Li Yuet Yee and Others v. Ng Chi Hang

HCPI 451/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 451 OF 2006

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Coram : Before Master J. Wong in Court

Date of Hearing :   3 and 4 September 2008

Date of Judgment  :   31 October 2008

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ASSESSMENT OF DAMAGES (1): THE WIFE

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Introduction

1.This is an assessment of damages for personal injures suffered by the Wife.

Background

2.The 1^st and 3^rd Plaintiffs are wife and husband.  The 2^nd and 4^th Plaintiffs are their younger and elder sons respectively, both minor.  Before the accident, they lived happily in Hong Kong.

3.On 6 July 2003, at about 8:00 p.m., the family was walking back home on the street after attending a birthday party.  The Wife was holding the hand of the Younger Son in the front. Suddenly, the vehicle driven by the Defendant hit them, causing them serious injury.  The Husband and the Elder Son eye-witnessed the accident from behind, causing them to suffer as well.

4.On 2 June 2006, the family commenced the present proceedings against the Defendant.  Interlocutory Judgment was entered for all the Plaintiffs against the Defendant on 14 June 2006, leaving damages to be assessed.  The claim of the Elder Son was settled and approved by me on 7 January 2008.  As to the remaining claims, I heard them on various days in May and September 2008.

5.I will deal with the Wife’s case first.

6.The Wife was born in Hong Kong on 5 May 1970.  She studied locally up to the secondary level and then started to work as a shipping clerk.  On 28 October 1994, the 3^rd Plaintiff married with her.  Their two sons were born thereafter in 1995 and 1998 respectively.

7.Sometime in 1995, the couple decided to purchase a matrimonial home.  They eventually bought jointly Flat A, 18/F, Block 4, Tivoli Garden, Tsing Yi at about $2 m through the Sandwich Class Housing Scheme of the Hong Kong Housing Society.  The transaction was financed by a bank loan of about $1.6 m and they had to pay a monthly instalment of ten odd thousands.

8.The Wife was seriously injured at the accident, which are shown from the following Government Hospital Medical Reports.

General

(a)  Princess Margaret Hospital (“PMH”) Report dated 12 October 2006

“……Initial assessment revealed a closed fracture of her right femur and an open dislocation of her left knee.  A closed fracture of her right acetabulum was also evidenced on X-ray films.  Emergency operations were performed, including debridement and external fixation for her left knee, and insertion of Steimann pin to her right tibia for skeletal traction.  Intravenous antibiotics were administered.  Computerized tomography of her pelvis was performed on 07/07/03 to better delineate her acetabular fracture.  Apart from the acetabular fracture, slight separation of her right sacro-iliac joint and fracture of the tip of the left transverse process of her fifth lumbar vertebra were also seen.  She was observed in the intensive care unit initially after the operation and later transferred to the orthopaedic ward on 08/07/2003.

She underwent further operations for her skeletal injuries subsequently.  Repair of the posterior cruciate ligament of her left knee was performed on 11/07/2003.  Open reduction and internal fixation of her right acetabular and femoral fractures were performed on 15/07/2003.  There was also evidence of injury to the anterior cruciate and medical collateral ligaments of her right knee when it was examined under anaesthesia during the operation.  This was managed conservatively with a knee hinged knee brace.

She was kept from weight bearing on her lower limbs for the initial post-operative period.  Wound healing was uneventful.  The right lower limb was mobilized in bed during this period.  The external fixator on her left knee was later removed on 06/08/2003 and mobilization was started.  Follow-up radiological examination showed evidence of healing of her right acetabular and femoral fractures.  Walking exercise was started on 10/09/2003, about two months after the injury.  She was transferred to the rehabilitation ward in Caritas Medical Centre for further rehabilitation on 15/09/2003.

She was discharged from Caritas Medical Centre on 03/10/2003 and followed up in our outpatient department on 13/10/2003.  At that time, she could walk with a pair of elbow crutches.  There are stiffness in her right hip and left knee.  There was laxity of the anterior cruciate ligaments of both knees.  The muscle power of both her lower limbs were slightly impaired.  X-ray showed that fracture healing was satisfactory.  Rehabilitation was continued in the outpatient physiotherapy department.

Further follow-ops revealed that the range of movement of both knees were limited with positive posterior drawer signs on both knees.  The right hip had limited range of movement.  The walking tolerance was limited and she needed walking aids.  She had persistent instability of left knee.  X-ray showed healing of fracture over the right femur.  She needed a brace for her left knee.  She complained of persistent pain over right knee, right hip, left knee and right thigh.

On 23/09/2004, X-ray of right hip showed decrease in joint space.

Because of persistent instability of left knee, reconstruction of her posterior cruciate ligament (PCL) was suggest on 02/06/2005.

She was admitted to Princess Margaret Hospital on 20/07/2006 and received the reconstruction of her PCL on 21/07/2006.  She was discharged on 28/07/2006 and she was put on bracing and protected weight bearing.

At the last follow-up on 20.9.2006, the range of movement of left knee was 0°-75°.  She was continued on rehabilitation.

……”

(b) PMH Report dated 10 November 2006

“The patient was admitted to Princess Margaret Hospital on 21.8.2006 for change of hinged brace to protect her knee’s reconstruction.  She was given physiotherapy for mobilization of her left knee.  She was discharged on 28.8.2006 and she could achieve 0°-40° range of movement.  At the follow-up on 19.10.2006, the range of movement of her left knee was 0°-90°.

X-ray of pelvis showed loosening of 1 screw and degeneration of right hip.  Patient requested deferring the removal of the screw till a later date.  Removal of the screw is recommended.”

(c)  PMH Report dated 21 February 2007

“The above-named was admitted on 15.1.2007.

Removal of one loosened screw was performed under general anaesthesia on 16.1.2007 through the old surgical scar at her right groin.

She had a psychiatric assessment during her stay.  The post-operative course was uneventful and she was discharged on 19.1.2007.

She was followed up on 31.1.2007 and stitches were removed.  She could walk with one crutch and physiotherapy was requested.”

Physiotherapy

(d) PMH Physiotherapy Report dated 15 June 2007

“Physiotherapy treatment started on 13^th October 2003 and the last treatment session was on 31^st May 2005.  She attended a total of 110 physiotherapy sessions.  Treatments given included Interferential Therapy (I.F.T.), Electrical Stimulation, Lower Limbs strengthening and mobilizing exercise and walking exercise.

Miss Li was referred to our Department again by the Department of Orthopedics & Traumatology (O&T), P.M.H. for ‘Left Knee Posterior Cruciate Ligament Injury’ and registered on 28^th August 2006.  Physiotherapy treatment started on 7^th September 2006 and she is still on active treatment at our Department.  Up till 30^th May 2007, she attended a total of 24 physiotherapy sessions.  Treatments given included Magnetopulse Therapy.  Electrical Stimulation, Lower Limbs strengthening and mobilizing exercises and walking exercise ……”

Psychiatry/Psychology

(e)  Caritas Medical Centre Report dated 16 January 2006

“Behavioral Observation

LI was seen alone in the session.  She was impressed to have difficulty expressing her negative emotions.  She would smile when talking about her worries but would burst into tears when she could not hold it anymore.  She admitted that she tended to hide her negative emotions from people.  She was able to calm herself down gradually in the session.  Her speech was impressed to be coherent and relevant.

…….

Treatment and clinical impression

Ø Psychoeducation over PTSD

Ø Pamphlet given

Clinical Impression

Ø PTSD

Ø Distorted thoughts about the accident

Ø Coping of stress: hiding negative emotions

Ø Depressive feature

Plan

Ø Relaxation

Ø CBT for PTSD”

(f)   West Kowloon Psychiatric Centre Report dated 13 June 2007

“ 1.  She was referred from Clinical Psychologist of Caritas Medical Centre in 10/2006 for sleep difficulties, intrusion, irritability, avoidant behaviours and hypervigilance.  She was first seen in this Centre on 27/2/2007.

2.  She complained of poor sleep since 2003.  She told me that she had pain over the wound and sleep disturbance since 2003 (after the road traffic accident).  She remembered that she was knocked down by a car when she was crossing the road.  She had fracture of right thigh and pelvic bone and also left knee injury.  She admitted to have some dreams but not nightmare.  She was not awakened by the dream at night.  She had some depressive symptoms, like sense of useless because she couldn’t do things as before.  She was diagnosed to be suffering from an Adjustment Disorder.  The differential diagnosis included Mixed Anxiety and Depressive Disorder, Post Traumatic Stress Disorder and Compensation Neurosis.  She was treated with antidepressant and sleeping pills.

3.  She was seen again on 27/3/2007, 2/4/2007, and 5/6/2007.  The working diagnosis was Adjustment Disorder.  When she was last seen on 5/6/2007, she told me that she felt better after taking the medication.  The mood was not low.  She felt better if she didn’t think about the past.

4.  In summary, she was diagnosed to be suffering from an Adjustment Disorder.  Her condition improved gradually in the past few months.  I could not see any direct relationship between the injury and her mental problem.  Her mental problem was related to her personality trait, her coping strategy and also the difficulties she faced in her daily life.  No permanent disability was expected for her mental problem.”

9.Parties appeared before me on 3 and 4 September 2008.  Mr. D. Law of Counsel represented the Wife and Mr. J. Hemmings acted for the Defendant.  Having heard from them, I reserved my Assessment to be delivered.  I now do so.

Credibility of the Wife

10.There was only one witness in the Assessment, the Wife herself.  On balance, I find her a reliable and honest witness to be counted on.  Her evidence remained unshaken during cross-examination by Mr. Hemmings and clarifications sought by this Court.

11.Indeed, I would go to the extent to accept the Wife’s case that:

(a)   She is unable to resume to work anymore, even for sedentary work.

(b)   She has been advised by doctors to endure pain so far as if it is possible before having any total hip replacement as well as that of her left knee.  It is because joint replacement can generally last for about 10 years and such operation can only be done 2 or 3 times in one’s life.

12.In accepting the above case for the Wife, I am aware that 11(a) is contradictory to the expert opinion and 11(b) is not mentioned in any of the medical reports.  Nonetheless, I take the view that the matters are within my job in this Assessment having regard to all the available evidence before me.

(a)   The current complaints by the Wife are consistent with the findings in the examinations.  The orthopaedic experts on both sides accepted them generally.

(b)   The orthopaedic experts took the view that the Wife “could probably only work in sedentary jobs, for example, as cashier, operator, or working as a clerk if she is only required to perform sedentary work”.  I respectfully disagree and believe that I am in a better position to answer such question and note the following factors to consider.

(i)    Before the accident, both the Husband and the Wife were of middle-aged. They worked diligently for the family.  They had their own house.  They had 2 boys and were planning to have a third one, hopefully a girl.  A domestic maid was helping them to take care of household chores.  Everything went well.

(ii)  Then the accident came so suddenly.  Both the Wife and the Younger Son were severely hurt.  The same were instantly eye-witnessed by the Husband the Elder Son, followed by series of pain and operations.  Jobs were affected, and so the income.  Their home had to be sold, and the maid, laid off.  It is unlikely that they will be having a third child. 

(iii)    The Wife is now aged 38.  She has to walk with crutch and needs to take a rest for every 20-25 minutes of walk.  She cannot squat or sit on low stool.  She can only carry objects of less than 5 kg.  Her body has been left with a number of extensive scars and intermittent pain from time to time.  She has gone through a number of operations and is likely to need two or three major ones in the rest of her life.

(iv)    I agree to accept on balance the job nature of the Wife as she described.  It was a shipping clerk, but not sedentary. Traveling and physical handling of box of files was required.

(v)  Despite the accident, all the family members have been trying their very best to cope with it and help one another.  After all, there has been improvement but it still affects them substantially in their daily life.

(vi)    Last, but not least, it is true that 11(b) is not mentioned in medical evidence.  However, it is equally true that the same is also not contradicted by any of the medical evidence. Such proposition has been mentioned in the Wife’s witness statement since December 2006 and I agree to accept the Wife as a witness that can be relied upon, I therefore also accept it on balance.

13.With the above findings, I then move to the assessment.

PSLA

14.Both Mr. Law and Mr. Hemmings had a slight disagreement as to whether the injury suffered by the Wife belonged to the “serious” or “substantial” category.  Both of them submitted a number of cases assisting me in awarding suitable damages to the Wife under PSLA.  Mr. Law said $1.08 m and Mr. Hemmings, not exceeding $0.54 m.

15.Having accepted that there has been no exaggeration on the part of the Wife, I agree to accept that her injury should come under the substantial category in light of the physical, mental and psychological injury suffered by her.  I further find her extent of injury similar to those of the victim in Ngan Man Yuk suing Ho Chung Keung, her husband and Next Friend and Lau Kwan Him and Another, HCPI 1263/2003, Master Hui, 28 February 2005, except that the Wife did not suffer from cognitive deficits in terms of memory and executive function.  Nonetheless, having taken into account of the claim for housekeeping ability as part of PSLA, I will award a sum of $800,000 to the Wife under this head.

Pre-trial Loss of Earnings and MPF

16.The parties agreed that the average monthly income of the Wife was $12,448 per month before the accident.  At the hearing, the Wife told me that she was an average staff and would expect an annual increment of her salary by a few percentages each year.  I agree to accept it on balance.  On that basis, Mr. Law suggested me to take $13,130 as a basis an average.  I respectfully adopt the same.

17.Since the Wife will not be able to return to work, even one sedentary in nature, I will grant her a pre-trial loss of earnings of $687,800 [$13,130 x 60 months - $100,000 (receipt of salary)].  In addition, 5% for loss of MPF contribution will be $34,390.

18.Hence, there is an award of $722,190 under this heading.

Post-trial Loss of Earnings and MPF

19.The Wife, on oath, told this Court that she probably would retire at the age of 60.  I accept it.  She was injured at 33, and now 38.  I agree with Mr. Hemmings that a multiplier of 13 is appropriate as in the case of Tse Yin Cheong [1986] HKLY 423.  I therefore award her the sum of $2,150,694 ($13,130 x 12 x 13 x 1.05) for future loss of earnings and MPF.

Handicap in the Labour Market

20.Since I have allowed full compensation under her post-trial loss of earnings and MPF, there is no compensation of her handicap in the Labour Market in my assessment.

Expenses for Engaging Domestic Helper

21.Mr. Law tried to ask for $30,000 for the domestic helper because half of the time spent 1 year after the accident was accident-related. I disagree and prefer the argument of Mr. Hemmings, namely, it was a “pre-existing” expense and ought not to be recoverable from the Defendant.

Medical Expenses, Equipment, Consumables and Travelling Expenses

22.Both Counsel have kindly agreed certain heads of claims, $4,010 for medical expenses, $1,442 for equipment, $2,450 for consumables and $18,254 travelling expenses.  I so order the sums totalling $26,156.

Tonic Food and Loss of Property

23.The Wife claimed $30,000 tonic food.  She also claimed $9,170 loss of property during the accident.  The Defendant accepted only $5,000 and $4,470 respectively.  To these disputes, I will award $15,000 and $9,170 to the Wife.  It is because $30,000 tonic food is reasonable in the circumstances but the same is to be shared by the whole family.  As to the earnings and necklace lost by the Wife, I accept her case because I have generally find her a reliable witness.

Loss of Housekeeping Services

24.But for the accident, the Wife will continue to work and hire the domestic helper for the household chores. As I have allowed full compensation to her under the aforesaid 2 head of loss of earnings and MPF, she should be able to hire a new maid to help in this respect.  I therefore grant no compensation under the loss of housekeeping services.

Future Medical Expenses and Travelling Expenses

25.I agree to accept the Wife’s case in the future medical expenses to be incurred.  On top of the $40,000 laser therapy and $8,000 future travelling expenses agreed by the Defendant, there are 4 future joint replacements at $100,000 each together with $10,000 follow up treatment.  They therefore amount to $458,000 in total.

Summary

26.In summary, I award the followings to the Wife.

		$
(a)	PSLA	800,000
(b)	Pre-trial loss of earnings and MPF	722,190
(c)	Post-trial loss of earnings and MPF	2,150,694
(d)	Handicap in labour market	-
(e)	Expenses for engaging domestic helper	-
(f)	Medical expenses, equipment, consumables and travelling expenses	26,156
(g)	Tonic food and loss of property	24,170
(h)	Loss of housekeeping service	-
(i)	Future medical expenses and travelling expenses	458,000
		4,181,210

Interest and Costs

27.The Wife will be entitled interest on PSLA at 2% per annum from the date of Writ herein until today.  As to pre-trial loss of earnings and MPF as well as special damages under paragraph 26(f) and (g) above, interests are to be calculated from the date of accident at half of the judgment rate thereon per annum until today as well.

28.The Wife will also be entitled to have her costs of the Assessment, including all costs reserved and Certificate for Counsel on 3 and 4 September 2008, recovered from the Defendant, on High Court scale and a party-and-party basis, to be taxed if not agreed.  Such costs order nisi will become absolute within 14 days from today.

Mr. Dennis Law instructed by Messrs. W.K. To & Co. for the 1^st Plaintiff.

Mr. John Hemmings instructed by Messrs. Hosenally Neo for the Defendant.