Yeung Tai Hung v. Hong Kong Baptist Hospital Au Shue Hung Health Centre

HCPI 686/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 686 OF 2004

-------------------------

BETWEEN

-------------------------

Before : Hon Suffiad J in Court

Dates of Hearing : 12 – 16 June 2006

Date of Judgment : 20 July 2006

-----------------------

J U D G M E N T

-----------------------

1.The plaintiff brings this claim against the defendant, his former employer, for damages for personal injuries sustained by him in an accident in the course of his employment on 4 December 2001 when he slipped and fell in the kitchen where he worked thereby sustaining injuries to his lower back.

2.It is the plaintiff's case that he was employed by the defendant as an assistant chef at the material time of this accident.

3.On the morning of 4 December 2001, he started work at about 7.30 a.m. in the kitchen of the canteen at the defendant's premises being Hong Kong Baptist Hospital Au Shue Hung Health Centre at No. 330 Junction Road, Kowloon, Hong Kong (“the Centre”).

4.At about 8.40 a.m. the plaintiff was carrying a box of frozen meat from the refrigerator to the water tank for defrosting.  As he was carrying the box of frozen meat, he slipped and fell because the kitchen floor was wet and slippery with oil due to the fact that the oil filter tank had clogged up and oil was overflowing from it onto the kitchen floor.

5.The plaintiff brings the claim against the defendant on the basis of the defendant's negligence, for breach of duty of employer and on the basis of breach of common duty of care as an occupier of the kitchen.

6.At the start of the trial, I was informed by the parties that liability is no longer in dispute by the defendant and admitted by them.  However, the issue of contributory negligence was still in dispute.

7.In the light of such admission by the defendant, it would not be necessary for me to go into the question of liability, but to move immediately to consider the question of contributory negligence and the factual disputes related to that issue.

Contributory negligence

8.The pleaded basis of the contributory negligence alleged by the defendant against the plaintiff is that the plaintiff failed to take reasonable care of himself and his own safety when working in the kitchen of the Centre by failing to clean the kitchen to ensure that the floor was not slippery, and failing to wear safety shoes which could avoid slipping.

9.The evidence from the plaintiff was that the oil tank filter in the kitchen of the Centre clogged up from time to time, though not always.

10.When that happened, a report or complaint would be made to the supervisor in charge of the kitchen and the defendant would send along personnel from the Engineering Department of the Baptist Hospital to repair the oil filter tank.

11.However, on the day in question, when the accident happened at about 8.40 a.m., the oil filter tank had at that time just clogged up unknown to the plaintiff, and he had no opportunity to make a report or complain of the matter to his superior.  In any event, even if he had known of the clogging up at the time, the office would not have been opened yet to receive the complaint or to pass on the information for personnel from the Engineering Department to come along to carry out the necessary repair.

12.It was also the evidence of the plaintiff that he only came to know of grease on the floor after he fell down, when his hands felt oil and grease on the floor.  It was only then that he looked to the oil filter tank (also referred to as the grease trap) and saw that some water and oil was seeping out from it due to the clogging.

13.As for the cleaning of the kitchen floor, it was the evidence of the plaintiff that he was not responsible for cleaning the kitchen since he was employed as an assistant chef.  The responsibility for cleaning the kitchen fell onto two female employees who, apart from cleaning work, were also responsible for the delivery work.

14.As for non-slippery or safety shoes, the evidence of the plaintiff was that he was wearing his own shoes at the time of the accident.  The shoes that he wore were flat plastic soled shoes, much like the ones worn by other workers of the defendant in the kitchen of the Centre.

15.The plaintiff also gave evidence that he had previously requested the defendant to provide non-slip shoes for him to carry out his work at the kitchen of the Centre, but that request was not complied with by the defendant.

16.In dealing with the issue of contributory negligence, the submission made by counsel for the defendant in final submission was that the issue of contributory negligence was put on the basis that the plaintiff should have known of the floor being slippery and wet before the accident, but that the plaintiff failed to take reasonable steps to ensure his own safety.

17.Counsel for the defendant expressly abandoned the point that the plaintiff should have cleaned the floor by himself, being the assistant chef.  Quite properly that point was abandoned because the evidence in this case all pointed to the fact that the plaintiff, being the assistant chef, his duty in the kitchen went towards preparing the food while the cleaning of the floor was left to the two female workers employed in the kitchen.  This evidence came from both the plaintiff and the witness called by the plaintiff, Fan Shuet Ping, one of the female workers in the kitchen.

18.The defendant also effectively abandoned the point as to the proper footwear of the plaintiff.

19.Ultimately, the only point taken by the defendant in respect of contributory negligence is that the plaintiff, when his evidence was that he realized the floor to have been wet when he started work at about 7.35 a.m. on the morning of the accident, ought to have instructed one of the female workers to have dried the wet floor.  This the plaintiff admitted that he did not do.  The reason given by the plaintiff was that the morning was the busiest time for all the workers in the kitchen, having to prepare over 250 meals before noon time.

20.In deciding on the question of contributory negligence, I take note of the following matters given in evidence by the plaintiff.

21.Firstly, the plaintiff knew that the floor was wet when he started work that morning, but that he did not know of the presence of oil or grease on the floor until after he had slipped and fallen.  In the absence of any evidence to contradict this evidence of the plaintiff, I am prepared to accept that evidence given by the plaintiff.

22.In making his final submission on contributory negligence, counsel for the defendant did not make a distinction between the knowledge of the plaintiff as to the floor being wet (which the plaintiff admitted to have known when he started work) and knowledge of the presence of oil or grease on the wet floor (which the plaintiff says he only knew of after he had slipped and fell).

23.In my view, the knowledge of the plaintiff as to the difference in the condition of the floor is crucial to deciding the issue of contributory negligence.

24.The sum total therefore of the evidence must be that the plaintiff, when he admitted that he did not ask the female workers to dry the floor knowing that the floor was wet was on the basis that at that time, he had no knowledge of the presence of oil or grease on the floor.

25.Without the knowledge of oil or grease on the floor, but only knowing that it was wet, the plaintiff was prepared to carry on working because the morning was the busiest time of the day for all the workers in the kitchen.

26.It would also follow that if the floor was only wet with water, but not having oil or grease, the risk of slipping and falling is greatly reduced.

27.There is also no evidence that the plaintiff was running around in the kitchen at speed.  That would be unlikely since the photographs show the kitchen to be a rather small area and somewhat confined and limited spacewise.

28.I therefore find that the plaintiff was getting on with the work as best he could be given that busy time of the day in the morning.  I further find that it was not unreasonable for the plaintiff not to have asked the female worker to have dried the floor when he did not know of the presence of oil or grease until after the accident.

29.Ultimately, contributory negligence is dependent on some fault of the plaintiff.  Given all the circumstances of this case, I am unable to find that the plaintiff was at fault even though he had failed to ask someone to dry a wet kitchen floor, but without the further knowledge that there was oil or grease on the wet floor.  Had that been the case, my decision on the issue of contributory negligence may well have been different.

30.Accordingly, I do not find, on the evidence in this case, that the plaintiff was contributorily negligent.

QUANTUM

Injuries and treatment

31.As a result of the accident of slipping and falling on his back, the plaintiff felt immediate pain to his lower back and bilateral lower limb numbness.

32.After the accident, the plaintiff consulted the Orthopaedic and Traumatology Department of the Baptist Hospital.  He was given analgesics and sick leave was granted.

33.Magnetic Resonance Imaging (MRI) taken in the latter part of December 2001 by the Baptist Hospital showed early lumbar spondylosis but no significant disc prolapse.

34.Regular follow up at the Baptist Hospital was arranged for him and regular physiotherapy given but the lower back symptoms persisted.

35.On 8 March 2002 tenderness at the right paraspinal region was detected and there was decreased light touch sensation of the right lower limb.  Muscle power was however found to be normal. Physiotherapy treatment continued.

36.In the first half of 2002, the plaintiff attended Accident and Emergency Department of the Queen Mary Hospital on several occasions because of the persistent pain to his lower back.

37.In July 2002, he was referred to both the Sham Shui Po Occupational Health Clinic as well as to the Orthopaedic and Traumatology department of Queen Mary Hospital for the persistent back pain.

38.In November 2002 an MRI taken at the Duchess of Kent Children Hospital (DKCH) showed degenerative changes particularly to L4/5 and L5/S1.  He was then admitted to DKCH to undergo a three-month Special Rehabilitation Programme from November 2002 to March 2003.

39.Regular physiotherapy treatment was finally stopped in October 2004 because of static progress.

40.He is still attending follow up at the DKCH and also the Kwun Tong Occupational Health Clinic presently.

41.The plaintiff was examined by the defendant's orthopaedic expert in February 2004 and by the plaintiff's own orthopaedic expert, Dr Wong See Hoi in November 2004.

42.Both experts are agreed that the plaintiff suffered a contusion and soft tissue injury to his back from the accident.

43.Both experts are also agreed that the plaintiff had pre-existing degeneration of his lumbar spine prior to the accident on 4 December 2001 and therefore such degeneration was unrelated to the accident.

44.Both experts are also agreed that there is no bony injury to the plaintiff's lumbar spine from the accident and that there is no nerve root compression.

45.They are also agreed that the numbness to the lower limbs alleged by the plaintiff is not organic nor can it be explained neurologically.

46.Where the two experts differ was that Dr Wong was of the opinion that the pre-existing degeneration to the plaintiff's lumbar spine was asymptomatic prior to the accident, but was aggravated by the slip and fall sustained in the accident on 4 December 2001 thereby contributing to the plaintiff's present complaint of his persistent back pain.

47.Dr Wong was further of the opinion that the main cause of the plaintiff's present back pain was the accident itself for the reason that the degeneration of the lumbar spine may well have remained asymptomatic had it not been for the accident on 4 December 2001.

48.On the other hand, Dr Lam took the view that the main cause of the plaintiff's present back problem was his pre-existing degeneration.  Relying on the medical notes of Baptist Hospital relating to the plaintiff, Dr Lam was further of the view that the pre-existing degeneration of the plaintiff had not been asymptomatic but had manifested itself in several episodes of back pain as recorded in the medical notes of the Baptist Hospital prior to the accident on 4 December 2001.

49.In light of such differences between the two orthopaedic experts, Dr Wong assessed the plaintiff to have 8% impairment of the whole person due to the accident in December 2001 whereas Dr Lam assessed the plaintiff's impairment at being 5% of the whole person but only 2% of that could be attributable to the accident in December 2001.

Psychiatric/psychological condition

50.During the time the plaintiff was in the DKCH between November 2002 and March 2003, the plaintiff was seen by a clinical psychologist and was observed to have worries over his ability of returning to his former job as well as marital difficulties resulting from his pain.

51.According to the plaintiff himself, it was only some time in 2003, after his discharge from the DKCH, that he began to experience psychological and/or mood symptoms.  For that he was referred to the psychiatry department of QMH on 15 December 2003 and was diagnosed as having severe depressive disorder.

52.The plaintiff was in fact admitted into the psychiatric department of QMH for two days in February 2004 but discharged himself against medical advice.

53.His psychological and/or psychiatric condition took a turn for the worse when it was suggested to him to have further operative treatment for his lower back problem in April 2004 resulting in him worrying about the operation result.

54.In respect of his psychiatric condition, the plaintiff was examined by the defendant's psychiatric expert, Dr Chung See Yuen in July 2004 and by the plaintiff's own psychiatric expert, Dr K. Singer in December the same year.

55.Both experts are agreed that the plaintiff suffered from an Adjustment disorder with depressive mood.

56.However, in their assessment of that condition of the plaintiff, Dr Singer was of the opinion that the plaintiff's condition was moderate while Dr Chung took the view that the condition was only mild.

57.One further area which they differ is that Dr Singer believed that the plaintiff's allegation of numbness in his lower limbs could be explained as a conversion disorder, while Dr Chung took the view that such allegation of the plaintiff could not be a conversion disorder because patients with such a disorder usually have difficulty expressing their emotional problems in psychological terms but not so the plaintiff in this case, the implication being it was likely an exaggeration or malingering by the plaintiff.

Pain, suffering and loss of amenities

58.In so far as the differences in opinion expressed by the two orthopaedic experts, Dr Wong See Hoi and Dr Lam Kwong Chin are concerned, I have no hesitation in accepting the opinion of Dr Wong for the plaintiff.

59.The reason for that is that it is quite clear from the medical notes of the Baptist Hospital, in particular the diagram as to the site of the tenderness contained in the notes, that prior to 4 December 2001, the “back pain” of the plaintiff was at a site much higher at his right back, at about the level of his scapula, while the area of the plaintiff's tenderness resulting from his accident on 4 December 2001, is denoted in those diagrams to be at his lower back, in the region of his lumbar spine.

60.It is also obvious from the medical notes of Baptist Hospital that the earlier ‘back pain' suffered by the plaintiff was much less debilitating and required only very short periods of sick leave, usually a day or two.

61.The plaintiff's evidence of the earlier back pain, which he described as back strain of the muscles in his upper right back, is consistent with the medical notes of Baptist Hospital in so far as it relates to the earlier episodes of back pain before the accident on 4 December 2001.  I have no hesitation in accepting that evidence of the plaintiff.

62.The totality of all this evidence is that it lends support to the opinion expressed by Dr Wong.

63.On the other hand, when the diagrams showing the earlier back pain of the plaintiff before 4 December 2001 were pointed out to Dr Lam in cross examination by counsel for the plaintiff, the best answer which Dr Lam could give was that all those areas of tenderness, whether shown to be in the upper right back of the plaintiff or the lower back, relates to the same paraspinal muscles.

64.Whilst that may be so medically, here we are concerned with causation, in particular causation from the pre-existing degeneration in the lumbar spine.  Nothing in the medical evidence even remotely suggested that the earlier episodes of back pain of the plaintiff had anything to do with his lumbar spine, let alone the degeneration of the lumbar spine.

65.For these reasons, I prefer the opinion of Dr Wong where it differs with that of Dr Lam.

66.As for the psychiatric experts, they are agreed on the main issue which is that the plaintiff is suffering from an adjustment disorder with depressive mood which is a reaction to stresses being the result or aftermath of his accident and which will dissipate or disappear once those stresses are removed, as for instance this litigation.

67.Once that premise is reached, the source of the numbness to his lower limbs pales in significance.  Moreover, the impact of that numbness must be greatly overshadowed by the persistent back pain which he complains of.

68.Indeed, it is the plaintiff's own evidence that the numbness affects his right leg much more than it does his left, but even so, is a very minor discomfort where he is concerned and of not great importance.

69.Given that, the only issue of some relevance to my determination of this matter is really whether the alleged numbness is some form of exaggeration or malingering by the plaintiff.

70.In that respect, I take into account the fact that the complaint of numbness to his legs have been made for a very long time, as early as 20 December 2001, being just about two weeks after the accident.  Since that time, the plaintiff had continuously complained of numbness in his legs variously, sometimes the right, sometimes the left and at other times both legs.

71.I also take into account the numbness complained of to his lower limbs is comparatively a very much less serious affliction than the persistent back pain to his lower back.  Moreover, the plaintiff himself accepts that it is a minor complaint or disability.

72.For these reasons, I am prepared to accept that the complaint by the plaintiff of numbness in his lower limbs are neither an exaggeration nor malingering on his part, whether or not it can be explained orthopaedically, neurologically or psychiatrically.

73.I assess the amount to be awarded to this plaintiff given all the circumstances of this case as I have found to be $300,000 for pain suffering and loss of amenities.

Loss of earnings (pre-trial)

74.There is no dispute that the plaintiff's pre-accident earnings came to $16,509 per month as an assistant chef employed by the defendant.

75.It is also not in dispute that the plaintiff's employment with the defendant would have been terminated at the end of April 2002 even if the accident had not happened because the canteen operated by the defendant was to be closed at that time and the plaintiff had already been notified of the termination even before his accident.

76.It is also common ground that the plaintiff had been fully paid his salary by the defendant up to the end of April 2002, and is agreed that the relevant amount of his salary from the time of this accident to the end of April 2002 received by him came to $62,276.  (This amount will have to be revisited when I come to deal with the question of deduction of ECC payment since the fact that this amount had been paid to and received by the plaintiff had already been taken into account in calculating the ECC amount stated to have been paid to the plaintiff.)

77.It is also not in dispute between the parties that the plaintiff is entitled to full loss of earnings from May 2002 to June 2004 (being 26 months), and thereafter to partial loss of earnings up till trial (24 months).

78.For the first 26 months of the pre-trial period, had the plaintiff left his pre-accident employment with the defendant there is no guarantee that he would be able to secure another job which paid the same as his pre-accident earnings.

79.Furthermore, the plaintiff was at the time of the accident 55 years old and, being at that stage of his life when he intended to spend more time with his family and less time at work.  That was the plaintiff's own evidence.

80.The defendant has also alluded to government employment statistics which showed that the average wage for an assistant cook at that time to be around $12,000.

81.Given the uncertainty as to what salary the plaintiff would have earned had he sought some other alternative employment after finishing with the defendant, I am prepared to take the mean between $12,000 and the plaintiff's pre-accident earnings with the defendant for the pre-trial period.  That gives $14,255.

82.For the first 26 months, full loss of earnings comes to $370,630.

83.As for the remaining 24 months, the main dispute is to what the plaintiff would have been able to earn from alternative employment given his residual condition resulting from his injuries.  The plaintiff suggests $5,000.  On the other hand, the defendant, relying on government wage statistics submits $8,000 as being what the plaintiff could make from alternative employment of a lighter nature.

84.Apart from the dispute as to what the plaintiff could earn from alternative employment, there is another matter which I need to take into account.  There is a Work Rehabilitation Progress Report from the Occupational Therapy Department of the David Trench Rehabilitation Centre dated 24 June 2004 stating that the plaintiff did not meet the job demand of his pre-accident job as an assistant chef due to the condition he was then in.  However, one of the job tasks which the plaintiff failed to meet in that report was the “cutting of defrosted meat” and there can be no doubt from that report that the plaintiff failed to meet that job task not due to any residual disability from the accident on 4 December 2001, but due to persistent numbness in his upper limb.

85.The numbness in his upper limb is wholly unrelated to his accident on 4 December 2001.  Rather the plaintiff had been diagnosed to have cervical spondylosis as early as 2000 and the symptom of such cervical spondylosis was stated to be numbness to his bilateral upper limbs.

86.In the light of this evidence, the defendant submits that it may be that the plaintiff could not have carried on working as an assistant chef or cook by June 2004 even if the accident had not happened.

87.I do not accept that suggestion of the defendant because of the three critical job tasks stated in the Work Rehabilitation Progress Report, the cutting of defrosted meat is only one such job task not met by the plaintiff.

88.I am, however, prepared to accept that the further difficulty of the plaintiff meeting the demands of that job task which was not due to the accident but to his earlier cervical spondylosis would mean that the plaintiff's earnings as an assistant cook from June 2004 onwards, had the accident not happened, may well have been less than what it was before June 2004.  The effect of that would be a reduced partial loss of earnings for the plaintiff in the latter 24 months of the pre-trial period.

89.Turning now to deal with the earnings from alternative employment by the plaintiff in his present condition, the evidence from the plaintiff was that he was offered work as a part time cooking instructor at the Hong Kong Electric Company Ltd some time in July/August 2004.  Initially he had accepted the offer, but ultimately turned it down.  The offered remuneration to him was $480 per session of two hours duration and he was required to teach two to three sessions per week.  On the basis of three sessions a week, the monthly net earnings would have come to $5,760 and on the basis of two sessions a week it would be $4,800.

90.Bearing in mind that this was only part time work, it would be likely that he would have been able to earn a bit more, perhaps as high as $7,000.  The figure of $7,000 would also be in line with the government statistics relied on by the defendant which indicates that somewhat lighter manual work such as watchman, storekeeper or messenger would earn between $6,000 and $8,000.

91.Based on such evidence, I would accept $7,000 as being what the plaintiff could earn by way of alternative employment from June 2004 onwards.  Therefore his partial loss of earnings per month for the latter 24 months would be $14,255 - $7000 giving $7,255 if no effect had been given to what has been stated in the Work Rehabilitation Progress Report.

92.In giving the necessary and proper effect to that Work Rehabilitation Progress Report, the plaintiff's partial loss should be reduced to $5,000 per month for the latter 24 months.  This gives $120,000.

93.The total loss of earnings pre-trial therefore comes to $370,630 + $120,000 giving $490,630.

94.The loss of MPF relating thereto comes to 5% of the above figure giving $24,531.

Future loss of earnings

95.For future loss of earnings, the plaintiff suggests a multiplier of 2 in view of the age of the plaintiff.

96.The multiplier of 2 is accepted by the defendant in principle on the basis of the plaintiff's age and the nature of his work.

97.However, the defendant further takes the point that by reason of his pre-existing degeneration to the plaintiff's lumbar spine, the multiplier of 2 should be reduced to 1 in calculating the award of future loss of earnings.

98.I do not accept that suggestion of the defendant for the simple reason that I have accepted the opinion given by Dr Wong, the orthopaedic expert of the plaintiff, that the plaintiff's degenerative lumbar spine may well have remained asymptomatic had it not been for the accident on 4 December 2001.  Quite possibly therefore the plaintiff could well have ended his working life without any symptoms to his lumbar spine even though there was degeneration.

99.Accordingly, I will use 2 as the multiplier.  For the multiplicand I will continue to use the figure used for the partial loss of earnings in the latter 24 months of the pre-trial period.

100.The future loss of earnings is assessed at $120,000 and the loss of MPF relating thereto is 5% of that figure which gives $6,000.

Loss of earnings capacity

101.The plaintiff claims $50,000 for this head of damage.

102.The plaintiff is now 59 years old, and must be in the twilight of his working life.

103.At such an age, if in the future he should lose his job (the alternative employment) for whatever reason, chances are that the plaintiff will call it a day and probably not bother to try to find some other form of work.

104.There will therefore be no award for this head of claim.

Special damages

105.Hospital and medical expenses are agreed at $30,459.

106.Travelling expenses are agreed at $30,000.

107.Medical appliances expenses are agreed at $820.

108.Bonesetter's fees claimed at $10,000; nourishing/tonic food claimed at $20,000 and the wife's loss of earnings claimed in the amount of $231,250 are all disputed.

109.In so far as the bonesetter's fees are concerned, there are no particulars given and no documentary support for it.  Nothing in the medical evidence suggests that the plaintiff's consulting a bonesetter was either necessary or reasonable.  Necessity and reasonableness is for the plaintiff to prove.  In the absence of such evidence, the claim for bonesetter's fees will not be allowed.

110.In respect of the claim for nourishing/tonic food is concerned, again no particulars were given nor any documentary support.  However, the courts have generally taken a rough and ready approach in this respect.  In the absence of documentary support, usually a reasonable amount will be allowed.

111.In all the circumstances of this case, considering that the injury or disability to the plaintiff was not of any great severity apart from the persistent back pain, an amount of $5,000 will be allowed.

112.The claim for the wife's loss of earnings is made on the basis that the plaintiff's wife had to resign from her job as a secretary earning a monthly salary of $19,270 in early 2003 in order to take care of the plaintiff.  The claimed amount is based on a 12-month period, said to be from February 2003 to February 2004.

113.The defendant disputes this claim on the basis that it was neither reasonable nor necessary for the wife to have given up her job to take care of the plaintiff.

114.The objection by the defendant to this head of damage is that all the medical evidence points to the direction that the plaintiff was well able to carry out activities of daily living himself even after the accident.  Therefore there was no necessity for the wife to have to render any assistance to the plaintiff at any time after the accident.

115.The plaintiff's wife did not give evidence at the trial, and I have no evidence from her as to her concerns which led her to giving up her job as a secretary to take care of the plaintiff from early 2003 onwards.  However, the timing of that, which was over a year after his accident, would suggest that it was not so much due to his physical injuries or disabilities but rather due to his psychological/psychiatric state which caused her to give up her work.

116.The chronology of this case shows that the plaintiff was admitted to DKCH from November 2002 and stayed there until March 2003.  It was some time during his stay there that he developed his adjustment disorder.  That adjustment disorder was likely at its worst some time in February 2004 when the plaintiff had to be admitted to the QMH Psychiatric department, but discharged himself against medical advice after having been admitted to the psychiatric department for two days.

117.It can be seen from the various reports of the government doctors that throughout the time when the plaintiff was having the adjustment disorder, he was found by them to have suicidal ideation.

118.In evidence the plaintiff admitted that although he had suicidal ideation, the closest he had come to taking any steps of suicide was on one occasion at home, thinking about climbing out of the window, but that he did not take any physical steps in that direction, apart from thinking about it.

119.Albeit that the evidence does not show any actual attempts at suicide by the plaintiff, his suicidal ideation recorded by the government doctors is, in my view, sufficient to justify the concerns of his wife such that it was reasonable for her to give up her job to “look after” the plaintiff full time since she was the only person living with the plaintiff, and probably the most likely candidate to be looking after the plaintiff in the event that he should take any steps towards suicide.

120.The timing of the 12 months in which she claims loss of earnings for looking after the plaintiff coincides with that time when his psychiatric condition was likely at its lowest.

121.Accordingly, I am prepared to allow the claim of $231,250 under this head.

Future medical and travelling expenses

122.The plaintiff claims $3,448 as being future medical expenses for treatment in public hospital for the following two years, and a further sum of $5,040 as being future traveling expenses in respect of such future treatment.

123.The total amount of $8,488 is agreed to by the defendant.

124.The plaintiff also claims $65,000 being future psychotherapy treatment in the private sector and $$10,400 for medication, both of which were recommended by Dr Singer.  This part of the claim is disputed by the defendant.

125.The evidence from Dr Singer in this respect is that the treatment in the private sector is preferable to that which is offered by public hospitals in so far as psychiatric treatment goes, in that, in the private sector, one is guaranteed to be treated by the same doctor, but not necessarily so in public hospitals.  There are other advantages also with treatment in the public sector such as the length of the consultations and its frequency.

126.However, there is no evidence from the plaintiff himself that he had any dissatisfaction with his treatment given to him by the Western Psychiatric Clinic and Queen Mary Hospital for the whole of the pre-trial period.  There is also no evidence from the plaintiff that he intends to switch from treatment in the public sector to receiving treatment in the private sector.  Indeed, the evidence of the plaintiff was that his psychiatric condition had improved after treatment received from public hospital.

127.Accordingly, I am not satisfied that the plaintiff has proved that it is reasonably necessary for him to switch over to the private sector to continue his psychiatric treatment.

128.This claim for $75,400 for future treatment in the private sector is not allowed.

Interest

129.Interest on general damages for PSLA will be at 2% p.a. from the date of the Writ.

130.Interest on pre-trial loss of earnings and special damages will be at 5.46%, being half judgment rate, from the date of the accident.

Summary of damages

131.The summary of damages is as follows :

PSLA		$300,000
Pre-trial Loss of Earnings and MPF		515,161
Future Loss of Earnings and MPF		126,000
Other Special Damages		297,529
Future Medical and Travelling		8,488
Interest on PSLA		11,830
Interest on Special Damages and Pre-trial Loss of Earnings		205,224
	Sub-total :	$1,464,232

Deduction for ECC payment

132.By a Consent Order dated 16 February 2006 in DCEC No. 869 of 2002, it was agreed between the parties therein (being the same parties herein) that ECC compensation was quantified at $1,012,001. 

133.However that amount of $1,012,001 took into account the fact that the plaintiff had received his full salary of $62,276 up to the end of April 2002 as being periodic payment to him.  Therefore for present purposes of deducting ECC payment from the damages assessed, the amount to be deducted would be the amount stated in the Consent Order less $62,276 as to obviate double deduction of the $62,276.

134.The amount to be deducted is therefore $949,225.  The final sum after such deduction comes to $514,507.

Conclusion

135.There will be judgment to the plaintiff herein for the sum of $514,507 against the defendant.

Costs

136.There will be a costs order nisi that the defendant pays the plaintiff the costs of this action, to be taxed if not agreed.

137.As for the scale of costs upon taxation, it is normally the case that the District Court scale of costs would be ordered where, as here, the plaintiff succeeds only to the extent of an amount below the District Court jurisdiction after deduction of the ECC compensation.

138.However in this case, I note that the ECC compensation to this plaintiff was only made by way of a Consent Order dated 16 February 2006, which was just less than four months before the start of this trial in the High Court.

139.In those circumstances, it would not have been practicable or reasonable to expect the plaintiff to have made application after the Consent Order of 16 February 2006 to have transferred this matter to the District Court for hearing, particularly when leave had been given in this matter as early as 5 September 2005 for the matter to be set down for trial in the fixture list commencing 12 June 2006 to be heard in the High Court.  At the time leave was given to set down, there was no question of ECC compensation having been paid, and therefore no question of this case coming within the jurisdiction of the District Court.

140.Given the circumstances, and exercising my discretion in the matter, I would order that the costs order nisi given above be taxed on the High Court scale notwithstanding that the plaintiff only succeed to the extent of $514,507 which was well within the jurisdiction of the District Court.

Mr Tong Ng, instructed by Messrs. Y.L. Yeung & Co., for the Plaintiff

Mr Paul Lam, instructed by Messrs Christine M. Koo & Ip, for the Defendant