Liu Chun Kow Joe v. Lee Sau Wing
Read the full judgment text of HCPI 399/2001 on BabelCite. This High Court CFI judgment was delivered on 15 February 2007.
1. This is the Trial of Assessment of Damages suffered by the Plaintiff, a Correctional Services Department (“CSD”) officer as result of injuries sustained in a car collision on 28 June 1998 due to the negligent driving of the Defendant. Liability was admitted and Interlocutory Judgment was entered for the Plaintiff on 17 January 2002.
Cites 4 cases
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HCPI 399/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 399 OF 2001 ----------------------- BETWEEN
----------------------- Before : Hon Waung J in Court Dates of Hearing : 28-30 June, 3, 5-7 July, 25 and 28-29 August 2006 Date of Judgment : 15 February 2007 ------------------------ JUDGMENT ------------------------ 1.This is the Trial of Assessment of Damages suffered by the Plaintiff, a Correctional Services Department (“CSD”) officer as result of injuries sustained in a car collision on 28 June 1998 due to the negligent driving of the Defendant. Liability was admitted and Interlocutory Judgment was entered for the Plaintiff on 17 January 2002. 2.The Assessment was made difficult because there are serious differences between the Plaintiff and the Defendant under two Heads of Damages claimed, which I will refer to, for the sake of convenience, as :
In terms of dollars and cents, it is the claim for CAREER DAMAGE which has the greatest significance. But the assessment of CAREER DAMAGE is also affected by the assessment of PSYCHOLOGICAL DAMAGE and PHYSCIAL DAMAGE. It is therefore necessary in this Judgment to first give an historical account of both these two aspects, before proceeding to make findings on the Heads of Damages and thereafter to arrive at the assessment of the various Items of damages which the parties have conveniently, by way of Scott Schedule, reduced into 17 items. Now, I merely set out the headings of these items :
MEDICAL HISTORY 3.The Plaintiff was born on 26 April 1959 and was therefore aged 39 at the time of the accident. He is now aged 47. 4.Medical history of the Plaintiff was a matter of controversy because of the inter-relationship between what was pre-accident medical condition and what was post-accident medical condition. Its assessment was made more difficult for the Court because the parties deliberately preferred to call no live medical witnesses and merely relied on the written medical documents (the accuracy of some being challenged) and the evaluation of which (somewhat unusual for a personal injury action) was the subject of prolonged forensic debate. 5.Prior to the traffic accident, the Plaintiff injured his back on 8 April 1998 in what was described as a swimming accident. He summoned an ambulance that night and he was admitted to The Queen Mary Hospital (“QMH”) [1760] for lower back pain, difficulty in walking and he was hospitalised for 8 days, from 9 April until discharged from QMH on the 16 April 1998 [1778-9]. He was granted sick leave. 6.On 27 April 1998 (on a follow-up appointment) when he attended the Orthopaedics Department of Sai Ying Pun Specialist Clinic (“SYP”), he complaining of back pain recurring arising from a fall the previous night (his birthday), stepping on the tail of his cat at home [832, 1781-2]. But he did not seek any medical attention that night. There was therefore a history of back pain prior to the traffic accident in question. 7.He was on vacation leave from 12 May to 16 May 1998. He went to Japan with his wife for sightseeing sometime in May 1998. He resumed duty on 18 May 1998. That day he and his wife were involved in a traffic accident in which his wife sustained whiplash injury. She later instituted High Court Action alleging panic attack and psychiatric sequelae. 8.The traffic accident on 28 June 1998 was caused by the front side of the Defendant’s vehicle colliding with the offside of the Plaintiff’s car. After the accident, he lost consciousness and only regained consciousness after firemen arrived at the scene. The Plaintiff was taken to QMH by an ambulance. On examination, the following findings were obtained [827] :
The Plaintiff was admitted for back and neck pain. His symptoms improved with physiotherapy and he was discharged from QMH on 1 July 1998, 4 days after the accident. A follow-up appointment at SYP for 31 July was given to him. 9.Only two days after he was discharged from QMH, he issued his first letter dated 3 July 1998 [1177A] to the Defendant’s car insurer, holding the insurer “liable for bodily injury, damage and consequential losses caused by the accident on 28 June 1998”. This was followed on by another letter dated 6 July 1998 [1177B] to the insurer. 10.The Plaintiff was granted sick leave from 28 June 1998 to 12 July 1998 and from 28 July 1998 to 30 April 1999 [1203]. 11.The Plaintiff said a few days before his follow-up appointment at SYP on 31 July 1998, while bending forward brushing his teeth, he felt shooting pain radiating from his back down to the right leg. His right leg gave way and he fell to the ground. He did not however immediately go to SYP for treatment. A few days later when he attended SYP, he mentioned this to the doctor and was offered admission by the attending doctor, but the Plaintiff did not accept the offer [1810]. 12.The Plaintiff was again admitted (at his own initiative) to Hong Kong Central Hospital on 31 August 1998 [2063] because of alleged back pain during the previous night. MRI Scan was done [1817]. Dr Sum Kai Hoi of Central Hospital, the orthopaedic specialist observed that “there was some voluntary resistance” when the Plaintiff was undergoing the straight leg raising test [1663]. On 2 September 1998 (2 days later) he was discharged from Hong Kong Central Hospital. The Plaintiff did not go back for any follow-up. 13.Five days after discharge from Hong Kong Central Hospital, the Plaintiff was admitted to QMH on the 7 September 1998 and from that day until 12 October 1998 he was in QMH with physiotherapy treatment for his back. On 16 September 1998, whilst at QMH he was referred to Clinical Psychologist for anxiety and fears and he was diagnosed with Depressive Disorder and Anxiety Disorder. During that period in QMH, he went home on Home Leave for the period 12 September to 14 September, 19 September to 21 September, 26 to 28 September, 30 September to 7 October 1998 with a half day return to QMH on the 5 October 1998, 8 to 12 October 1998. He was discharged from QMH on 12 October 1998 [1828 to 1878]. 14.He was transferred/admitted to Duchess of Kent Hospital (“DK”) on 12 October 1998 for further intensive physiotherapy and he was there until 4 November 1998 when he was discharged [2001-2]. The Plaintiff attended thereafter follow-up clinic in Orthopaedics and Psychiatry at a variety of different clinics, private and government. He also had physiotherapy [853]. 15.The Plaintiff said he had nightmare of the traffic accident one night in February 1999 and when he felt like vomiting and rushed to the toilet, he fell to the ground because of shooting pain and weakness of the leg. He however did not seek immediate medical treatment. He mentioned the fall to the clinical psychologist in Western Psychiatric Centre when he attended the follow-up on 2 March 1999. 16.During his stay at QMH, he was attended by a psychiatrist for psychological disorder and at Duchess of Kent Hospital, he was also attended by psychiatrist. After discharge from these hospitals, he attended both Western Psychiatric Centre for medication and counselling as well as David Trench Rehabitation Centre (Psychology) (see Chronology of Plaintiff’s Medical Attendances). 17.The Plaintiff was off work from 28 June 1998 until 30 April 1999, a period of some 10 months with a notable gap of 15 days from 13 to 27 July when he was not on sick leave. When he resumed work on 1 May 1999, he was recommended to do light duties and to be provided with chair support. 18.He was at Violet Peel from 17 to 19 May 1999 and from 28 June to 1 July 1999 for Siatica (see paragraph 72 of Plaintiff’s 2nd Witness Statement). On 28 July 1999, he was admitted into Canossa Hospital and was discharged two days later on 30 July 1998 [2085-2089]. MRI was taken. Thereafter he was in and out of Violet Peel in September and November 1999. He attended at Southorn Playground Centre and Duchess of Kent from 2 August 1999 to mid December 1999 [1096-1122]. 19.On 27 December 1999, he was admitted into PYNEH because of the alleged falling off chair (while reaching out for some documents) while he was working [149-68]. There he remained until he was discharged from PYNEH on 21 January 2000 [2014]. He was an out-patient at PYNEH from 24 January 2000 until 20 April 2000. 20.On 31 March 2000, there was a second Medical Board (first Medical Board was on 22 January 1999) to assess whether the Plaintiff was able to resume his job as Officer in the Department. He was certified to be fit. 21.On 26 April 2000 (his birthday) the Plaintiff took a very important Promotional Board Examination. Due to alleged Hyperventilation attack (alleged to be brought on by flashback of the traffic accident), he did not finish the Examination but left the Examination Hall and was admitted that day into PYNEH. He was discharged the next day, 27 April 2000 [2013, 2018-2020, 2036] but apparently he took 6 days of sick leave from 26 April to 1 May 2000. This Examination episode assumes great significance in this case as this episode is most relevant to the large monetary claim based on CAREER LOSS. 22.From 29 April 2000, the Plaintiff resumed his regular attendance for physiotherapy at PYNEH and Southorn until late April 2001, namely a year later. There was the basket ball incident on 14 June 2000 when he was admitted to PYNEH for one night. On 13 May 2003, he fell to the ground because of experience of shooting pain in the back and weakness of the leg. 23.On 16 September 2003, there was a Joint Orthopaedic Report of that date [849-857] given by Dr David Cheng and Dr Danny Tsoi, both Specialists in Orthopaedics.
24.By a Joint Psychiatric Report [861-894] dated 23 August 2003, the two Specialist Psychiatrists Dr Chung See Yuen and Dr K. Singer made the following observations :
25.In the Joint Psychiatric Report the experts could not agree on certain areas. 26.On causation, Dr Singer stated that, apart from the accident, two other pre-existing factors needed to be taken into account :
27.On causation, Dr Chung expressed his contrary view as follows :
28.On progress of the Plaintiff, the two Consultant Psychiatrists again disagreed. Dr Singer said that the psychiatric disability has been aggravated and prolonged over the years by the stress of pending litigation. When the litigation is over, the Plaintiff should improve rapidly and be largely free of symptoms in half a year to one year. Dr Chung stated that the Plaintiff has been anxious and depressed for about 5 years since the accident. He believes it will take one or two years before the mental problems will show significant improvement after the litigation is over and it is likely that he will continue to show some symptoms of adjustment disorder for a few years to come. [892] WORK HISTORY 29.The Plaintiff was first employed by the Hong Kong Government as a Field Officer II of the Agriculture and Fisheries Department on 24 May 1985. In April 1989 he joined the CSD as a direct recruit officer with the rank of Officer. To join as direct recruit officer, the Plaintiff had to meet the academic qualification as well as the physical condition in addition to passing a written examination. He received one month training before passing out. In his evidence the Plaintiff referred to his training class of that year 1989, as his class of 117 [see 1249-88]. 117 was also the total number of recruits of that year. 30.As was the norm at the CSD, there was moving around of the staff in different prisons from time to time. The Plaintiff worked in various prisons of the CSD including Ma Po Ping Prison, Tong Fuk Centre and Stanley Prison. 31.The Plaintiff was employed as an officer of the CSD at Stanley Prison at the time of the Traffic Accident. He was posted to Stanley Prison in 1994. He was paid at the time of the Accident about $44,7540 per month (Point 17) and was entitled to overtime allowance and quarters. 32.He was assigned to work in 2001 at Pik Uk Prison (a smaller prison) and he was exempted from shift duty. He was only asked to do night duties. 33.The Plaintiff has been paid salary at Point 20, which is the maximum point payable to the rank of an Officer of the CSD. In order to reach a higher pay scale of Point 21 and beyond, the Plaintiff must pass the necessary Promotion Examination. To apply to become Principal Officer, the rank immediately higher than an Officer, it is mandatory to pass the Promotion Examination. The Plaintiff sat the Promotion Examination on 26 April 2000 but he failed to pass (walked out due to alleged hyperventilation) and this was the only time when he attempted to sit such an Examination. 34.In the Appraisal Report for the period from 1 June 1995 to 31 May 1996 (chop with date of 29 July 1996 [1552-1559]), after assessing as a C out of A to F [1555], it was said that he was not recommended for advancement to the next higher rank for the time being [1556 and 1558] and it was said that he was encourage to sit for the Promotion Examination which was the stepping stone for further advancement in his career [1557]. In the assessment of the officer’s long-term potential, the box ticked was 3, namely that the officer had the potential to rise about one rank but probably no further [1559]. 35.In the Appraisal Report for the period from 1 June 1996 to 31 May 1997 (chop with date of 5 August 1997 [1560-1567]), after assessing as a C out of A to F [1563], it was said that he was not suitable for advancement to the next higher rank until he met the minimum requirement (Passed in the Promotion Examination) [1564, 1566]. In the assessment of the officer’s long-term potential, the box ticked was 3, namely that the officer had the potential to rise about one rank but probably no further [1567]. Again he was encouraged to take part in the Promotion Examination [1565]. 36.In the Appraisal Report for the period from 1 June 1997 to 31 May 1998 (dated 10 August 1998 [1568-1575]), after assessing as a B-C out of A to F [1563], it was said that since the Plaintiff has not passed the Promotion Examination, advancement to the next rank is not suitable [1573]. In the assessment of the officer’s long-term potential, the box ticked was 3, namely that the officer had the potential to rise about one rank but probably no further [1575]. In the Appraisal interview, it was recorded that the Plaintiff was encouraged to prepare himself to sit for the Promotion Examination “but he confessed (?) that he had little ambition towards promotion.” [1574]. 37.The Plaintiff did not take the Promotion Examination: not in 1995, not in 1996, not in 1997, not in 1998 and not in 1999, when it was well known to him that the passing of the Promotion Examination was a fundamental requirement of going up even one rank. 38.In the Appraisal Report for the period from 1 June 1998 to 31 May 1999 (dated 16 August 1999 [1576-1583]), after assessing as a C out of A to F [1579], it was said that since the Plaintiff has not passed the Promotion Examination, advancement to the next rank is not suitable [1581]. In the assessment of the officer’s long-term potential, the box ticked was 4 this time and not 3, namely that the officer was unlikely to progress further [1583]. 39.In the Appraisal Report for the period from 1 June 1999 to 31 May 2000 (dated 19 July 2000 [1584-1591]), after assessing as a B-C out of A to F [1579], it was said he was encouraged to sit for the Promotion Examination to advance his career [1590]. In the assessment of the officer’s long-term potential, the box ticked was this time 3, namely that the officer had the potential to rise about one rank but probably no further [1591]. 40.In the Appraisal Report [1592-1608] for the period from 1 June 2000 to 31 December 2000 (dated 6 April 2001), it was said using the new appraisal form that his promotion potential grade was RED, namely minimal potential [1604]. Two red boxes were ticked. 41.In the Appraisal Report [1609-1625] for the period from 1 January 2001 to 31 December 2001 (dated 18 April 2002), it was said that his promotion potential grade was RED, namely minimal potential and that he was unfit for promotion [1621]. Box 5 was ticked. 42.The same unfit for promotion Box 5 [1638] was ticked in the Appraisal Report [1626-1642] for the next period from 1 January 2002 to 31 December 2002. 43.The subsequent Appraisal Reports only confirmed that the Plaintiff had no prospect of promotion. CREDIBILITY 44.At the Trial, the Defendant called no evidence. The Plaintiff gave extensive oral evidence and he was in the witness box for four and half days. Three senior CSD officers, Mr Chow, Mr Cheung and Mr Mak also gave evidence. 45.So far as the CSD officers are concerned, I accept their evidence and their evidence on the whole is contrary to the evidence given by the Plaintiff. 46.So far as the evidence of the Plaintiff is concerned (after careful examination not only at the time of the Trial but subsequently in writing this Judgment by re-examining all the materials before me, including the documents and the notes of the evidence) I have come to the conclusion that where the evidence of the Plaintiff is challenged, I do not accept his evidence except where I indicated specifically hereinbelow. I reject Plaintiff’s evidence for the following main reasons :
47.Essential to reaching appropriate conclusions on the many Items of the disputed claims, is an analysis of the evidence on 2 vital aspects, namely the Pre-Accident Back Pain and Pre-Accident Psychological Condition. FINDING ON PRE-ACCIDENT BACK PAIN 48.The Plaintiff accepts prior to the traffic accident, there were two episodes of back pain, namely the swimming accident in early April 1998 and the cat incident in late April 1998. But the Plaintiff emphatically denies there was any back pain problem prior to April 1998. 49.Three critical documents of PYNEH however point to the there being pre April 1998 back pain problem. The first is the Insurance Claim Form [1294-04/2005]. The second is the Discharge Summary [2014/later amended to 1294-07] and the third is the Attendance Records [1294-03/2009]. 50.The PYNEH Attendance Records [1294-03] shows the following dates of attendance, prior to April 1998 as being on :
51.The Discharge Summary of PYNEH [2014] has the following notes :
52.The Insurance Claim Form of PYNEH [2005] has the following notes :
53.As result of the Plaintiff disputing the accuracy of the data of PYNEH set out in the above 3 documents, there was correspondence between the parties. The matter was made difficult partly because of the combination of the Plaintiff’s concern for privacy and the Hospital not being able to trace some of the original documents and therefore had to rely on the computer records of the Hospital. The Hospital eventually wrote by letter dated 25 January 2005 [1294-06], saying that the complete medical records of the Plaintiff could not be located, that the first admission into Hospital of Plaintiff was in December 1999 but that he first attended Accident and Emergency Department in 1995. Then under paragraph (5) of the letter it said :
54.The copy attached to that letter is an amended Discharge Summary (“Amended Discharge Summary”) [1294-07]. The supplementary discharge notes from the middle of that document Amended Discharge Summary are important and they read :
55.The position adopted by PYNEH is that there was an error in referring to the admission of the Plaintiff to Medical ward. There were only attendances by the Plaintiff at the Accident and Emergency Department, with no impatient treatment. There was an error in referring to 1994-96 because the period in question should be 95-96, not 94-96. There was no retracting of the following important data contained in the Amended Discharge Summary :
56.The critical date is 11 April 1996 where the Plaintiff was clearly seen by the Psychiatry Department of PYNEH and this therefore put the date of when the Plaintiff was referred by the bad back Orthopaedic to the Psychi Department before 11 April 1996 and this confirms the time when the Plaintiff was having multiple attendance for muscle spasm + Hyperventilation to the years 1995 to 1996. 57.The Plaintiff hotly disputes that he had any back problem prior to April 98 and asserts that the PYNEH is wrong. But the documentations from PYNEH are clear and it is highly unlikely that the Hospital could conjure up (1) Muscle Spasm, (2) Hyperventilation, (3) Back pain, (4) Anxiety Disorder and (5) Panic Disorder. This is specially when under challenge, the Chief of Department of Orthopaedics and Traumatology, Dr Ip corrected the mistakes made and put the correct position carefully in the Amended Discharge Summary. The Plaintiff has chosen not to call the Hospital or to seek to cross-examine Dr Ip. In the light of all the material available to the Court, I have no doubt that the Plaintiff did have back problem prior to April 1998. In fact the two experienced Consultant Orthopaedics Specialists high lighted the difficulty of the position maintained by the Plaintiff that there was no pre-April 1998 back problem, when they said at paragraph 3 of their Joint Report [851] :
58.I have not forgotten many of the points made to me by the Plaintiff or his lawyer against such a finding. Nor have I overlooked the lately exhibited sick leave certificates for dizziness. They do not change the picture I have that the back pain went further than April 1998 and I so find. FINDING ON PRE-ACCIDENT PSYCHOLOGICAL CONDITON 59.The resistance of the Plaintiff to any suggestion that he was suffering from Psychiatric problem pre the traffic accident was strong and adamant. The documentation discovery fight became important because the Defendant took the view that the Plaintiff was not disclosing fully about his medical past. I have been referred by the Defendant to the document entitled “Chronology On Discovery of Plaintiff’s Medical Records“ and I accept that it correctly set out what took place and why it led to the order of discovery. In particular I accept what was said by Suffiad J. In his Reasons for making costs order against the Plaintiff on 5 May 2003 when giving his short reason for his decision on costs :
60.The three important documents of PYNEH which I referred to earlier emerged from the discovery. The attendance of the Plaintiff at the Psychiatry Department on 11 April 1996 was of course crucial as being against the assertion of the Plaintiff that he had no pre-accident psychiatric problem. This attendance record at the Psychiatry Department on 11 April 1998 [2009] was confirmed by the Amended Discharge Summary [1294-07] as well as by the Claim Form . 61.In the Joint Psychiatry Report, the experts disagreed on certain aspects. Dr Singer took into account the possible pre-accident psychological problems of the Plaintiff as I have indicated earlier. But Dr Chung ignored this aspect and assumed that there was no such pre-existing psychiatric problem such as Hyperventilation, Anxiety Disorder and Panic Disorder described in the Amended Discharge Summary. Dr Chung of course was not aware (at the time of his Joint Psychiatric Report) of the subsequent firm view expressed by PYNEH as contained in the Amended Discharge Summary [1294-07]. 62.As in the earlier case of my reaching my Finding on Pre-Accident Back Pain, for similar reason I accept the accuracy of the position set out by PYNEH and I reject the case of the Plaintiff that there was no pre-accident psychological problem. I find as a fact that the Plaintiff did have a pre-accident history of psychiatric problem which was diagnosed by PYNEH in 1996 as Anxiety Disorder and Panic Disorder. I therefore prefer the opinion of Dr Singer to that of Dr Chung where they differ. I acknowledge of course that the extent of that psychiatric problem pre-accident is not fully known. But I cannot ignore the fact that the Plaintiff went to great length to deny it and to hide it and that there is good possibility he might have gone to other doctors or clinics pre-accident for psychiatric treatment which we do not know about. The history of this case tells us one thing for certain and that is this particular Plaintiff has a known history of seeking medical treatment in many, many places and if he does not reveal it, it is not easy to find out the true position. I am not surprised of course that the Plaintiff does not wish to be known to have a psychiatric problem. As an Officer involved with security of Prisons, it cannot possibly be of assistance to his career if there is any serious psychiatric problem. I regret having to come to a finding against the Plaintiff on pre-accident psychiatric condition, but the Court is left with no choice, having regard to the way the case has been contested by the Plaintiff. 63.Having now made two important findings on Pre-Accident Back Pain and Pre-Accident Psychiatric Condition, I will now proceed to consider each of the Items of damage. ITEM 1 – PAIN AND SUFFERING AND LOSS OF AMENITIES 64.Having regard to the two Joint Reports (with my preference for Dr Singer’s view) and my previous Findings on Pre-Accident Back Pain and Pre-Accident Psychiatric Condition, I am of the view that this is not a case where the Plaintiff is entitled to a very large substantial award for Pain Suffering and Loss of Amenities (“PSLA”) as contended by the Plaintiff. This is a case where the Plaintiff would have, even without the traffic accident, problems with his back. But the problem, both before and after the Accident, was not serious. The Plaintiff could fully discharge his duties and if he has any slight disability affecting his daily life and work, most of it is attributable to the pre-existing symptomatic condition and not due to the Accident. I agree with Dr Singer that once the litigation is over the Plaintiff should recover from his adjustment disorder problem which is really pre-existing. 65.The applicable principle is that set out in Chan Kam Hoi v. Dragages et Travaux Publics [1998] 2 HKLR 958 where Mortimer JA said :
66.At first instance in the Chan case, the Judge awarded PSLA at HK$137,500 (HK$250,000.00 less 45% discount in light of the plaintiff’s pre-existing asymptomatic condition) on the basis of it being in the third category. The contest before me on this Item 1, is whether it is a case of 1st category as contended by Mr Sakhrani for the Plaintiff or of the third category as contended by Mr Wright for the Defendant and how much discount should be given if in the third category. I have no doubt having regard to my findings earlier and the evidence before me, that this is a case falling within the third category. 67.It was argued on behalf of the Plaintiff that this is a Substantial Injury Category case. I disagree. In my view, the accident caused really mild injury as can be seen from only 3 days in hospital compared to the 9 days the Plaintiff was hospitalized in early April 1998. Having studied the comparable cases, it seems to me that in the circumstances, a discount of 60% on a figure of $350,000 would be fair amount to award for PSLA. The award therefore under Item 1 is $140,000. ITEM 2 - PAST LOSS OF EARNINGS 68.This Item 2 for Loss of Earnings was agreed at $135,000. ITEM 3 - LOSS OF DAYS OFF IN LIEU 69.The claim under this Item 3 for $82,932 is for Loss of Days Off because of medical appointments. The Plaintiff claims that because of medical appointments, he was given half a shift leave for his medical appointment and he himself took the other half day off. The evidence from the senior officers who gave oral evidence all showed that arrangement could be made so that proper time off was given for medical appointments and it was not either the policy or the requirement of CSD for officers to take time off themselves for medical appointments. It would indeed be scandalous if there was such a policy to prevent officers from properly be given time off to attend to their medical appointments. On the other hand, I cannot overlook the fact that the Plaintiff did take many half days off because of his medical appointments and this was probably because it was not always sensible to trouble his superiors constantly with arranging different shifts because of the large number of medical appointments the Plaintiff found himself having to attend. This is an area where I believe I should not be too harsh on the Plaintiff. In all the circumstances, I would allow half of the amount claimed. I award to the Plaintiff under this Item 3, the sum of $41,466. ITEM 4 - LOSS OPPORTUNITY TO EARN VACATION LEAVE 70.An officer such as the Plaintiff was entitled to earn 40.5 days of vacation leave in one year. The claim under Item 4 is for the sum of $45,103.93 representing the loss of earning of vacation leave. This occurred when an officer was on vacation leave or on no pay sick leave (after having exhausted the sick leave) and he was not entitled to earn any vacation leave. The period in question was between 30 April 1999 and 25 March 2002 and with the details set out in the Written Closing of the Plaintiff. The Plaintiff contends that the loss was caused by the Accident. Under this head, I am prepared to regard the loss as directly Accident related. This is not a case of apportionment because it seems to me that without the Accident, there could not be such a long period of medical treatment. Therefore I allow this Item in full. I would award under Item 4, the sum of $45,103.93. ITEM 5 - LOSS OF VACATION LEAVE 71.This is a claim of $53,392 for loss of 32 days of vacation leave because having exhausted his sick leave, he used his vacation leave of 32 days (from 22 February to 25 March 2002) to cover his no-pay sick leave [paragraph 48 of Written Closing of the Plaintiff]. In the Scott Schedule and in the Defendant’s Closing Submission, there was no reference to the letter dated 19 October 2004 from the CSD. At paragraph 5 of that letter [1249-105] this was said :
The claim is based on vacation leave being used for this no-pay sick leave period. In fact there was no such vacation leave being used for that period. The claim under Item 5 cannot be allowed. ITEM 6 - LOSS OF FUTURE EARNINGS 72.This Item 6 claim has been dropped by the Plaintiff and in its place there is now a claim which I will treat as Item 6A being claim of loss of overtime work. ITEM 6A – LOSS OF OVERTIME WORK 73.This claim was added by the Plaintiff for lost overtime after the Accident. It was suggested that based on pre-accident overtime of 248 hours during the 41 months period from January 1995 to May 1998, the Plaintiff had lost the overtime he would otherwise have earned but for the Accident. The claim was for period from 1998 to 2002 when the funding provision for the Prisons was drastically reduced. In my view, this claim is much too ambitious. First of all, the pre-accident over time average is artificially pitched calculated on the basis of 41 previous months which included period when the Vietnamese refugee problem caused the necessity of much overtime because the CSD personnel were fully stretched. Secondly, it assumed that without the Accident, the need for overtime would remain the same at a time when there was progressive reduction of funding. Thirdly it assumed that the Plaintiff would remain in Stanley where there was a greater call for overtime as opposed to the Plaintiff being in the normal course of events being rotated out of Stanley (by 1998 he was already in Stanley for 4 years) into other prisons with less need for overtime. The Plaintiff has not produced any figure of overtime which was earned by comparable colleagues in CSD over that period of time which would give the Court a much more reliable basis to assess the alleged loss. In my view, it is likely that the Plaintiff has suffered some loss of overtime as result of the Accident but this newly formulated claim put forward by the Plaintiff for lost of overtime pitched at $46,042 is much too speculatively high. Doing the best I can, I will award a sum of $5,000 under this head of Item 6A. ITEM 7 – LOSS OF EARNING CAPACITY ITEM 8 – LOSS OF PROMOTION PROSPECTS ITEM 9 – LOSS OF HIGHER PENSION ITEM 10 – LOSS OF BETTER HOUSING 74.These 4 Items can all be considered as a group because they all share the common feature of prospect of career movement (down and up) resulting from the Accident. These four Items constitute the most important aspects of the claim of the Plaintiff. Item 7 claim is for $600,000. Item 8 claim is for $1,200,000. Item 9 claim is for $984,000 and Item 10 claim is $280,000. These four claims add up to more than $3 million. Such high claims require the closest scrutiny as I have indicated during the course of the Trial. 75.There are really two aspects to the claim, one is the prospect of going down in the sense of losing the present job (Item 7) and the other is the lost prospect of not going up, that is not getting the promotion and higher income and benefits which would have come to the Plaintiff but for the Accident (Items 8, 9 and 10). 76.First dealing with negative prospect of possibly losing his present job, I must say I totally agree with Mr Wright’s submission that there is simply no real nor substantial risk of the Plaintiff losing his present employment. It has been more than 8 years since the Accident and he has not lost his employment with the CSD and there is simply no evidence to suggest that suddenly it would happen. What one must not ignore is that being a civil servant in Hong Kong, there is a certain element of iron bowl built into the system by practice, rules and regulations. 77.In terms of practice I can discern a certain benevolent, human and liberal attitude of senior CSD management towards its staff specially when a junior officer has met with medical misfortune. There is therefore a built in paternalism. In terms of rules and regulations, I take note of the relevant CSR. CSR 365 states, that invaliding an officer requires medical evidence satisfying the approving authority that an officer is incapable by reason of any infirmity of mind or body of discharging his duties and that such infirmity is likely to be permanent. The Medical Board of March 2000 determined that the plaintiff was fit to discharge his principal duties. The evidence shows that a medical board should only be convened if an officer has been on continuous sick leave for than 91 days. I am not aware that the Plaintiff since 2001 had been on any prolonged sick leave. There is therefore no basis that he should be invalided on medical grounds. In my view, it is wholly fanciful for a large claim of $600,000 to be made by a CSD officer who suffered a minor injury some 9 years ago to claim that he might lose his employment in the future because of his Accident injury. I reject this Item 7 claim. 78.Turning to the other side of the claim for lost income, based on lost prospect of promotion, the three Items of claim all turn on what is the realistic prospect of the Plaintiff being given a Promotion if the Accident had not taken place. Promotion to the next rank up as Principal Officer in CSD requires the passing of the Promotion Examination. It is a pre-condition. There is no question of seniority or merit or comparables. Therefore the question is how good or able is the Plaintiff and what is the objective possibility of his passing the Promotion Examination. 79.The Plaintiff himself admitted that he was only the middle of his class. The many Appraisal Reports all indicate that he was considered no high flyer and with due respect, someone with at best a chance to go only one grade up. 80.The repeated reluctance of the Plaintiff to take the Promotion Examination is an indication of both the difficulty of passing the Promotion Examination as well as the Plaintiff’s own assessment of his chances of passing the Promotion Examination. I do not overlook the evidence of the Plaintiff as to why he was not quite ready to apply for Promotion or to take the Promotion Examination before 1998. I do not believe he was being forthcoming. He knew very well the difficulty of passing the Promotion Examination and that is the important reason for his holding back and also the real reason that he had never tried again after the disaster of 2000. He could try in any of the years 2001, 2002, 2003, 2004, 2005, 2006. But he chose not to. I do not see how any one who aborted the 2000 Promotion Examination and never attempted any Promotion Examination thereafter could possibly say that he has a realistic chance of passing this difficult examination. None of the doctors had ever said that his Accident injury would have any adverse impact of his ability to pass the Promotion Examination. 81.Counsel for the Plaintiff tried not to face up to the harshness and difficulty of passing the Promotion Examination. The evidence however gives the true picture. The pass rate at the Promotion Examinations is notoriously low. In the 1999 Promotion Examination, 2 out of 34 passed, a pass rate of 6%. In the 2000 Promotion Examination, 4 out of 22 passed, a pass rate of 18%. In the 2001 Promotion Examination, 5 out of 30 passed, a pass rate of 16%. In the 2002 Promotion Examination, 6 out of 25 passed, a pass rate of 24%. In the 2003 Promotion Examination, 4 out of 50 passed, a pass rate of 8%. In the 2004 Promotion Examination, 1 out of 23 passed, a pass rate of 4.5%. In the 2005 Promotion Examination, 1 out of 13 passed, a pass rate of 7.7%. [1341-70]. It can thus be seen that with such a low pass rate, even the very best candidates, persons who are naturally highly able or high flyers might not be able to pass such Promotion Examination at least not until several attempts as indicated by Mr Mak in his evidence. 82.But the hurdle of Promotion in the CSD is not limited to only passing the Promotion Examination. There is further the selection process which is equally demanding. Passing the Promotion Examination is only the first step to being considered for Promotion. The data given by CSD under its letter dated 30 July 2004 [see 1651-56] suggest that appointments from eligible officers was notoriously small in number. The number of appointees had gone down from 26 in 1998, to 11 in 2001, to 7 in 2002. There were apparently no appointments in 1999, in 2000 and in 2003. In terms of filling vacancies in the rank of Principal Officer, the downward trend is even more telling because in 1998 all 26 vacancies were filled, but in 2001, out of 24 vacancies only 11 were filled and in 2002 out of 19 vacancies only 7 were filled. 83.Having regard to all the evidence, including the submission of Mr Sahkrani as to the statistical figures (favourable to his client) he relied upon, I have no doubt that there was and is no realistic possibility of the Plaintiff being appointed to a higher rank, even without the Accident. The Accident did not cause the Plaintiff to lose any prospect of Promotion. With all due respect to the Plaintiff, I simply do not believe that he was ever the sort of material for higher promotion. 84.At the hearing, I was referred to authorities on this aspect. In my view, all the authorities would not help the Plaintiff and I have assessed him to have no chance of Promotion, even on the basis of his having no pre-accident Psychiatric condition of Anxiety and Panic Disorder. 85.It follows therefore that in my view, there is no basis for a claim of loss of higher pension or better housing, which are all dependent on lost Promotion. I therefore reject the claim of the Plaintiff under Items 8, 9 and 10. ITEM 11 – LOSS OF CONGENIAL EMPLOYMENT 86.There is undoubtedly good authority in support of a separate award for loss of congenial employment. Although I have come to the conclusion that there is no prospect of the Plaintiff losing his job, it is also equally clear to me that but for the accident the Plaintiff even though he has his pre-existing back problem and pre-existing psychological condition would have enjoyed at least a few more years of employment in prisons in jobs which gave him greater satisfaction. I accept that his being tasked to undertake less demanding work in prison including the shift to Pik Uk Prison is distressful. But the distress is also partly self inflicted in the sense that it was the Plaintiff who wished and applied to be given the night shift duties which is the reason why he had to submit quarterly medical reports. 87.The Plaintiff here, yet again is seeking an excessive award, under this head for $200,000. I have looked at comparable case namely :
It seems to me that a fair award under this Item 11 for Loss of Congenial Employment is $30,000. ITEM 12 – DAMAGE TO VEHICLE 88.The parties are agreed as to the quantum for $132,500 as value of the car damaged, the survey report of $800, the towing charges of $1,275. The parties cannot agree on the loss of use of the car put by the Plaintiff at $20,000. It is admitted towards the end of the case by the Plaintiff’s lawyer that the claim of $20,000 for loss of use of the car in the circumstances was too high. The evidence is that after the accident the Defendant avoided using private car and only used taxi for medical appointments. I see no basis for making any award for loss of use of a car in the circumstances. I therefore make an award under Item 12 in the agreed amount of $134,575. ITEM 13 – FUTURE COST OF MAINTENANCE 89.The joint experts agree that the Plaintiff requires further psychiatric treatment. The experts also said that the Plaintiff ought to have an intensive course in the private sector to get maximum benefit. These is commonly allowed by the courts I would make an award of $10,000 under this Item 13. ITEM 14 – MEDICAL EXPENSES 90.The medical expenses claimed originally at $42,917 has now been reduced by the Plaintiff in his Final Submission to $22,960 after giving credit for recoveries from insurance company. From the detailed items of claim made by the Plaintiff in the Revised Statement of Claim [at page 24], I will allow the following items;-
I will therefore award under Item 14, the sum of $9,484.00. ITEM 15 – TRAVELLING EXPENSES 91.This is a grossly inflated claim, originally put by the Plaintiff at $75,000. In the course of giving oral evidence, the Plaintiff was forced to admit that an excessive claim under this Item was put forward. 92.This is a claim with a pronounced lack of supporting evidence: there were no receipts and the claim was inflated by many times. The evidence is in fact that the Plaintiff took public transport most of the time and not taxis. The Plaintiff also admitted that he has no evidence of how his relatives traveled to visit him nor that he had reimbursed for such travelling. When he was being asked in court who were the family and relatives visiting him during hospitalization to justify such claim, the Plaintiff said his mother who was living in Tsuen Wan also visited him. However, when giving evidence on how he justified frequent and prolonged home leave during the same hospitalization period, the Plaintiff said he felt better at home with his family and he said he in fact resided his mother on Conduit Road. This is yet another aspect of this whole case, where the Court finds the Plaintiff not only unreliable but positively dishonest in making his claim. It goes beyond a question of being careless. In the circumstances, it seems to me that the Court must exercise the greatest scrutiny in examining the new Appendix I to Written Closing of the Plaintiff. 93.It is to be noted that this Appendix I was supplied after the close of evidence and therefore the Defendant was deprived of the opportunity to test the veracity of what is contended in the detail of that Appendix I. It seems to me many aspects of the Appendix I cannot be satisfactorily accepted. The alleged mother and wife’s visits at relatively high costs I will not accept. Doing the best I can I will allow only one quarter of the claim in respect of the mother and wife’s visits in the total sum of $15,400 (made up of $5,400 + $2,200 + $5,200 and $2,600). I will therefore deduct from $43,150 the sum of $11,550. The sum I will award under this Item 15 is $31,600. ITEM 16 – NOURISHING FOOD 94.This Item 16 Claim is agreed at $8,000. ITEM 17 – HEALTH EQUIPMENT 95.The claim for Health Equipment was put at $48,413. The most controversial items of the make up of such claim is the electric treadmill for $28,500 and the massage machine for $15,800. There is no independent reference in the reports to these machines or their beneficial effect on the condition of the Plaintiff. These were certainly not purchased pursuant to written advice by doctors. The Plaintiff could easily have obtained the endorsement of the Joint Experts for these purchases. But there was none. I would disallow these two items. I award under Item 17, the sum of $4,113. CONCLUSION 96.To summarise, the damages I award are the following :
97.In the light of this Judgment, the parties should be able to agree on all matters arising, such as interests and costs. In the event that such matters cannot be agreed, then the parties should arrange to have the matter be determined by this Court at a time to be fixed.
Mr Ashok K. Sakhrani, instructed by Messrs Munros, for the Plaintiff Mr John Wright, instructed by Messrs Ip Kwan & Co., for the Defendant Both appeal and cross appeal dismissed: see CACV304/2007 dated 16 April 2008 |
Cases cited in this judgment
Further hearings and rulings under HCPI 399/2001