling. Ms. Tsang also recommends general domestic help to enable the plaintiff to be independent of her mother, who now does all the housework and is over 60. The domestic help would involve the heavier household duties and would cost, according to Ms. Tsang $87,630 for a year at $60 per hour for 28 hours a week. A multiplier of 20 is claimed, which I find excessive. $873,600 is allowed on the basis of a multiplier of 10. Three months extra post-operative domestic help is also recommended for 15 hours a day, giving $82,125. This is also allowed. 66. Psychological counselling is recommended by Ms. Tsang and supported by Dr. Fang. At page 54 of her report Ms. Tsang recommends monthly sessions for two years at a cost of between $1,000 and $2,000 each. Taking a middle figure of $1,500 I allow $36,000 for this item. Six additional sessions are recommended for post-operative treatment and a further $9,000 is allowed. 67. The remaining items recommended by Ms. Tsang amount to aids to daily living and rehabilitation machines such as a treadmill. Some of the figures cited contain elements of future renewal expenditure and maintenance. They are precisely calculated, but I find a lump sum award appropriate for post-operative medical equipment and other medical and rehabilitation equipment. Bearing in mind Ms. Tsang's figures and the advance payment for the expensive items, I allow $100,000. The total award, with the bracketed figures representing 100% liability, is therefore -
68. The total award, allowing for 90% liability, will therefore be $5,604,920. Credit will be given for the EC award in the sum of $362,109.24. Interest will run on the general damages at 2% from writ to judgment, and on the special damages at half the judgment rate from the accident to judgment. Interest after judgment will be at the judgment rate, and there will be a 14-day order nisi for costs to the plaintiff with a certificate for counsel.
Representation: Miss C.C. Lam instructed by Susan Liang & Co. for the Plaintiff Mr A. Tsang instructed by Y.C. Lee, Pang & Kwok for the Defendant |
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