Lam Hok Fai v. Chan Sai Kit and Anothers
Read the full judgment text of HCPI 377/2003 on BabelCite. This High Court CFI judgment was delivered on 29 October 2004.
1. This is an assessment of damages, liability of the two Defendants having been conceded at 85%.
Cited by 4 cases
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HCPI 377/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 377 OF 2003 ____________ BETWEEN
____________ Before: Hon A Cheung J in Court Dates of hearing: 2 – 5 August and 17, 20 and 24 September 2004 Date of judgment: 29 October 2004 _______________ J U D G M E N T _______________ Assessment of damages 1.This is an assessment of damages, liability of the two Defendants having been conceded at 85%. The evidence 2.The Plaintiff was born on 10 March 1961. He used to work as a construction site casual worker under the employ of the 1st Defendant. On 15 April 2000, whilst working in the course of his employment at a construction site of which the 2nd Defendant was the main contractor, the Plaintiff was hit at the head by a disc-shape object. He was immediately admitted to hospital. Physical examination revealed laceration over the Plaintiff’s vertex. He was neurologically examined and nothing unusual was found. He was treated and was discharged from hospital on the following day. The Plaintiff did not lose consciousness in the accident. 3.Despite the superficial nature of the head injury, the Plaintiff experienced persistent headache, dizziness and insomnia after the accident. On 24 July 2000, he was referred by the Department of Neurosurgery of Pamela Youde Nethersole Eastern Hospital to the Department of Psychiatry in the same hospital for treatment of his insomnia and hypnotic medication. 4.On 19 September 2000, the Plaintiff was referred to and started attending the Psychiatric Outpatient Department of the Prince of Wales Hospital for monthly or bi-monthly consultations. According to a medical report written by a consulting neurosurgeon in the hospital, the Plaintiff was last seen in the hospital’s outpatient clinic, complaining of headache and dizziness, on 16 February 2001. The diagnosis was post-concussion syndrome. He was assessed by a Medical Assessment Board on 26 July 2001 with 0.5% disability on account of his post-concussion syndrome. 5.According to the evidence given both by the Plaintiff and his wife, they having got married in 1990 with a daughter and a son born in 1995 and 1998 respectively, the Plaintiff used to be an active and cheerful person. He was hard working and maintained good relationships with friends, colleagues and his own family. He had a stable mood and good temper. Yet after the accident, not only did the Plaintiff complain continuously of persistent headache, dizziness and insomnia, he had become dull, reticent and quiet. He spoke slowly and with difficulties. He was unable to express himself well and stammered in his speech. His sex life with his wife was very much affected. He lost his temper easily with his wife and children and scolded them frequently over trifle matters. He became irritable and beat his children. He behaved violently towards his wife, which cumulated in an incident in July 2001 in which he slapped his wife on the face. In August the same year, the wife left home with the two children and sought shelter from the Social Welfare Department. 6.According to a medical report prepared by Professor Lok-yee Chow of the Department of Psychiatry of the Chinese University of Hong Kong dated 6 February 2002,
7.The Plaintiff was examined by Dr Yu Yuk Ling, a specialist in neurology, on 2 May 2002. According to Dr Yu’s report dated 3 May 2002,
8.Shortly thereafter (18 June 2002), the Plaintiff was admitted to the Psychiatric Ward of the Prince of Wales Hospital due to deterioration in his condition. He stayed there until 5 July 2002. The diagnosis of moderate depressive episode was made. According to Professor Chow’s report dated 9 September 2002, the reasons for the Plaintiff’s admission to the Psychiatric Ward in June 2002 was as follows:
9.According to the Prince of Wales Hospital’s report dated 3 September 2002:
10.After the Plaintiff’s discharge from the Psychiatric Ward, on 11 July 2002 he started attending the Psychiatric Day Hospital (i.e. Shatin Hospital). According to a report dated 3 March 2003 written by Dr Lui of Shatin Hospital,
11.Pausing here, I should add that the Plaintiff was first seen by Dr C K Wong, the Plaintiff’s expert, a former Professor and Chairman in Psychiatry in the Chinese University of Hong Kong, whose expertise in his field of specialty cannot be doubted, in May 2002, before the Plaintiff’s admission to the Psychiatric Ward in June 2002. I will come back to Dr Wong’s various reports – the first of which was written in July 2002 after the first consultation and Dr Wong’s evidence at trial later on. Suffice to say at this stage that Dr Wong opined in his first report that the Plaintiff was suffering from a major depressive disorder (MDD). He was of the view that the outpatient treatment that the Plaintiff had been receiving (i.e. up to the time of his examination in May 2002 and before his admission to the Psychiatric Ward in June and before his attending the Day Hospital in July after discharge) was not wholly satisfactory or adequate and therefore Dr Wong recommended two years private psychiatric treatment for the Plaintiff. 12.However, Dr Wong’s recommendation was overtaken by events. As mentioned above, when the first report was made, the Plaintiff was still an in-patient in the Psychiatric Ward of Shatin Hospital. After his discharge, he started attending the Psychiatric Day Hospital on a daily basis from 9 a.m. to 4:30 p.m., Monday to Friday, and from 9 a.m. to noon on Saturday. His attendance was interrupted in early 2003 following the outbreak of SARS and the closure of the Day Hospital, which only resumed in July 2003. 13.Dr Wong’s recommendation of private psychiatric treatment was only followed, in those circumstances, in September 2003 when the Plaintiff first attended Dr Law Wun Tong, a psychiatrist in private practice for treatment. There were altogether 5 consultations. Unfortunately, the effort did not turn out to be successful, both according to the documentation as well as the evidence of the Plaintiff. 14.The private psychiatric treatment ended abruptly on 9 October 2003 when the Plaintiff was re-admitted to the Acute Psychiatric Ward of Shatin Hospital due to worsening depressive mood and suicidal ideation. According to Professor Ungvari’s report dated 4 November 2003,
15.According to a report dated 9 February 2004 from the Shatin Hospital, after discharge the Plaintiff’s mental state had become similar as before. He still had problems concerning his marital affairs and other psychosocial aspects and he would become emotional in reaction to them. He was receiving anti-depression medication, psychotherapy and occupational training in the Day Hospital. According to the report, there was no need to arrange private psychiatric treatment to the Plaintiff for the time being and the Plaintiff also strongly refused the suggestion. A subsequent report dated 19 March 2004 from the hospital essentially said the same thing. 16.In evidence is also a very detailed occupational therapy report on the Plaintiff prepared by an occupational therapist at Shatin Hospital. The Plaintiff’s condition at various stages after the accident were set out quite comprehensively in the report, and the same confirmed many of the complaints of the Plaintiff that had been described in the medical reports as well as by the Plaintiff and his wife in evidence. The report was written in November 2003, and the following extract set out the Plaintiff’s condition in the second part of 2003 and the occupational therapist’s recommendation:
17.Apart from the various medical reports and the occupational therapist’s report, there is also in evidence material from the Social Welfare Department regarding the marital and family aspects of the Plaintiff’s life after the accident. Without going into details of individual events here, suffice it to say that the notes from the Social Welfare Department support and provide details regarding the personality of the Plaintiff after the accident, the marital and family problems and difficulties that the family encountered after the accident, the relationship between the Plaintiff and his estranged wife, and that between the Plaintiff and his two children. Whilst the notes and oral evidence of the Plaintiff and his wife mentioned that the Plaintiff alone had, during the SARS period and whilst his son was receiving treatment for his broken arm, taken care of his elder daughter at home, they also told incidents in which the Plaintiff refused his children’s invitations to go out together with them and the Plaintiff’s unexplained refusal to pick up her daughter from school after typhoon signal no. 8 had been hoisted. 18.Dr C K Wong saw the Plaintiff both in 2002 and 2004, and prepared two medical reports on his condition. He also wrote another short letter in reply to the Defendants’ expert’s views. As mentioned above, in Dr Wong’s first report, he recommended two years private psychiatric treatment. He was of the view that an accurate assessment of the Plaintiff’s condition and prognosis could only be made after the two years private treatment. However, the private treatment turned out to be unsuccessful, as has been described above. In 2004, after a second examination, Dr Wong set out his latest view in his second report, which also represented his views and expert evidence at trial. 19.That notwithstanding, it is necessary and instructive to look at Dr Wong’s first report in some detail first. In the first report, after reciting the case history and the Plaintiff’s family problem, Dr Wong said in his first report as follows:
20.In Dr Wong’s second report, which was based on an examination conducted on 30 April 2004, Dr Wong set out the current mental state examination findings and his views on the Plaintiff’s condition as follows:
21.In evidence, Dr Wong elaborated on the reasons why he thought that the Plaintiff’s condition and complaints were genuine, notwithstanding some surveillance video tapes which seem to suggest that in September 2002, the Plaintiff could walk quite normally and that the Plaintiff’s pace in 2004 was markedly slower than before. Dr Wong said in evidence that he was most alert to the possibility of malingering, but from his close observation of the behaviour of the Plaintiff during the two consultations, from the Plaintiff’s subjective complaints, the medical reports and available material, he was positive that the Plaintiff’s condition and complaints were genuine and there was no exaggeration. 22.In oral evidence, Dr Wong further explained why he went to the extent of opining that the Plaintiff could not, for the rest of his life, return to open employment, and why he was of the view that any further attempt on private psychiatric treatment (recommended by the Defendants’ expert – see below) would not be useful, notwithstanding his own previous recommendation for two years of private psychiatric treatment. 23.In a nutshell (writing as a layman), Dr Wong’s view in evidence may be summarised thus: Dr Wong made the diagnosis of major depressive disorder (MDD). The prognosis is poor. MDD is essentially biological in nature, in that it has to be treated by medication. 24.According to Dr Wong, 90% of patients of MDD would respond positively to medication in terms of treatment. However, from the past history of treatment of the Plaintiff, particularly the past two years of treatment in the Day Hospital which, in the opinion of Dr Wong, provides good quality treatment (as opposed to treatment in outpatient clinic, the shortcomings of which have been set out in Dr Wong’s first report), the Plaintiff falls within the exceptional 10% of patients who do not respond favourably to medication treatment. 25.Given Dr Wong’s view that MDD is essentially biological in nature, the efficacy of psychotherapy (whether private or public) is limited. Even if psychotherapy is successful, in that existing stressors in terms of the Plaintiff’s concerns about his heath, workability and family relationships can be removed or substantially improved on, it would only result in maintaining the current functioning level of the Plaintiff and prevent further deterioration of the Plaintiff’s condition. As to whether a successful psychotherapy treatment would bring about improvement in the Plaintiff’s condition, Dr Wong remained doubtful. However, Dr Wong’s bottom line is that since MDD is essentially biological in nature, successful psychotherapy would not bring about complete recovery from MDD. 26.Further, Dr Wong made the point in evidence that in order to remove the stressors, in-depth psychotherapy would be required. Yet such in-depth therapy would be potentially harmful to the Plaintiff if unsuccessful. He pointed to the unsuccessful treatment by Dr Law, resulting in deterioration in the Plaintiff’s condition, and cumulating in the abrupt cessation of the private treatment and the Plaintiff’s admission to the Acute Psychiatric Ward in 2002, as an example. Dr Wong also referred to the Plaintiff’s reluctance to undergo any further private psychiatric treatment as a reason for not recommending it, particularly if it is to be in-depth therapy. 27.Dr Wong explained that if psychotherapy is meant not to be in-depth but only supportive in nature, then there is no need for any private supportive psychotherapy. This is because unlike the outpatient clinics, the Day Hospital that the Plaintiff has been attending since July 2002 up to the present has been providing good quality supportive therapy to the Plaintiff. Given that and given the Plaintiff’s confidence in the treatment that he has been receiving from the Day Hospital, there is really no point in switching to private supportive psychotherapy. More importantly, such supportive therapy would not bring about any substantial improvement in the Plaintiff’s condition, given that MDD is biological in nature and the Plaintiff falls within the exceptional 10% of patients who do not respond well to medication. 28.In short, Dr Wong’s view is that given that the Plaintiff does not respond well to medication, and given that he has been receiving good quality supportive psychotherapy from the Day Hospital for more than two years, no further substantive improvement in the Plaintiff’s condition can be expected, and given the Plaintiff’s condition, he can no long return to open employment. 29.A good summary of Dr C K Wong’s views can be found in his short letter dated 17 July 2004, which was written with direct reference to the suggestion from the Defendants’ expert that the Plaintiff should undergo 15 to 20 sections of intensive cognitive psychological therapy. In the letter, Dr Wong wrote:
30.As mentioned above, the Defendants called Professor Lee, Head and Consultant Clinical Psychologist, Clinical Health Psychology Division, Department of Psychiatry of the University of Hong Kong, as their expert witness. Profession Lee has seen the Plaintiff in consultation twice (in September 2002 and May 2004 respectively). Professor Lee took the view that the Plaintiff is suffering from a dysthymic disorder of a moderate intensity, although he also accepted that from the history gathered, the Plaintiff had apparently suffered from a major depressive disorder shortly after his injury. According to Professor Lee, dysthymic disorder is one form of depressive disorder. The difference between dysthymic disorder and major depressive disorder has been described by theauthoritative Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) at page 343 as follows:
31.Professor Lee accepted in cross-examination that strictly speaking, his diagnosis of dysthymic disorder did not fit with the textbook definition in that there was no definite period of remission or comparative normality. 32.Professor Lee accepted in the box that the Plaintiff’s complaints and condition were genuine, although there was a pre-disposition on the part of the Plaintiff towards focusing on his problems and complaints when examined by doctors and giving evidence in Court. Professor Lee said that the Plaintiff played a “genuine” sick role; that the Plaintiff was compensation-conscious was only human nature. 33.Professor Lee was not as pessimistic as Dr Wong regarding the prognosis of the Plaintiff’s condition. He adamantly refused, in his evidence in Court, to write off the Plaintiff as a “lost cause”. In his reports, Professor Lee recommended a course of intensive cognitive psychological therapy. He explained this in his second report as follows:
34.In evidence, Professor Lee said that the difference between the diagnosis of MDD and that of dysthymic disorder was in substance a matter of labels and severity. Professor Lee emphasised that in reaching the diagnosis, one should focus not only on the biological underpinning, but also on the psychological underpinning as well as the socio- and environmental factors. He said that despite the advance made in the relevant fields of study, the causes of the various depressive disorders are still generally unknown. But Professor Lee emphasised that the removal of the psychosocial stressors would definitely have an improving effect on the Plaintiff’s condition. 35.As regards the Plaintiff’s symptoms and complaints, Professor Lee pointed out that given the heavy dosage of drugs that the Plaintiff had been taking and the cocktail nature of the medication, the side effects of the medication should not be overlooked in assessing the complaints of the Plaintiff. They could at least partially account for the Plaintiff’s complaints, for instance his complaint of tiredness. 36.Professor Lee stressed in his oral evidence that the poor prognosis of the Plaintiff was due more to poor treatment rather than anything else. In particular, he pointed out that the Plaintiff had never been told authoritatively by a neurologist whom the Plaintiff could trust that in fact neurologically and physically speaking, he really had not suffered any serious impairment and he could in fact resume working. Professor Lee was of the view that the Plaintiff’s misconceived idea about his physical ability and his “uselessness” was a major contributing factor to the Plaintiff’s present predicament. He was of the view that if the Plaintiff could be persuaded that he really had nothing wrong physically, that would improve materially his condition. That was why he was of the view that the Plaintiff should undergo a course of intensive psychological therapy in association with consultation of a good neurologist whom the Plaintiff could trust to correct his misconception about his own health. 37.Professor Lee was not particularly concerned about “harmful” psychotherapy because in his view, psychotherapy would only be harmful if it was bad. 38.Professor Lee also explained why, in his opinion, the previous psychiatric treatment rendered to the Plaintiff did not work. He pointed out that that treatment was undertaken in lieu of the Day Hospital treatment that the Plaintiff had derived much benefit from and in which he had developed confidence. Moreover, there was the worry on the part of the Plaintiff that by discontinuing his Day Hospital attendance, he would lose the relevant social allowance from the Government. Professor Lee also pointed out that the charges of the private psychotherapy were not something that the Plaintiff could really afford, and the pending litigation was also a consideration. Professor Lee took the view that if the psychotherapy that he recommended should be undergone after the completion of the present litigation, the result would be very different. 39.In Professor Lee’s view, the Day Hospital treatment that the Plaintiff has been receiving is good, but is not sufficient to focus the Plaintiff on his real problem, to prepare him for eventual return to open employment and to correct his misconceived perception of his own physical ability. In Professor Lee’s words, the Plaintiff has been “over-pampered” by the Day Hospital. 40.Professor Lee also emphasised that so far as the concerns and psychosocial stressors of the Plaintiff are concerned, they must be dealt with by psychological therapy (and consultation of a neurologist). Medication cannot treat life adversities. 41.Professor Lee highlighted to the Court the Plaintiff’s good concentration power during examinations by the experts and in Court, good ability to express himself, interest in his children’s well-being, social interest, good recollection of significant events in the past, ability to take care of himself in living alone, capability to travel, and his capability to take care of his daughter during the SARS period all by himself. He said that these attributes confirmed his view that the prognosis of the Plaintiff is not as bad as that made by Dr Wong, and the Plaintiff should not be written off for future open employment for the rest of his life. However, Professor Lee was not definite that the Plaintiff could return to his pre-accident work. He was concerned about the residual effects of the Plaintiff’s (undisputed) post-concussional syndrome, such as headache and dizziness. 42.Professor Lee pointed out in evidence that in fact even according to Dr Wong’s own report, the Plaintiff had made psychosocial improvements in aspects of his life. He said that Dr Wong had, however, not attached sufficient importance to these improvements, in saying that the Plaintiff had already reached maximal improvement. 43.Professor Lee said that the Plaintiff was not psychotic. In particular, his feeling that he was followed by others on the street was factually correct to the extent that surveillance had indeed been carried out on various occasions on him. 44.Professor Lee said that the treating doctors had not given the Plaintiff sufficient and specific psychosocial therapy; insufficient efforts had been made to bring home to the Plaintiff his real physical condition. Rather medications were used to control the Plaintiff’s complaints, which carried with them their own side effects. 45.Professor Lee agreed that at present the Plaintiff is suffering. He also agreed that in his present condition, the Plaintiff cannot return to open employment. However he was adamant that with adequate treatment, the Plaintiff can in future return to open employment. Findings of fact 46.As regards the Plaintiff’s complaints and condition, as mentioned above, Dr Wong said that they are genuine. He gave very concrete reasons for his view. Professor Lee, retained by the Defendants, did not cast any serious doubt on that view. He did not suggest that there is any question of malingering in the present case, although he did say that either consciously or subconsciously, the Plaintiff’s complaints and condition have been to some extent coloured by the presence of the present litigation. 47.Having had the opportunity of closely observing the Plaintiff while he attended Court and gave evidence at trial, I share the same view. In general, the Plaintiff’s complaints and condition are genuine. But quite plainly the Plaintiff was fully conscious of the fact that he was making a compensation claim against the Defendants and that his evidence would, to a significant extent, affect the outcome of his claim. 48.In my view, there has been no deliberate exaggeration of the Plaintiff’s complaints and condition. But subconsciously, the compensation claim was, according to my observation, very much in the background. The clearest instance of all this was when the Plaintiff was questioned about his speech or slurring problem. Once the question was raised towards the end of the cross-examination, the Plaintiff suddenly started stammering. As I said, having considered his evidence as a whole, I do not consider all this as a sign of malingering. Rather, as I said, the Plaintiff was very much conscious about his compensation claim, and that coloured his subjective complaints of his condition. 49.As regards the Plaintiff’s condition and suffering, I have had the benefit of listening to the Plaintiff’s separated wife, who gave very clear and straightforward evidence before the Court regarding the Plaintiff’s pre-accident condition, what happened to him immediately after the accident, the deterioration of his condition, the change in his personality and behaviour, his failure to return to gainful employment despite attempts, the worsening of the marital and family relationships between the Plaintiff and the wife and the two children, and so forth. The Plaintiff’s wife was a good witness. I have no hesitation in accepting what she said. Of course, she gave evidence from the perspective of a separated wife. But for the purpose of understanding the actual consequences that the accident in question has done to the Plaintiff, her evidence is of much value. 50.There is no real issue on causation. All doctors and experts agreed that the Plaintiff’s predicament, whether in terms of his personal condition, his family and marital relationships, or his working capacity, was factually caused by the accident. Ms Molloy, counsel for the Defendants, did not really challenge the factual or legal causation aspect of the Plaintiff’s claim. Indeed, on the evidence before the Court, I do not think that there is any real scope for such a challenge (which was never made). 51.As regards the true diagnosis of the Plaintiff’s condition, as mentioned before, Dr Wong said that the Plaintiff is suffering from MDD, whereas Professor Lee said that the Plaintiff is affected with the residual syndrome of a dysthymic disorder. Lurking in the background is of course the diagnosis of post-concussional syndrome that was made, first in time, by the Prince of Wales Hospital and subsequently confirmed by Dr Yu, a neurologist. To some extent, all this is a matter of labels, and the differences are a matter of degree only, as Professor Lee suggested in evidence. However, a correct diagnosis is to some extent still important because it affects the prognosis of the Plaintiff’s condition. 52.Having listened carefully to the experts’ views and considered their reports and the material that they relied on, I prefer the diagnosis of MDD made by Dr Wong. He has given full reasons for his diagnosis, which fits better with the literature than Professor Lee’s diagnosis of dysthymic disorder. In fact, Professor Lee accepted in his first report (paragraph 49) that from the history gathered, the Plaintiff “had apparently suffered from a major depressive disorder shortly after his injury”. Dr Wong’s diagnosis is also more consistent with the diagnosis that has been made by the treating doctors. Here, it must not be forgotten that regardless of the eminence of the two experts who have given evidence before the Court, the time that they had spent respectively with the Plaintiff for the purposes of examination and preparation of their reports was relatively brief, and was no comparison to that spent by the treating doctors and institutions. The Plaintiff has been admitted to the Psychiatric Ward twice, and he has been attending the Day Hospital since 2002. The treating doctors and medical personnel’s views must be accorded substantive weight in considering the true condition, diagnosis and prognosis of the Plaintiff. 53.On the evidence, particularly the evidence of Dr Wong and the medical literature, I also accept that whilst the causes of MDD may not be totally known, despite the advances in medical science that we have made thus far, a significant cause of MDD is biological in nature. According to Dr Wong, a biological factor may not have been present at the onset of the condition, which could be psychosocial in nature only. However, as the condition developed, the biological factor came into play and became a significant if not important contributing factor for the worsening or continuation of the condition, so that if the biological factor is not treated (successfully) by medication, the condition cannot be wholly cured. Although Professor Lee referred to and placed emphasis on the psychosocial and environmental factors in the formation or continuation of the condition, he did not dispute that biological consideration is indeed a valid one. Nor did he dispute that so far as the biological aspect is concerned, it has to be dealt with by medication. Psychotherapy, no matter how intensive and efficient, cannot by itself rectify the biological cause of the condition. 54.The Plaintiff’s condition is of course directly relevant to all items of his claim, including pain, suffering and loss of amenities (PSLA), loss of past earnings, loss of future earnings, and future medical expenses 55.In relation to the Plaintiff’s condition and the treatment that he has received pre-trial, the Defendants have through counsel argued during final submission that the Plaintiff has failed to mitigate his loss in that he failed to undergo the two years psychotherapy treatment recommended by his own expert (Dr Wong) back in 2002. Put another way, given Professor Lee’s emphasis on the importance of psychotherapy as part of the global treatment, the Plaintiff’s failure to undergo intensive psychotherapy recommended by his own expert caused or contributed to the deterioration or continuation of his condition. 56.I think Mr Leung, appearing for the Plaintiff, was right in final submission that this argument, essentially an argument on mitigation, cannot be run for the simple reason that it has never been pleaded. Since it never was a pleaded issue at trial, it did not receive, at least from the perspective of the Plaintiff, the attention that it would have received in terms of argument and in terms of evidence if it had been properly pleaded. As I said, I agree with Mr Leung. The Defendants cannot be allowed to run this point. That is the short answer to the Defendants’ argument. 57.In any event, on the evidence that has actually been placed before the Court, I also reject the argument. Dr Wong has explained in evidence that his recommendation in 2002 was made against the backdrop at the time that the Plaintiff was receiving out-patient treatment. In his report, based on his own personal working experience, Dr Wong pointed out various deficiencies in the out-patient system. He therefore recommended two years private psychiatric treatment (comprising medication, psychotherapy and family therapy) for the Plaintiff. That recommendation was overtaken by events because unbeknown to Dr Wong when he wrote his first report, the Plaintiff had since the first consultation with him been admitted to the Psychiatric Ward and after his discharge, he became a Day Hospital patient. According to Dr Wong who spoke with much knowledge and experience in the system in question, the Day Hospital has been providing good quality treatment and attention to the Plaintiff, which the out-patient system could not provide. In those circumstances, the Plaintiff cannot be criticised for not immediately taking up his advice to attend a private psychiatrist for a two-year treatment. Moreover, the early part of the year 2003 was very much dominated by the out-break of SARS. The Day Hospital was closed, and so far as the Plaintiff was concerned, he was extremely fearful of the deadly epidemic. His not seeking private psychiatric treatment in those circumstances is also understandable. 58.As mentioned above, eventually, the Plaintiff got himself discharged from the Day Hospital for the purpose of attending private treatment with Dr Law, the first session of which took place on 4 September 2003. 59.Unfortunately, the treatment by Dr Law did not turn out to be successful, and indeed the Plaintiff’s condition deteriorated to such an extent that the community nurse of her own motion recommended the re-admission of the Plaintiff to the Psychiatric Ward. The private psychiatric treatment with Dr Law thus came to an abrupt end. And after the Plaintiff’s condition had stabilised and he was discharged from the Psychiatric Ward, quite naturally and understandably, he was re-admitted to the Day Hospital, which was where he had been receiving treatment up to the time of trial. 60.In the above circumstances, I do not see how the Plaintiff can be criticised for having behaved unreasonably in terms of mitigation of his loss, or in terms of contributing towards his condition. In any event, he acted upon the advice of those treating him. 61.Mr Leung was again right in final submission that insofar as it was suggested (and I am not sure if it was really suggested as such by the Defendants) that the Plaintiff’s condition was caused or contributed to by inadequate or “negligent” treatments by those treating him in the public or private sector, that would really be an argument of novus actus intervenes – which has not been pleaded. The Plaintiff has not put forward any argument or adduced any or any sufficient evidence to deal with such an argument, and the same should not be allowed to be run. I agree. 62.A major focus of the trial was on whether the Plaintiff is treatable and to what extent he is treatable. In particular, the dispute amongst the experts and the arguments of counsel centred around whether the Plaintiff should undergo the 9-month intensive psychotherapy suggested by Professor Lee. Professor Lee was confident in evidence that the Plaintiff’s condition could be treated if he were his patient, although understandably he went on to qualify his evidence by reminding the Court that there could be no guarantee. Dr Wong did not share Professor Lee’s view, and I have both set out Dr Wong’s view in his own words as maintained in his short letter of reply and sought to summarize his evidence in Court in laymen’s terms. I will not repeat the same here. 63.Suffice to say that I have listened carefully to both experts’ evidence in Court, considered carefully their written reports and the material that they relied on, and I have borne in mind the submissions of counsel (which were extremely detailed and lengthy – Mr Leung’s written closing submission ran to 79 pages whereas Miss Molloy’s written submission comprised 29 pages). I will not repeat the same here. If Professor Lee’s opinion on the chances of success of the 9-month psychotherapy recommended by him should sound over-optimistic, it seems to me that Dr Wong’s reasons for dismissing the suggestion were, with respect, slightly dogmatic. 64.As Ms Molloy has correctly pointed out in final submission, even Dr Wong himself recommended in 2002 that the Plaintiff should undergo two years private psychiatric treatment (comprising medication, psychotherapy and family therapy). Although it is debatable whether at that time Dr Wong’s prognosis of the Plaintiff’s condition was “favourable”, at the very least, Dr Wong took the view that psychotherapy could well be beneficial to the Plaintiff in terms of treating or improving his condition, and that without undergoing psychotherapy it would be quite difficult to make a definite assessment of the Plaintiff’s condition. I have outlined above what has happened after the recommendation of Dr Wong was made in the context of the Defendants’ allegation of the Plaintiff’s failure to mitigate. In my judgment, what has happened subsequently does not substantially change the need for psychotherapy treatment. 65.Firstly, whilst accepting fully what Dr Wong has said regarding the good quality treatment that has been rendered by the Day Hospital and how the same compares favourably to the out-patient system, Dr Wong accepted in evidence, in my reading of his evidence as a whole, that the psychotherapy offered by the Day Hospital to the Plaintiff for the past two years since 2002 was basically supportive in nature. As Mr Leung has argued, one cannot exclude, for there is a lack of material here, that the Day Hospital has attempted in-depth or intensive psychotherapy. I need not exclude the possibility. But there is no mention of any sustained attempt on that front. It is of course for the Plaintiff to prove his case. As I said, reading Dr Wong’s evidence as a whole, the more reasonable conclusion to be drawn from the available evidence is that the Day Hospital rendered supportive psychotherapy to the Plaintiff in the main. 66.Secondly, the failure of private psychiatric treatment by Dr Law is an insufficient reason for not trying psychotherapy again. Treatment of this type is, in my view (based on the evidence), very “personal” in the sense that a good repoire between doctor and patient has to be established before the treatment may be effective. It may take several attempts to find the “right” doctor. Moreover, the lack of success last time was at least in part contributed to by extraneous factors, such as the Plaintiff’s discharge from the Day Hospital so as to attend the private psychiatric treatment, the Plaintiff’s loss of social welfare allowance following his discharge, his inability to afford the costs of treatment, and so forth. All these extraneous factors could be dealt with or catered for without much difficulty if the Plaintiff should attempt intensive psychotherapy for the second time. Subjectively speaking, no doubt it is true that the experience with Dr Law was a bad one for the Plaintiff. He did not find the idea of leaving the Day Hospital and attending another private psychiatrist attractive at all. In fact, one of the treating doctors in the Day Hospital actually said there was no need for private psychiatric treatment. However, the point here is that there is no evidence nor is there any suggestion that the Plaintiff cannot, because of his psychological condition, attempt the intensive psychotherapy treatment suggested by Professor Lee. In other words, this is not a case where the Plaintiff, because of his psychological condition, simply could not be persuaded or made to undergo treatment without doing harm to him psychologically or otherwise medically. No such case has been pleaded or put forward. Needless to say, the Plaintiff has the duty to mitigate his loss. 67.Thirdly, whilst I have not forgotten Dr Wong’s evidence that unsuccessful intensive psychotherapy could be harmful, here I tend to agree with Professor Lee that it all depends on who is rendering the therapy and how it is rendered – in the words of Professor Lee, “harmful psychotherapy is bad psychotherapy”. 68.Fourthly, as mentioned above, all the extraneous factors that worked against Dr Law’s treatment (no blame on Dr Law whatsoever) could be removed without much difficulty. In particular, Professor Lee recommended that the Plaintiff should continue to attend the Day Hospital whilst receiving at the same time intensive psychotherapy as recommended by him. In that way, he would not lose the support of the Day Hospital that he has developed much confidence in, and he would not lose his social welfare allowance. Moreover, money would be no obstacle after the present litigation. 69.Finally, I have not forgotten that in one of the treating doctors’ reports, it was said that there was no need for private psychiatric treatment (Dr M L Chan’s report dated 9 February 2004). As I said, I accord much weight to what the treating doctors have said in this case. However, in relation to the suggestion in question, I doubt very much whether the treating doctor was simply contrasting psychiatric treatment in the public sector and that in the private sector, rather than comparing intensive psychotherapy with supportive psychotherapy. My reading of the report in question is that the doctor was simply saying that for the time being there was no need for the Plaintiff to switch to private psychiatric treatment, as he had been receiving quality treatment from the Day Hospital – something that Dr Wong has confirmed with much authority in evidence. However, in terms of intensive psychotherapy, I do not think the treating doctor was addressing his mind on this issue when he wrote the line in question. Nor was he expressing a final view on the matter (“at present stage”). In any event (even if I was wrong and Dr Chan was indeed talking about in-depth psychotherapy), his view only represents part of the entire medical picture that has been presented before this Court, although as I said a treating doctor’s view should not be lightly disregarded. 70.Based on the above specific matters and the general circumstances of the case, in terms of future treatment, I do find that the Plaintiff could and should undergo a continuous course of intensive or in-depth psychotherapy treatment – whether for a period of 9 months as suggested by Professor Lee or a period of two years as previously suggested by Dr Wong is debatable – see below. In my view, the same can be undertaken by the Plaintiff and should be undertaken by him on top of the treatment that he has been receiving from the Day Hospital (including the supportive psychotherapy treatment). 71.But my task here is not simply to determine whether the Plaintiff should undergo treatment. A more important and relevant matter is to what extent the Plaintiff’s condition is treatable, and ultimately the future employability of the Plaintiff (apart from the question of PSLA). But before I move on to deal with these matters, I should quickly dispose of a side point. I totally reject the argument raised by Miss Molloy that the Plaintiff has failed to mitigate his loss by refusing to agree to an eleventh hour application by the Defendants to adjourn the trial for the purpose of directing the Plaintiff to undergo the psychotherapy treatment suggested by Professor Lee. This point of mitigation has never been pleaded and must not be allowed to be run. In any event, there is no merit in the suggestion given the circumstances under which the application was made. It was the court which dismissed the application. 72.Returning to the question of the extent to which intensive psychotherapy would help, I do not share entirely the optimism of Professor Lee. It is true and I accept that the Plaintiff should not be lightly written off as a “lost cause”. I have seen the Plaintiff giving lengthy evidence in Court. I have closely observed his demeanour, his response, his ability to focus himself and concentrate during evidence, his memory ability and his emotions. I have borne in mind the results of the various tests that have been done to find out his working ability, the fact that he has managed to live alone for several years without much difficulty in terms of daily living, his ability to take care of his daughter at least to an extent that nothing serious happened to her whilst under his care, his trip to the Mainland together with his wife and son (although as I said I accept the wife’s evidence about the trip), his attempt to hide his true condition from his parents, his general interest in some activities in the Day Hospital, reading newspapers and so forth (of course counsel differed much on how all this should be interpreted – I have borne their respective arguments in mind). In my judgment, there have indeed been improvements in the Plaintiff’s condition since 2003, as was pointed out by Professor Lee in evidence, and I am far from satisfied that the Plaintiff’s condition is not capable of further improvement. In particular, I am far from satisfied, despite the very firm opinion expressed by Dr Wong both in his reports and in his oral evidence, that the successful removal of the psychosocial stressors – or at least some of them – would not lead to some further improvements in the condition of the Plaintiff. 73.Furthermore, I agree with Professor Lee that there is no or no clear-cut evidence before the Court that the Plaintiff has been told authoritatively by a neurologist whom he can trust that in fact physically and neurologically speaking, the Plaintiff has suffered nothing serious (apart from his post-concussional syndrome). That would, in my judgment, on the evidence – particularly the evidence of Professor Lee, have a substantively positive effect on improving the Plaintiff’s condition. Whether it is too late to turn back the clock and totally erase the effect of the “miscommunication” on the Plaintiff’s physical and neurological condition to the Plaintiff is debatable. But at the very least, I find that some improvement could be achieved once the message can get across authoritatively to the Plaintiff – and I find that there is a good chance of that being achieved if carefully and patiently attempted. 74.However, some improvements may or may not be sufficient in terms of employability. Here despite Professor Lee’s confidence, I am not at all convinced that the Plaintiff would be totally cured of his condition, or cured to such an extent that he could return to his pre-accident construction site job. In fact, on the evidence as a whole, I find against such a suggestion. 75.Firstly, just focussing on psychotherapy, I do not find sufficient evidence before me to enable me to come to that conclusion. That the Plaintiff’s condition can be improved does not necessarily mean that the condition can be improved to such an extent that the Plaintiff can resume his very demanding and potentially dangerous job in construction sites. 76.Secondly, one must not forget that the psychosocial ecological factors are merely part of the whole story. As I have already found above, an important aspect of the Plaintiff’s condition is biological in nature, which must be treated by medication. Dr Wong has given the firm view that the experience of the past few years has demonstrated quite conclusively that the Plaintiff’s case belongs to the 10% minority of cases where the patients do not respond well to medical treatment, so far as the biological aspects of their conditions are concerned. I am not sure if I can come to that firm conclusion here. The lack of any significant improvement in the condition of the Plaintiff in the past few years may well be explained by the simple fact that the Plaintiff has thus far not undergone the intensive psychotherapy treatment. As Professor Lee has repeatedly said in evidence, a patient’s psychosocial problems cannot be treated by drugs. That said, one cannot, on the other hand, exclude Dr Wong’s view as a possible explanation for the lack of major improvement in the Plaintiff’s condition in the past few years (disregarding the minor improvements that I have alluded to above for the time being). At present, it is simply impossible to conclude, one way or the other, that the Plaintiff belongs to the minority group of patients who are drug resistant. But one thing is clear: Dr Wong was of the view, and I agree with him, that the Plaintiff’s condition would require indefinite intake of medication to maintain it and prevent further deterioration. I do not see Professor Lee as challenging that view. It is common ground amongst the experts (although Professor Lee did not claim much expertise in the use of drugs) that the drugs that the Plaintiff has been taking and will continue to take in future carry with them side-effects which would affect a person’s employability and work ability. 77.Thirdly, not only psychosocial factors are merely part of the picture of MDD, in fact MDD itself is also only part of the picture of the Plaintiff’s condition as a whole. For both counsel agreed that apart from MDD, there is the post-concussional syndrome on top which is more a neurological condition than anything else. Dr Yu, a neurologist, has rendered his expert view on the condition of the Plaintiff in terms of post-concussional syndrome, and the effect of the same on the Plaintiff’s employability and work ability. Of course, he could not and did not comment on the psychological side of the Plaintiff’s condition. But any improvement to be made on the psychological front would still have to be considered against the entire picture comprising not only the psychological problems but also the post-concussional syndrome. 78.Apart from all this, I must take into account the personal particulars of the Plaintiff, his education, age, past working experience, skills and so forth in determining whether the Plaintiff can return to his pre-accident job or other jobs. Here, I must not be taken as having forgotten the various occupational therapist tests that the Plaintiff has undergone. In particular, I have borne in mind the occupational therapist’s report that has been placed before the Court and the recommendation made there. However, in my view, on the entirety of the evidence, the occupational therapist’s opinion, which again should be accorded much respect as the occupational therapist is amongst those treating the Plaintiff in the Day Hospital, must be viewed against the backdrop of the treatment that the Plaintiff had been receiving in the Day Hospital. The opinion was obviously given on the basic that the Plaintiff would continue to undergo the treating regime that he had been receiving since 2003 (after the unsuccessful private psychiatric treatment). Needless to say, no account has been taken of any possible future improvement in the Plaintiff’s condition following a successful course of intensive psychotherapy as has been recommended by Professor Lee. Furthermore, I have also taken into account what Professor Lee has said in relation to the result of the tests that have been administered and his analysis of the result, which I find persuasive. 79.As I said, having borne everything in mind including in particular the considerations mentioned above, I have come to the view and find as a fact that the Plaintiff’s condition would improve following the intensive psychotherapy treatment that he should undergo, but it would not improve to such an extent that he could return to his pre-accident job as a construction site worker. Furthermore, given the personal background of the Plaintiff, I further find that in those circumstances the Plaintiff’s choice of alternative jobs would be quite limited. Dr Yu has mentioned sedentary jobs in his report. The Plaintiff has put forward as an alternative argument that damages should be awarded to him (in relation to loss of future earnings) by reference to such sedentary jobs. On the evidence as a whole, I accept the Plaintiff’s argument insofar as it relates to sedentary jobs. 80.It is true that there was no specific evidence that the Plaintiff could only take up sedentary jobs. No such specific evidence, whether medical, factual or occupational, has been placed before the Court. But that does not mean that the Court cannot draw inferences from what has been placed before it, and what is generally known to the Court (insofar as it can take judicial notice of the same). I therefore reject the Defendants’ argument that there was no evidence to support a finding that the Plaintiff could only take up sedentary jobs. Notably the Defendants have not suggested, whether in cross-examination of the Plaintiff, in the evidence of their witnesses or in submission, some other jobs (carrying wages higher than that of sedentary jobs) that the Plaintiff could do, other than alleging that the Plaintiff could return to construction sites to work. Of course, I have not forgotten that the legal burden rests with the Plaintiff to prove his case. However, if the Defendants wished to say that the Plaintiff could do some other jobs (other than sedentary jobs), at least they should have laid some evidential foundation for their suggestion – not to mention any pleading requirement here. I have of course not forgotten that at some stage there was a suggestion that the Plaintiff could work as a driver. I have no difficulty whatsoever in rejecting the suggestion, based on my findings above. In my judgment, whatever improvement that could be achieved following the course of intensive psychotherapy, the Plaintiff would still be saddled with the residual effect of his depression, the post-concussional syndrome as well as the side-effects of the drugs that the Plaintiff will continue to take, and as a result he could not work as a driver, whether for the safety of his own or that of others. 81.Having made the above findings, I am now in a position to quantify the Plaintiff’s loss. Before I do so, out of abundance of caution and for the avoidance of doubt, I should specifically say that I have considered all the arguments of counsel and the evidence of the witnesses, although I do not find it necessary to refer to or even mention much of the same specifically in this judgment. I have in the above paragraphs sought to outline the more important considerations that I have borne in mind in reaching my factual findings. In order not to lengthen this judgment unnecessarily, I would continue to adopt the same approach in the quantification of the Plaintiff’s claim below. Special damages (a) Medical expenses 82.They comprised hospital expenses, herbalist fees, and the charges of Dr Law. I have borne in mind the respective arguments of the parties, particularly in relation to the herbalist fees and Dr Law’s charges. In my view, the claims are reasonable. I allow them in full, i.e. $15,924.00. (b) Travelling expenses 83.Again having borne in mind the arguments, I allow the claim in full, i.e. $8,493.00. (c) Tonic food 84.A sum of $20,000.00 is claimed. In my judgment, given the amount of evidence that has been adduced to support it, the claim is on the high side. Bearing in mind the evidence and the case law, I would allow a sum of $10,000.00. (d) Pre-trial loss of earnings 85.Given my above findings, the loss is a total one. I have factual evidence at trial regarding how much workers in comparable situations have been earning in the past few years. I have borne their evidence in mind. I have also got documentary evidence and statistics. I have also borne that in mind. Neither category of evidence is conclusive in the sense that the factual witnesses’ evidence was by definition restricted by their own experience and cannot be said to have been wholly representative of the general employment situation in Hong Kong; whereas the statistics were, again by definition, very general figures and hidden in the average figures would be much variation depending on individual circumstances. 86.In light of the state of evidence, some guesswork is inevitable here. Instead of differentiating the past loss into different periods or years (which was the approach of the Defendants, basing on the factual evidence that has been adduced), I would simply use ballpark and average figures for the whole period. I do this because as I said, the factual evidence on which the Defendants based their method of calculation is, by definition, of limited assistance, and an over-sophisticated method of computation would simply give a false sense of accuracy. 87.I find the daily rate put forward by the Plaintiff ($750.00) to be on the high side. Likewise, an average of 23 working days per month is in my view on the high side. Furthermore, I do not find it reliable to simply use the Plaintiff’s income and number of working days in a month immediately prior to the accident whilst in the employment of the Defendants to base my calculation, because according to evidence and general knowledge, casual workers like the Plaintiff could experience periods of unemployment after the completion of one project and before a new project could be found. 88.Doing the best I can, I would adopt an average daily rate of $600.00 and an average of 18 working days per month. The average (notional) monthly income was therefore $10,800.00. 89.For a pre-trial period of 54.5 months (up to late October 2004), the loss is:
General damages (e) Future medical expenses 90.The sum of $4,200.00 for neurological consultation is not in dispute. As for the rest, namely Day Hospital maintenance fees or alternatively neurological check up and family therapy, that would of course depend on, to some extent, the length of the intensive psychotherapy treatment. Here I tend to think that 9 months would be rather optimistic, and Dr Wong’s previous suggestion of 2 years would be nearer the mark. 91.As for the Day Hospital fees, according to my findings above, the Plaintiff should at a certain point of time in future be able to return to open employment and cease attendance at the Day Hospital. Thereafter, there should be a need for out-patient neurological and psychotherapy/family therapy consultations. 92.Having borne in mind the parties’ respective submissions and figures, and acknowledging that much guesswork is involved here, I would adopt a global figure of $100,000.00. (f) Post-trial loss of earnings 93.I must make a specific finding as to when the Plaintiff should be able to return to open employment in a sedentary job. Doing the best I can and based on the entire evidence before me, I am prepared to allow the Plaintiff 3 years to do so, particularly bearing in mind what I have already indicated above (that Dr Wong’s assessment of 2 years psychotherapy is nearer the mark) and the time the Plaintiff may reasonably need to find such a job after an absence of so many years from the labour market. 94.As for the average notional income from a sedentary job, I think the figure of $5,000.00 is reasonable on the evidence before me. 95.As for the multiplier, the Plaintiff is 43.5 years old. Bearing in mind the nature of the Plaintiff’s pre-accident job, I would adopt a multiplier of 11. 96.As for the average income of a comparable construction site worker in future, I would continue to use the figure of $600.00 per day but adjust upward the number of working days per month to 21, bearing in mind that the relatively low figure of 18 was the result of the poor economic situation in the past few years, and one cannot say that the good days will never return in the next 10 years or so. 97.The Plaintiff’s loss of future earnings is calculated as follows:
(g) Loss of earning capacity 98.A sum of $100,000.00 is claimed here. I think the amount is on the high side. 99.I have used a notional figure of $5,000.00 as the Plaintiff’s (notional) income in a sedentary job. According to case law, I do not think that that per se should prevent this Court from making an award for loss of earning capacity on top. 100.Bearing everything in mind, I am of the view that there is a real risk of the Plaintiff losing his (notional) sedentary job in the market (after his resumption of work) and suffering a disadvantage in the labour market in terms of finding a suitable replacement job and in terms of the extra time that he would need to find such a job when compared with a normal person. I am prepared to make an award here. 101.As regards the amount, I think an extra month of (notional) income per working year would be fair. In other words, the award is:
(h) PSLA 102.I have been referred to some authorities which act more as general reference points than anything else, for quite plainly the facts in those cases cited by counsel differ in varying aspects from the facts (as I have found them) in the present case. 103.Having borne the authorities as well as the submissions in mind, and basing my assessment on the facts as I have found them in the present case, I would award a sum of $500,000.00. This would place the Plaintiff’s case in the serious injury category. Summary 104.My assessment may be summarized as follows:
105.The above figures are liable to be reduced by 15% on account of contributory negligence. After the reduction, a sum of $155,500.00 should be deducted on account of employees’ compensation already received. The net award in the sum of $1,923,784.45 shall carry interest in that special damages shall attract interest at half the judgment rate from the date of accident (15 April 2000) to the date of judgment and thereafter at the judgment rate until full payment, and the award for PSLA shall carry interest at the rate of 2% per annum from the date of writ (7 April 2003) to the date of judgment. 106.I would leave it to the parties to work out the final figure and draw up the order and judgment for the Court’s approval. 107.I make no direction for the payment into court (for investment purpose) of the damages payable, as I am not certain about the jurisdiction and power of the court to receive the payment and invest the same on the Plaintiff’s behalf even with his consent, the Plaintiff not being a party under disability. 108.I make an order nisi that the costs of the action be paid by the Defendants to the Plaintiff, such costs are to be taxed if not agreed. I also order that the Plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91). The above costs order nisi shall become absolute unless either side should apply to vary the same within 14 days after this judgment is handed down. 109.It only remains for me to thank counsel for their extremely helpful assistance in the present case.
Mr Raymond Leung, instructed by Messrs Wilkinson & Grist, assigned by the Director of Legal Aid, for the Plaintiff Ms Joanna Molloy, instructed by Messrs Deacons, for the 1st and 2nd Defendants |
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