Chan Chung Sau v. Macrae Duncan James

HCPI 288/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 288/2003

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BETWEEN

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Coram: Deputy High Court Judge Carlson in Court

Dates of Hearing: 10, 11 & 12 November 2004

Date of Judgment (Handed Down): 20 December 2004

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J U D G M E N T

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Introduction

1.At about 8:35 am on the 12 January 2001, the Plaintiff was riding his motorcycle on Clear Water Bay Road travelling in the direction of Sai Kung when at its junction with Fei Ngo Road, he was collided into by a Saab motor-car driven by the Defendant who had driven into the junction from Fei Ngo Road.  As a result of the collision the Defendant sustained a number of injuries for which he now claims damages, under a number of heads, arising out of the Defendant’s negligence.  The Defendant, who was convicted of careless driving and driving with excess alcohol in respect of his driving on this occasion has admitted liability.  I am therefore only required to assess the damages that must be awarded to the Plaintiff. 

The Plaintiff

2.The Plaintiff who is 42 was aged 38 at the time of the accident.  He was then employed as a lifeguard by the Leisure and Cultural Services Department.  His employments in the past have always involved active outdoor work.  From 1984 to 1987 he was a civilian employee with the Royal Navy at HMS Tamar working as a seaman on fleet auxiliary vessels.  In February 1991, he joined the Royal Hong Kong Police (as it was then called) as a lifeguard, transferring from the police to the Regional Council in June 1992 in the same capacity.  The Regional Council changed its name to the Leisure and Cultural Services Department in January 2000.  On 27 July 2003, a Medical Board decided that by virtue of neck and wrist pain as well as psychological stress that he was no longer capable of performing his duties as a result which he was obliged to retire early which he did on 2 December 2003, since when he has been unemployed.  He has gained a number of awards and certificates relating to his work as a lifeguard including the Lifeguard Distinction Award in 1997 and the Bronze Cross in 2000, both of these being awarded to him by the Hong Kong Life Saving Society.  There is no doubt that he was a highly competent and experienced lifeguard who derived much pleasure and satisfaction from his work.

3.As to his personal life; he is a married man having married his wife in September 1998.  They have no children but he has a daughter by his previous wife and a son by a previous girlfriend.  Both children live with their mothers.  His wife is employed as a secretary in a trading company.

Previous accidents and injuries

4.A particular feature of this case is that the Plaintiff had been involved in two previous road traffic accidents, in 1994 and again in 1995, when he was riding his motorcycle and knocked down by a taxi and a mini-bus respectively.  In both cases he brought a claim against the other drivers for personal injury which were settled before trial.  In 1995 he suffered a broken-leg and developed psychological problems in the form of post-traumatic stress disorder which had subsided by the time of this accident in March 2001.  In this matter it is important not to confuse injuries caused by his previous misfortunes with what has happened to him as a result of this accident.

5.As will also become apparent he has developed ankylosing spondylitis which has caused him to have a painful neck and back.  This has happened spontaneously and is unrelated to this or any other of his previous accidents.  The symptoms caused by this condition are said to be significant by the Defendant because they hamper his ability to swim effectively as well as restricting his neck movements which hamper his life-saving capacity as well as his swimming technique.  Unsurprisingly, he therefore wishes to draw attention to this as a contributing factor to his having to retire early as well as to his complaint, which I will refer to more fully presently, that his right wrist injury and the resurgence of his psychological problems make it impossible for him to continue as a lifeguard and now will result in a very limited future earning capacity.  This head of damage comprises the most substantial part of the claim.

6.The approach to this case therefore is that he continues to have neck and back pain caused by ankylosing spondylitis which he deals with by taking pain-killers.  This is unrelated to the accident and these symptoms must be left out of account in my assessment.  He sustained a broken leg in 1995 from which he had recovered by the time of this accident as well as having recovered from the physical effects of the 1994 mishap.  The previous accidents, particularly the one in 1995, had caused post-traumatic stress disorder which had subsided by the time of this matter in March 2001, although he was still having follow-up treatment for this.  He had been able to return to work following 1995.  From this base I must now consider the effects of 2001.

The immediate effects and treatment for this accident

7.He was taken to the United Christian Hospital by ambulance and was conscious.  It might be observed here that although there had been a collision between his motorcycle and the Defendant’s car, it is fortunate that this was not a high-speed impact.  I get this from the physical injuries, which happily were slight and from the fact that upon impact the motorcycle keeled over but did not travel any distance which it would have done following a high-speed collision.  On arrival at hospital, the Plaintiff complained of pain over his back, neck, lower leg and right wrist.  X-ray examination showed that he had a fracture at T12/L1 vertebrae.  What was missed at the time, but picked up in 2002 at a private hospital, was a non-union fracture of the scaphoid bone of the right wrist which was clearly the result of the accident.  He is right-handed.  He was treated conservatively at hospital with a hard spinal corset and discharged after 7 days.  The fractures to the vertebrae healed satisfactorily so that the only persisting physical injury relates to his right wrist. 

The wrist

8.As to the wrist he had been recommended to undergo remedial fusion surgery and this had been arranged but he subsequently declined the operation because he was not psychologically prepared to go through with it.  When cross-examined by Mr Wright, for the Defendant, he said that although the pain had got worse, he declined to go through an operation.  The chances of success were not guaranteed.  In re-examination he changed his position, saying that he might have surgery if the pain became particularly severe.  The Defendant accepts that his refusal to undergo an operation is not an unreasonable one having regard to the uncertain prognosis.  One of Plaintiff’s orthopaedic experts, Sir Harry Fang, has said in his report that he would recommend a surgical reduction and a bone graft to the wrist at a cost of the $150,000.  He also says that the chances of a full recovery are not good because of osteo-arthritic changes and because it is difficult to fully reduce a fracture of the scaphoid bone.  The alternative would be an operation fusing the wrist which would, inevitably, result in much reduced movement of the wrist.  In the present circumstances, where the discomfort is bearable and the function acceptable, I am content to say that the decision by him not to have the operation is reasonable.  I will need to say little more about the wrist when I consider the video surveillance evidence that was put in by the Defendant.

The Psychological consequences of the accident 

9.This aspect of the case has really dominated the evidence in the trial.  The Plaintiff has relied on the evidence of Dr Alexander Lo, his treating psychologist who therefore is perhaps not best placed to give a truly dispassionate expect opinion on him, and the Defendant has Professor Peter Lee of Hong Kong University.  A worrying feature of this aspect of the evidence, which will have a real impact on quantum, is how diametrically opposed their views are.  I will of necessity have to make specific findings on which of these two experts I prefer.  Dr Lo is alarmist, in the sense that he considers the Plaintiff’s psychological symptoms to reveal a deep-seated chronic depression or dysthymia disorder such that an attempt to commit suicide might be made by the Plaintiff.  I’ll go through his evidence more fully in a moment but he says that the Plaintiff requires long terms treatment from him or somebody like him for something like the next four years and then he cannot really guarantee a successful outcome.  Professor Lee on the other hand, without being unsympathetic to the Plaintiff, who he did not find to be a malingerer, says that he really needs to snap out of his present mood and get on with life!  This he feels could be done in a matter of months with appropriate psychological counselling.  He is confident that suicidal ideations (to borrow the expression used during the evidence) can be safely discounted.  That brief summary is sufficient to indicate just how polarised these two experts are.  Both of them cannot be right.

The post-accident recovery until the Plaintiff’s enforced retirement in December 2003

10.It is helpful to refer to this period of time during which the Plaintiff was able to return to his work as a lifeguard, which he was pleased to do, culminating with the Medical Board’s decision to force him into “retirement” at the age of 41.  The evidence is that the Plaintiff was on the sick list for four months and 21 days until 1 August 2001.  Thereafter, he had intermittent short periods of sick leave in August/September 2002 and on odd days in January and March 2003.

11.He was examined by a Medical Board on 31 July 2001 and was adjudged by the Board to be fit to resume work on the expiry of his certificated sick leave on 1 August.  See report 110-112 Evidence Bundle.  The Board noted the injuries at page 110 and observed that there had been significant right wrist pain weakness as well as mild back pain.  The incapacity was said to have arisen as a result of, “right wrist pain and weakness”.  There was no mention of any psychological difficulties at that stage.  There was a further examination on 13 November 2001 (page 113) when he was also pronounced fit for his employment as a lifeguard.

12.The crucial report is at page 114 dated 29 July 2003 where the conclusion, by ticking the appropriate box on the form, was that to quote from the report; “The officer is incapable of performing the principal duties of his rank/post in his present state of health due to infirmity of mind/body (both)”.  Under the section “Prospect of Recovery” the tick comes in at “No definite recovery is expected”.  The Board based its opinion on its Findings which come under three sub-headings.  “The summary of the illness” is recorded as “Fracture of T12, L1.  The crack fracture of the left fibula (which did not relate to this accident) (my emphasis), right wrist injury, non-union of right scaphoid.  The type and degree of infirmity suffered is recorded as; “neck pain and wrist pain, psychological stress”.  It should be observed that the neck pain comes from the ankylosing spondylitis and is therefore unrelated to the accident and the psychological stress, which had not figured in the two earlier reports, is now recorded.  The incapacity which is said to come from “the infirmity” is recorded as; “wrist pain and psychological stress”.  On this material therefore he was invalided out of the service.

13.During this period he had been able to perform his lifeguard duties, although he failed a lifeguard swimming test which made him question his ability to do the job properly.  It is right to say that this test was much more rigorous then previous tests and three of ten lifeguard colleagues who took it also failed.  In their cases there was no suggestion that they were not up to continuing in the service.  The Plaintiff’s difficulty appears to have been the weakness in the right wrist which affected the force that he could apply to the swimming stroke as his arm moved through the water.  In any event, this failure of the test does not appear to have been directly causative of his enforced retirement.  I should also observe that on 18 August 2002, during the passage of a typhoon, the Plaintiff, who was on duty, slipped and fell over, again injurying his right wrist.  This injury was treated and described by the treating doctor as a “sprained right wrist”.  One can safely therefore discount this incident and wrist sprain.  It does not appear to have excacerbated the original injury to the right wrist.

14.That therefore was the situation up to the time of his retirement in December 2003.  Broadly speaking, a return to work after four months of sick leave, effective performance of his duties, subject to a failure of a rigorous swimming test in common with almost a third of his colleagues, an accidental fall and consequent wrist sprain culminating in July 2003 Medical Board which saw him invalided out of the service.

15.That brief summary has left out the psychological problems which, the Plaintiff says that he was undergoing.  It is to this that I must now turn to.

Psychological diagnosis, treatment and future prospects

16.A helpful way of addressing this is to compare and, perhaps more accurately expressed, contrast the reports of Dr Alexander Lo and Professor Lee and also refer back to, by way of testing their conclusions, the medical notes of the treating psychologists who were looking after the Plaintiff after the accident.

17.I take Dr Alexander Lo’s opinion first.  The basic situation is that the Plaintiff had attended public hospitals since 2002 for treatment by the psychiatric and psychological services.  He has been there monthly, comprising some 20 consultations.  He has also been counselled by Dr Lo on 20 occasions.  Dr Lo first saw the Plaintiff on 2 August 2002.  His diagnosis, having administered a battery of tests is post-traumatic stress disorder and dysthymia.  He suggests that since he first saw him, the Plaintiff’s condition is what it was when he originally attended him, if not worse.  Dr Lo conclusion is that: -

“In general, Sir (sic) Chan has very poor life quality and suffered from multiple physical and mental traumas.  As a result, his working abilities, psychosocial, educational and vocational interests are very limited.  In terms of his affects (emotional status) he is at risk of giving up his future (career and educational).  Both of his post-traumatic stress and depression should be alleviated and minimised through long term phychosocial and vocational counselling.  In terms of his vocational abilities, his mechanical and physical abilities were all affected tremendously and permanently; and it is dangerous for him to work further as a life guard.  It is consistent to all of the above medical reports that his improvement should be limited.  In terms of life quality, his psychological stress, physiological and physical pain, muscular upset, self esteem and all of the above-mentioned symptomatic suffers could all be classified as very poor life quality.”

From this deeply disheartening assessment, Dr Lo recommends long term therapy comprising monthly psychiatric treatment and medication for four years costing $120,000 added to which there should be weekly sessions for “on going assessment for his suicidal ideas and other psychological problems for at least four years, the same may be on-going until suicidal symptoms are subsided.”  The total cost is expected to be over $416,000. 

18.Dr Lo’s greatest concerns for the Plaintiff are his suicidal “ideations” which he fears he may put into practice.  I should observe that the note from the public hospitals have strongly and repeatedly contradicted that conclusion.  In January 2001, before the accident, (page 115 of the medical records) the doctor at the Yung Fung Shee Psychiatric Centre notes that the Plaintiff was not depressed.  In July 2001 his “mood (was) stable” and he was “not depressed”.  In July 2002 he had a “stable mood”, and no “suicidal idea”.  He had a good appetite and he slept well.  In September 2002, there was no “suicidal idea” and he slept well.  In December 2002, he was “not suicidal”.  In March and in June 2003, there were no “suicidal ideas” (page 134).  Similarly, in September and October 2003 (page 139).  This was also the position on the 18 December 2003; “No suicidal idea at the moment”, “calm”, “mood stable”, “not suicidal”.  Ditto – page 144 on 24 February 2004.

19.Professor Lee’s opinion is that the Plaintiff was vulnerable to a recurrence of post-traumatic stress disorder syndrome following his previous accidents from which he had recovered quite well.  This had flared up again but the Plaintiff recovered well enough to get back to work.  The unresolved wrist pain depressed him further due to what he considered was the uncaring attitude of the doctors.  This resulted in low self-esteem and a pessimism about the future.  Clearly the enforced retirement has come as a large blow, to a hitherto active man at the height of his powers.  Professor Lee describes the present position as a mild intensity adjustment disorder with depressed mood and feelings of insecurity.  This has improved and he had expressed the idea of resuming work and, for example, “opening a bakery and to resume diving and snorkelling”.  Professor Lee suggests a short intensive course of 12 sessions of psychological treatment to help him to:

“regain self confidence

reduce overall negative self judgment

resume a more active, structured and meaningful daily routine

manage periodic dysphoria (mental unease) and insecurity

work more actively on plans to improve daily life, career and quality of life.”

The Professor considers that on psychological considerations the Plaintiff should have no difficulty in taking on any work that he may be interested in doing.  The fact that he would be working would of itself restore morale, self-esteem, self confidence and therefore the quality of his life.  This treatment would cost $18,000 in the private sector.  Professor Lee now says that suicidal thoughts can be discounted and that the Plaintiff is free of any significant post-traumatic stress symptoms.

20.Orthopaedically, the wrist injury does not appear to present any great problem.  One only needs to view the surveillance video tape to see that the Plaintiff is unaffected by the wrist injury.  He gives all the appearance of being “right as rain”.  His right hand motor functions appear to be excellent.  On the tape he is seen handling small change in his right hand perfectly well and from his general demeanour he appears pain free and well adjusted to the ordinary demands of daily life.

Conclusion

21.I am sorry to say that in my judgment, Dr Lo’s assessments are right off the board to the extent of being a hindrance to this man’s recovery.  I appreciate that this is a strong thing to say of a medical expert but it needs to be said in this case.  All the government psychologists reports, and this is what the Plaintiff would have told them, show that he had no suicidal ideas.  Professor Lee backs up all of this.  Dr Lo has got it into his head and, I fear put it into the Plaintiff’s head that he is not well, that he might try to commit suicide and that he needs to go through a long and expensive ($416,000) treatment.  It is this that is a danger to the Plaintiff’s well-being and the Plaintiff must realize that for my part I completely reject that the assessment of his situation.  This is a perfectly well man provided he puts his mind to it and gets on with life.  It is most unfortunate that the Medical Board felt able to retire him.  He is now 42 – in the prime of life with everything to look forward to.  As I will demonstrate in a moment, my assessment of his damages will be based on that optimistic assessment which in my judgment sits with a true view of all the evidence in the case.  Professor Lee is resoundingly correct and Dr Lo completely wide of the mark.

The award

Pain, suffering and loss of amenity

22.It is simply not right to say this is a “serious category case” which is described in Lee Ting Lam’s case [1980] HKLR 657 as;

“Injury leaving a disability which mars general activities and enjoyment of life but allows reasonable mobility to victim, e.g. loss of limb replaced by satisfactory artificial device or bad fractures leaving recurrent pain.”

Mr Mui, for the Plaintiff, says that I should award $500,000 under this head.  The wrist is effectively fully functional save when pushed to extremes.  I assess this on the basis that there will never be a full recovery and that he may have to have a further operation (although this would appear to be highly unlikely) if the pain gets worse.  At present the pain is manageable.  One must add to this the psychological problems as analysed by Professor Lee and, not by Dr Lo, where he is expected to make a full recovery although I suspect remain vulnerable to these sort of problems in future if he were to undergo some unexpected traumatic incident.  I assess this head of damages at $300,000.

Past loss of earnings

23.The position is not as clear as it ought to be given that the Plaintiff was employed by the Civil Service and therefore his pay at $13,745 a month was certain and that under the terms of his employment he was entitled to 90 days sick leave and thereafter at half pay.  Mr Mui calculates this at $58,623.83 based on his calculation which appears on page 2 of his summary on quantum (part of his final written submission).  Mr Wright, says it is about $32,000, really doing his best by trying to piece together the various parts of the evidence.  This is really most unsatisfactory from the courts point of view and I am left with the sense that Mr Mui is too high and Mr Wright is too low?  Doing my best I propose to award the Plaintiff $45,000.  Mr Mui really has not given enough credit for the full pay entitlement during the Plaintiff’s time off and so $58,623 is too high.  If anything, the award that I have made may be a little too generous but that is the best that I can do in the circumstances.

Future loss of earnings

24.The dispute here is quite irreconcilable.  Mr Mui says $1.623 million being a total loss with a multipier of 10, which in my view is hopelessly and unhelpfully ambitious as a claim and Mr Wright says it is NIL because he should get back to speed and do whatever job he puts his mind to.  To make matters worse, Mr Mui has an even more ambitious calculation set out in the Plaintiff’s 4^th Supplemental Witness Statement page 94-23 (Witness Statements) of $2.839 million.  I get no help whatsoever from that.

25.In my judgment, the Plaintiff has no reason not to be back at work now.  He has not been helped by Dr Lo’s pessimism and I daresay this has held him back.  There will be an element of loss of earnings but I am quite unable to assess this on a multiplier/multiplicand basis.  I am going to give a global figure to reflect my overall assessment of the situation.  The Plaintiff says that he will never work.  This is plain nonsense.  Nevertheless, one has to address the situation that the Medical Board has put him out of work and he must now get back into the labour market, in perhaps a less well paid job, given the situation that in lower paid occupations, Civil Service pay is probably higher than in the private sector.  I am going to award him the sum of $200,000 to reflect that.

26.There is also a Smith v Manchester Corporation type of claim for loss of future earning capacity.  If he were to lose his employment, the Plaintiff would, with a slightly weakened right wrist, be at a disadvantage in getting back into the labour market.  I propose to recognize this by a further award of $100,000.

Future medical treatment

27.I have rejected Dr Lo and his $416,000.  Professor Lee says $18,000.  I ought to give some leeway and I will therefore award $25,000.  I have also considered the claim for $150,000 for future wrist surgery but in view of the Plaintiff’s evidence, I have decided that it is more likely than not that he will not undergo this surgery which is an entirely reasonable approach by him.  In those circumstances there will be no further award in respect of this claim.

Special damages

28.I propose to allow all of these as pleaded in the Plaintiff’s revised statement of damages at $54,943.50.  All these appear to be entirely reasonable.

Summary

General Damages

Pain and Suffering	$300,000.00
Future Loss of Earnings	200,000.00
Smith v Manchester Corporation	100,000.00
Future Medical Expenses	125,000.00
Special Damages (as in revised Statement of Damages)	154,943.50
Pre-trial Loss of Earnings	145,000.00
Total	724,943.50
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Interest

29.2% on General Damages from the date of the writ until judgment and on Special Damages, at half the judgment rate from the date of accident until judgment and thereafter at the judgment rate until payment.

Costs

30.These will be to the Plaintiff on the District Court scale, having regard to the size of the award, on a party and party basis to be taxed if not agreed with legal aid taxation, if that is appropriate.  This order must be an order nisi in the usual way.

Mr Louie Mui, instructed by Messrs Lam, Lee & Lai, for the Plaintiff

Mr John Wright, instructed by Messrs Yip & Partners, for the Defendant