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

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

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

Date of Hearing :   8 and 16 May 2008

Date of Judgment  :   31 October 2008

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

ASSESSMENT OF DAMAGES (2): THE HUSBAND

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

The Husband

1.I refer to the background of this case as set out in the Assessment of Damages (1): the Wife.

2.The Husband was aged 42 at the time of the accident, and now 47.  He eye-witnessed the same whereby the Wife and the Younger Son were seriously injured.  Nonetheless, he himself also suffered as a result.

“ 2.  ……His wife, and younger son sustained severe injury whereas he himself had no physical injury at all.  However, he developed insomnia, crying spells, irritability, nightmares, loss of interest, suicidal idea, decreased appetite and weight loss after the accident.  He had recollection of the scene in dreams.

3.  A diagnosis of Depressive episode was made.  He was prescribed medications.

4.  He was subsequently followed-up on 3.11.03, 29.12.03, 1.3.04 and 13.5.04.  His mental condition was noted to have significant improvement.  Permanent disability is not expected.

5. ……”

(Medical Report of Kwai Chung Hospital dated 11 July 2005)

Credibility of the Husband

3.The Husband gave evidence for himself.  As the Wife, I also find him an honest witness.  On balance, I agree to accept his case generally except the account of his monthly income.

PSLA

4.Under pain, suffering and loss of amenities, Mr. Law asked me to grant a sum of $500,000 to the Husband when Mr. Hemmings suggested the region of $250,000.  In this respect, I observe that, in the joint psychiatric report dated 1 August 2006 prepared by the parties’ experts, they opined that:

“ 30.   ……

30.1.    He has suffered from posttraumatic stress disorder ……

30.2.    He has difficulty adjusting to the aftermaths of the accident including his wife’s and son’s disability.  He is depressed and worried by their problems.  The depressive symptoms that he is having consist of depressed mood, irritability, feelings of difficulty coping, pessimistic ideas, lack of confidence and motivation, lack of interest in sex and activities, and sleep problems ……

31.   His mental condition was at its worst for a few months after the accident.  He was on the verge of nervous break-down.  His mental condition has shown improvement with time and after psychiatric treatment.  He is displaying residual symptoms of posttraumatic stress disorder currently ……

32.   He is mentally capable of returning to work at the pre-accident job.  His working efficiency is affected by the lack of confidence, difficulty concentrating, bad memory and tremors of hands.  His work is also affected by his decreased motivation, decreased drive for social interaction and his irritability.  The appropriate period of sick leave from a psychiatric point of view is one year from the date of the accident.

33.   ……He will continue to suffer from residual mental problems for a few years as the accident left a mark on his mind and some of his wife’s and son’s disability are permanent.

34.   ……

35.   The marital relationship is affected by the accident.  He has difficulty communicating with his wife due to his worries and mental problems …… The couple need to be helped to improve their communication.  They have to be advised on ways to overcome their emotional disturbances together.  Their sex problem will also be helped in the marital therapy …… It is likely that the marital relationship will improve after the treatment ……

36.   ……

37.   We believe that the degree of permanent impairment to the whole person of Mr. LAM is about 7%.  The loss of earning capacity is estimated to be about 7% after completion of the recommended psychotherapies.”

5.By comparing these joint expert opinion with facts of the authorities submitted by both Counsel, I consider that Tsui Ho (2^nd Plaintiff) v The Incorporated Owners of Albert House & Ors, HCPI 828/1997, Suffiad J, 17 September 2001, bears quite some similarities with the Husband’s case except that the victim died there in the accident and impairment of the whole person was 30% before treatment, and 20% after treatment.  In my view, $450,000 is an appropriate sum in the present case.

Loss of Society

6.It is indisputable that the whole family relationship has been affected by the accident and injury.  The Husband has become irritable and withdrawn.  Both parties referred me to the case of Cheung Wai Ping v Chan Yam Yee, HCPI 668/2005, Deputy High Court Judge Muttrie, 8 February 2007.  The Husband is in a less severe situation than the victim in the authority.  In my observation, he still maintains strong bond with the Wife and his sons.  Both experts are expecting some improvement on him after treatment to be provided.  I agree with Mr. Hemmings that $50,000 is appropriate in the circumstances.

Pre-trial Loss of Earnings

7.Parties had quite a dispute over the monthly income of the Husband.  He was a jewellery craftsman.  He did not have much IRD or personal record to keep track of his income.  Half year prior to the accident, he became a “freelancer” and started to take private orders from customers.

8.The Husband could only give an estimate as to his income.  Nonetheless, under the cross-examination of Mr. Hemmings, the estimate was proved not to be so reliable.  It was $15,000 in his original statement of damages.  When it came to his witness statement, it became no less than $20,000 to $30,000.  When the Husband was in the witness box, he said that it ranged from $10,000 to $30,000 with an average of $25,000.

9.The difficulty faced by the Husband is understandable.  He did not have much written proof.  His monthly income varied because of his job nature.  He could only give an estimate.  His mental condition was bad and unstable because of the injury suffered by his family.  That probably explains how we have different figures at different stages.  While such “inconsistencies” does not turn him into a dishonest witness, it does make him unsafe to be relied upon in such aspect.  On balance, with the evidence before me, including the monthly income and expenditure account of the family at the material times, I find that he was earning an average monthly income of about $20,000.

10.Both experts agreed that a period of 12 months sick leave was appropriate for the Husband.  After it, he was able to return to work.  However, due to his mental state, lack of concentration and tremors of hands, he could only perform less sophisticated jobs earning about $9,000 per month.  I accept these facts on balance.

11.With the above findings, the pre-trial loss of earnings of the Husband is:

(a)	$20,000 x 12   =	$240,000
(b)	($20,000 - $9,000) x 46   =	$506,000
		$746,000

Against such calculation, Mr. Hemmings asked me to deduct the disability allowance. The Government paid the Husband the sum of $168,657 from August 2003 to September 2007. Upon thoughts, I decline to do so.  Mr. Law has provided an answer to it from an extract from Butterworths Hong Kong Personal Injury Service, 2007 at II 952

“The Hong Kong Court of Appeal, in having to decide if a particular benefit should be taken into account, has also had to confront the same problem of whether the basic rule or the exceptions should apply.  In Tang Kwong Chiu v Lee Fuk Yue, the Hong Kong Court of Appeal, in considering whether public assistance payments should be deducted, said:

The two principles are poor bed follows yet both have reference to the present situation.  It is not unreasonable to accept that the public assistance payments put the plaintiff, as between the accident and the date of the trial, in much the same financial position as he would otherwise have been.  Strictly speaking, the payments may not have been made as a direct result of the accident; but had it not been for the accident the plaintiff would have continued his work and would not have needed assistance.  On the other hand, the payments are undoubtedly of a benevolent nature.

We do not see how the dilemma can be solved by logic.

In the end, the court resolved the ‘dilemma’ by reference to public policy which indicated that the trend was against the deduction of such benefits.”

Future Loss of Earnings

12.Both Counsel had also a dispute in the future loss of earnings for the Husband.  Mr. Law persuaded me to award $1.8 m when Mr. Hemmings told me not to grant anything.  The crux lies on the impact of the sufferings by the Husband on his work.  Upon careful thoughts, I agree with Mr. Law in principle.

(a)   Both experts agreed that there were permanent impairment to the Husband.

(b)   The Husband is a jewellery craftsman and requires fine workmanship with hands.

(c)   It is not disputed that he is dependant on sleeping medicine, at a dose higher than usual one.  It causes tremors of hands affecting his craftsmanship.  Having considered the join medical opinion as well as the demonstration by the Husband before me at the hearing, I agree to accept his case.

13.In my assessment, the future loss of earnings for the Husband is $1,320,000 [($20,000 - $9,000) x 12 x 10].

Handicap in Labour Market

14.I will make no award to the Husband under this head as he is self-employed and that sufficient compensation has been made to him for future loss of earnings.

Medical and Travelling Expenses

15.Medical expenses of $270 and travelling expenses of $1,400 were agreed.  I so order accordingly at a total of $1,670.

Tonic Food

16.The Husband claimed $10,000 tonic food.  I accept it on balance and consider it reasonable in the circumstances.

Future Medical Expenses and Travelling Expenses

17.There is only one area of dispute in the Husband’s claim for future medical expenses and travelling expenses, namely, whether the psychiatric treatment should be made in private sector, costing $50,000 when the same may also be obtained in public sector at a lower costs of about $4,800.

18.At the hearing, when such dispute was explained to the Husband, he told me that, in his experience, the service at public sector took 10 odd minutes each only and was not helpful at all.  With respect to the service at public sector, I accept that the Husband’s request for service at private sector is a reasonable one and will allow them accordingly.

19.Hence, I will allow the Husband:

(a)	future medical expenses	$102,500
(b)	future travelling expenses	$3,150
		$105,650

Loss of Congenial Employment

20.On balance, I agree to accept that the Husband was a jewllery craftsman with fine skills before the accident.  After that, he has been unable to do sophisticated jewellery any more.  There will be loss of congenial employment in his case.  With the assistance from Lee Kit Ha v KMB, HCPI 539/2000 and Wu Wai Wah v Fung Kwong Hung, HCPI 256/2006, I find the claim for $120,000 reasonable in the circumstances.

Conclusion

21.In conclusion, I will allow the claims of the Husband:

		$
(a)	PSLA	450,000
(b)	Loss of society	50,000
(c)	Pre-trial loss of earnings	746,000
(d)	Post-trial loss of earnings	1,320,000
(e)	Handicap in labour market  -	1,670
(f)	Medical and travelling expenses
(g)	Tonic food	10,000
(h)	Future medical and travelling expenses	105,650
(i)	Loss of congenial employment	120,000
		2,803,320

Interest and Costs

22.The Husband will further have interest on PSLA and loss of society at 2% per annum from the date of Writ herein until today.  Interests are further calculated at half of the judgment rate per annum until today for the pre-trial loss of earnings, medical and travelling expenses as well as tonic food.

23.There is an order nisi that the Defendant shall pay costs of the Husband in the Assessment, including all costs reserved and Certificate for Counsel on 8 and 16 May 2008, on High Court scale and party-and-party basis, to be taxed if not agreed.

Mr. Dennis Law instructed by Messrs. W.K. To & Co. for the 3^rd Plaintiff.

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