Yu Wai Kan v. Law Cho Tai
Read the full judgment text of HCPI 62/2010 on BabelCite. This High Court CFI judgment was delivered on 11 May 2011.
1. On 16 June 2008, the Plaintiff was injured in a traffic accident (“ Accident ”). On 12 February 2010, he commenced the present proceedings to claim for damages for personal injuries arising out of the Accident. The Defendant denies liability.
Cited by 18 cases · Cites 12 cases
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HCPI 62/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 62 OF 2010
BETWEEN
Coram : Before Master Marlene Ng in Chambers (open to the public) Date of Hearing : 22 February 2011 Date of Handing Down Decision : 11 May 2011 ______________ DECISION ______________ I. BACKGROUND 1.On 16 June 2008, the Plaintiff was injured in a traffic accident (“Accident”). On 12 February 2010, he commenced the present proceedings to claim for damages for personal injuries arising out of the Accident. The Defendant denies liability. 2.The Plaintiff by his Statement of Damages (“SOD”) and Revised Statement of Damages (“RSOD”) filed on 12 February and 24 September 2010 claims damages in the respective sum of HK$2,650,020.00 and HK$2,705,070.00, but the Defendant argues that any damages that may be awarded should be much reduced: 3.In support of his claim, the Pla
intiff has served his own 2 witness statements and the witness statement of Mr Yu Ronald Hooven (“Mr Yu”) who operates a private investigation business known as Intellect Consultancy Limited (“ICL”). 4.The parties have obtained a joint orthopaedic expert report dated 5 November 2009 (“Jt Ortho Report”) from the Plaintiff’s expert Dr Johnson Lam (“Dr Lam”) and the Defendant’s expert Dr Chun Siu Yeung (“Dr Chun”), and a joint psychiatric expert report dated 23 June 2010 from the Plaintiff’s expert Dr Peter Ho (“Dr Ho”) and the Defendant’s expert Dr Kieran Singer (“Dr Singer”) together with a letter of the same date from Dr Singer (collectively, “Jt Psy Report”). 5.The present action was settled and concluded on 14 December 2010 with the Defendant agreeing to pay HK$850,000.00 (inclusive of interest) in full and final settlement of the Plaintiff’s claim (“Settlement Sum”), and to pay the Plaintiff’s costs of the action. But the parties disagree over whether the High Court or the District Court scale of costs is applicable (“Issue”). Such disputed Issue came before me for argument on 22 February 2011 (“Hearing”). 6.I now turn to three preliminary matters. First, both Mr Chung, solicitor for the Plaintiff, and Ms Cheng, solicitor for the Defendant, confirm that for determining the Issue I can ignore the defences raised in the Defence and assume the Defendant is fully liable to the Plaintiff. 7.Secondly, by disclosing (and thereby waiving legal professional privilege in respect of) the written advice dated 8 October 2010 (“Advice”) by the Plaintiff’s counsel (“Counsel”), Mr Chung is content to have the court consider the contents of the Advice for the purpose of determining the Issue. However, Ms Cheng submits that the Advice does not lend support to the applicability of the High Court scale of costs because:
For (a) above, I find the Plaintiff’s subjective view irrelevant since the court is concerned with whether there is a “reasonable prospect” of obtaining an award in excess of the District Court jurisdiction (see Lai Ki v B+B Construction Company Limited & others [2003] 3 HKLRD 192, 197). For (b) above, whilst I agree that Counsel’s opinion cannot be definitive, Ms Cheng in paragraph 11 of her written submissions in fact concedes that Counsel’s assessment of the quantum of damages in the Advice, “if indeed reasonably assessed and advised, may be a guideline [in] assessing what should be the reasonable claim amount at the time when the proceedings [were] commenced”. Mr Chung does not dissent from such approach, and I too have no quarrel with the proposition save that the court is not bound to treat Counsel’s assessments for the various heads of damages as ceiling or floor figures for the purpose of determining the Issue. 8.Thirdly, Ms Cheng criticises the assessment of the quantum of damages in the Advice in that (a) the most optimistic scenario put forward by Counsel “is not very often the reasonable assessment” and (b) throughout the Advice Counsel has not stated whether she prefers Dr Ho’s or Dr Singer’s opinion “on any reasonable or credible evidential basis”. Given that the Advice sets out Counsel’s opinion on the general issues of liability, quantum and evidence and not specifically on the Issue, I am not persuaded that the Advice is inherently defective by putting forward an optimistic scenario or by not choosing between Dr Ho’s and Dr Singer’s opinion. Ultimately, the question is whether the Plaintiff has a reasonable prospect of recovering damages in excess of the District Court jurisdiction, and the Advice is but one of the materials to be considered. II. LEGAL PRINCIPLES 9.I rely on the relevant legal principles which I have set out in paragraphs 8-9 of my decision in Lee Yau Wai v Yeung Kam Wing HCPI 281/2009 (unreported, 29 March 2011). 10.Ms Cheng submits that (a) the amount of damages pleaded in the SOD is grossly inflated “when compared with the [Settlement Sum]” possibly because the Plaintiff has not reasonably assessed the amount of recoverable damages prior to receipt of the Advice, and (b) this is borne out by his failure to explain why he accepted the Settlement Sum notwithstanding Counsel’s estimation of damages in the sum of HK$1,179,892.40 and the absence of any material change in the available evidence between the commencement and the settlement of the present proceedings (although Ms Cheng surmises it is possibly due to the Plaintiff’s appreciation of the risks of litigation). 11.Plainly, the Plaintiff’s reasons for accepting the Settlement Sum are matters covered by legal professional privilege, hence the Defendant’s criticism of his failure to disclose such reasons or the Defendant’s surmise as to such reasons are not only speculative but also impermissible. Further, they fly against the principles in Wong Chi Ho Jacky v Poon Yuk Shan HCPI 910/2002, DHCJ Jat SC (unreported, 7 May 2004) which make clear that one should not look at the eventual settlement amount. After all, the relevant time for consideration is the time when the writ was issued, and there may be all kinds of reasons why a plaintiff may wish to accept a sum lower than what his claim may be considered worth in order to settle the claim. Ms Cheng has therefore sensibly abandoned such arguments at the Hearing. 12.I now turn to the Plaintiff’s personal/medical history, which is a constant feature that underlies Ms Cheng’s submissions that the relevant scale of costs should be the District Court one. III. PLAINTIFF’S PRE-ACCIDENT HISTORY 13.The Plaintiff’s story starts from his teens when he was incarcerated for fighting, assault, illegal-racing and drug-related offences. But he turned a new leaf by taking up studies in prison. After his release, he went to night school, graduated from university, and then worked as a social worker for a NGO. In 2002, a drug-dependent client committed suicide, and he was blamed by the family for being on leave and out of contact. He became depressed, thought he caused the death of the client, and attempted suicide. He was admitted to Prince of Wales Hospital (“PWH”) for 2-3 weeks, and was first seen at Li Ka Shing Psychiatric Clinic (“Psy Clinic”) in September 2002 for depressive mood. He was diagnosed to suffer from bipolar affective disorder, and was maintained on mood stabilisers and regular psychiatric follow-up. 14.The Plaintiff resigned but worked intermittently as a social worker for different NGOs. He could not cope. 4-5 months after discharge from PWH he became very elated, required little sleep, was irritable and got into fights. This elation period lasted several months. After he improved, he changed to work as a part-time taxi-driver as from 2004, and he later became a full-time taxi-driver. His mood was better with taxi-driving. He had a regular lifestyle, his stress got less and he further improved. Eventually in 2005, he and his girlfriend (now his wife) bought a taxi for him to maintain his stable and stress-free living. His psychiatric illness further improved, and he did not have any psychiatric follow-up for 3 years since April 2005. 15.The Plaintiff worked happily as a taxi-driver. In April 2008 (ie 2 months before the Accident) whilst preparing for his wedding in the following month he got tense and had insomnia, so he returned for psychiatric follow-up. He could sleep again after his psychiatrist put him back on mood stabilisers, but he stopped taking certain medications due to headache and head discomfort. His mood condition improved after adjustment of his medications at the psychiatric follow-up on 2 June 2008. His mental condition stabilised upon drug treatment, and he continued to work as a taxi-driver until the Accident. At the time of the Accident, he was a night-shift taxi-driver from 5pm to 3am for 6 days a week. 16.The Plaintiff lived with his wife and mother. Prior to the Accident, he was cheerful, sociable and had many friends. His interests included driving his own car and motorcycle, driving with friends, swimming and playing ball games. He went to Shenzhen and Thailand once a year. He drank socially, but no longer took illicit drugs or smoke after his teens. IV. ACCIDENT 17.The Plaintiff claims that his taxi was hit by another vehicle from the left and as a result he hit his head against the right window glass (which was not broken) and hit his waist against the right door, and he also had a painful jerk at his neck. He told Drs Ho and Singer that at the time he was not expecting any collision; his mind was vacant as he saw bright lights rushing towards him. After the collision, he experienced pain in the neck, head and waist, had dizziness and vomited a few times, but did not lose consciousness. He told Drs Ho and Singer that when he got out of his taxi and saw there had been a collision, his mind went “rigid” upon realising that he had been threatened with serious injury. V. INJURIES AND TREATMENT 18.After the Accident, the Plaintiff was sent to the accident and emergency department of Ruttonjee & Tang Siu Kin Hospital. On examination, there was tenderness over the neck and right side of the back with muscle spasm but no fracture. He was transferred and admitted to the orthopaedic ward of Pamela Youde Nethersole Eastern Hospital (“PYNEH”) on the same day. 19.The Plaintiff complained of right sided neck/scapular and right waist pain, contusion of the back, shoulder and right temple, and right upper limb numbness. On examination at PYNEH, there was tenderness over right side of neck (or “tender pain” at back of neck) with limited range of neck movement, and “pain tender spasm” on right-sided back with no upper/lower limb neurological deficit or fracture. 20.Conservative treatment with soft neck collar and physiotherapy was started. There was residual neck and right waist pain with slight improvement (ie decrease of neck/back pain and improvement of right upper limb numbness). There was no vomiting or dizziness. 21.The Plaintiff complained of worsening of psychiatric symptoms during hospitalisation, eg headache, insomnia, unstable mood, restlessness, scalp tension, nightmares with broken sleep, and flashback experiences during daytime. He was noted to be anxious, irritable and labile in mood, but there was no violent behaviour. According to the Jt Psy Report, he was emotionally disturbed; he shouted/scolded and felt the orthopaedic ward was very noisy. 22.On 18 June 2008, the Plaintiff was seen with his wife by a psychiatrist at PYNEH’s orthopaedic ward. He complained of “seeing” the Accident re-enacted with a lot of bright lights flying towards him when he closed his eyes. He had mood disturbance, could not sleep, felt irritable and could not control himself. He was particularly irritable towards the nursing staff for not being able to get him the drugs he had been using for the bipolar disorder on time. Upon assessment, his mood was noted to be mildly irritable, not depressed and not elated. He had coherent/relevant speech and no psychotic symptoms or suicidal ideas. He had good insight and agreed to adjustment of the psychiatric drugs for better mood stabilisation. He was assessed to have fluctuations of mood symptoms and some features of post-traumatic stress reaction after the Accident, and was started on his pre-Accident drugs plus probably sleeping pills or tranquilisers. 23.A few days after admission, the Plaintiff was sent to PWH to see his former psychiatrist who adjusted his medications before he returned to PYNEH. He reported forgetfulness, remained irritable, and experienced minor flashbacks with nightmares. His mental state remained the same, and he continued to be seen by a psychiatrist at PYNEH. 24.After drug treatment in ward, the Plaintiff’s medical condition was stable, and his mood was not depressed or elated. His speech was coherent/relevant, not fast and not too loud. He reported to have reduced irritability/tension and improved sleep, but still complained of scalp tension, nightmares and flashback experiences during daytime. The psychiatrist’s impression was “bipolar affective disorder in remission” and “adjustment reaction with PTSD features after the Accident”. 25.On 20 June 2008, the Plaintiff was re-assessed. He still had mild flashbacks, anxious feelings and nightmares, and his psychiatric medications were adjusted. He declined psychiatric ward admission, so support and counselling were given at the orthopaedic ward. The Plaintiff and his wife preferred to have further follow-up at the Psy Clinic after discharge from PYNEH, so he was referred to the Psy Clinic for psychiatric management of his bipolar affective disorder with scheduled follow-up on 23 June 2008. 26.By 21 June 2008, the Plaintiff’s neck discomfort was mild with no upper limb neurology. His psychiatric symptoms improved, and there was no dizziness or auditory hallucination. On 23 June 2008, he still had right-sided neck discomfort and right upper limb numbness with no upper limb neurology. His upper limb power was tested grade 5. 27.The Plaintiff was discharged home on 27 June 2008. His physical state had improved slightly, and he was referred to PWH’s orthopaedic specialist clinic (“Ortho Clinic”) for follow-up. Upon his request, PYNEH also referred him to PWH for clinical psychological evaluation/testing and to social worker for financial assistance. 28.On 30 June 2008, PYNEH referred the Plaintiff to outpatient physiotherapy for treatment of his neck/back problems. When he was first assessed at the Ortho Clinic on 3 July 2008, he complained of neck/back pain, pain on prolonged sitting, leg numbness, and mild tenderness at right side low back for the whiplash injury. On examination, there was no specific local tenderness over cervical and lumbar spine. The neck was non-tender with full range of movement, but there was right thumb and right index finger sensory numbness with no motor or other sensory deficit. He was referred to outpatient physiotherapy and occupational therapy for treatment of the neck/back problems. 29.The Plaintiff had physiotherapy once every 2 weeks for his neck and low back pain, and thereafter he continued with physiotherapy for his waist. He claims there was no significant improvement and he still had intermittent pain. 30.In July 2008, the Plaintiff experienced anergia with decrease in volition, kept to bed, and lost appetite/weight. He had impaired sleep, low/depressed/anxious mood, retardation, and agitation with flashbacks and nightmares of the Accident. He was treated with anti-depressants and mood stabilisers with steady improvement. On 7 July 2008, he was referred to the clinical psychologist for psychology follow-up. The referral letter notes that his bipolar disorder was in fair remission, and he had minor flashbacks and nightmares of the Accident. Pursuant to the referral, the Plaintiff saw the clinical psychologist. 31.On 11 August 2008, the Ortho Clinic noted the neck/back pain improved a bit with no upper/lower limb weakness/numbness and no sphincter problem, there was back pain on prolonged sitting, right side myotomes from C5-T1 tested grade 5-, and jerks were normal. The physiotherapist reported gradual decrease of low back/neck pain (which by then was mainly stretch tightness over right neck/back muscle) and full cervical movement with stretching tightness only and no neurology. 32.On 19 September 2008, the Plaintiff reported mild improvement of his neck/back pain with no limb weakness/numbness. After a course of physiotherapy he was discharged with no improvement and was then only on analgesics. At the orthopaedic follow-up on 22 December 2008, he reported the neck/back pain improved by 50% with no limb weakness/ numbness. Examination revealed mild tenderness over the right paraspinal muscle, but full range of movement of the cervical spine with intact sensation, full motor power of bilateral upper/lower limbs and normal reflexes. The Plaintiff claims he was unable to resume duty due to right-sided neck pain on rotation of the neck. He was treated with medications, and was referred to occupational therapy for job assessment and work hardening exercises. 33.About a few months post-Accident, the Plaintiff became high and irritable, and got into fights with a minibus driver whom he thought was not driving well and with a taxi-driver for taking a circuitous route. Such episodes are similar to those pre-Accident when, say, on one occasion he assaulted a policeman and on another occasion assaulted another patient at Baptist Hospital. The Plaintiff felt elated and full of energy, and was told by his psychiatrist to control himself. His psychiatrist increased his medications and frequency of attendance. After a time he became depressed, lost energy, had a heavy head and feeling of insects biting, and had poor concentration and memory. He wanted to reduce the medications but his psychiatrist insisted on increasing them. His mental state persisted. He wanted to start driving again but had fear of driving. He also had tremor of hands, sweating and flashback of the Accident especially at road junctions. 34.In February 2009, the Plaintiff turned energetic again. Anti-depressants were withdrawn and he was started on lithium carbonate in April 2009. He was high for 3 months when he got involved in fights in 2009, and was managed with readjustment of drugs. 35.When the Plaintiff was seen at the Ortho Clinic on 16 February 2009, he reported his neck pain improved by 60%. Examination revealed reduced neck rotation and lateral flexion to the left side, but upper limb power and sensation were normal. He claims he could not drive taxi due to neck stiffness and inability to turn to see the rear view. 36.PWH referred the Plaintiff to Rehabaid Driver Rehabilitation Specialty Service (“Rehabaid Service”) for advice on his ability to drive. At the assessment, his chief complaint was right neck and shoulder muscle spasm (especially upon quick and jerky movement of turning to the right side) with impaired sitting tolerance (right low back paraspinal muscle pain and right lower limb numbness after sitting for 15 minutes). Physically, limbs range of motion was full and dynamic lifting capacity was up to 12 kg. He could demonstrate competitive work rate on multi-level reaching physical demands, however 6/10 exertion pain was reported. 37.In PWH’s OT Rehabilitation Outcome Report dated 4 March 2009, the Plaintiff reported being not confident to resume duty as a taxi-driver. He claimed to be phobic about driving after the Accident, had feeling of panic when watching news about road traffic accidents involving taxis, had nightmares about the Accident, and was preoccupied with bad experiences when staying at home. The therapist concluded that his work capacity marginally matched the job demands, that he could resume light duty or certain work tasks if special arrangements were possible, and that he was ready to take up a new job even though he could not at that time resume the previous one. The evaluation results showed he should be physically able to cope with his previous job demand, but his psychological readiness in returning to drive was questionable in view of his medical history and his verbal reports of residual psychological problems. On discussion, the Plaintiff still felt uneasy and stressful towards driving and was unable to concentrate as good as before. “For the good sake of road safety to passengers and [the Plaintiff] himself, proper psychological assessment on his readiness to drive is necessary before resuming driving job.” The Plaintiff was discharged from occupational therapy after the assessment session. 38.On 25 May 2009, the Psy Clinic gave the Plaintiff a reference letter certifying that he suffered from bipolar disorder and was maintained on medications. “He was involved in [the Accident] in 2008 and still has anxiety while driving”. 39.On 1 June 2009, PWH’s department of orthopaedics and traumatology certified that the Plaintiff was “medically fit to drive but requires further driver assessment”, and upon assessment his neck pain and condition were static. On 9 June 2009, he was seen at the Psy Clinic complaining of neck/back pain, nightmares and being very anxious when driving, but with no avoidance or anxiety when riding on vehicles as a passenger. His mood was low in general as he worried about being jobless. 40.According to the Driver Assessment Report dated 16 July 2009 by the Rehabaid Service, the Plaintiff had full range of movement in his neck and trunk. He reported experience of tightness and mild pain when performing right neck rotation and moderate back pain after sitting for 20 minutes. For on-road assessment, he was competent in the tests within the Polytechnic University campus, but on arrival at Tsimshatsui “he reported …… psychological distress and anxiety while driving. As per his request, the assessment was terminated. ……” The Plaintiff claims that during the assessment he could not think/concentrate, had great fear, could not drive, lost all confidence, and had pain in neck when turning his head. He could not function after 5 minutes of the test (normally lasting 10 odd minutes). 41.The assessor concluded that the Plaintiff should not drive a vehicle until his psychological problem was resolved. When the Transport Department informed him of the results on 7 September 2009, the officer told him he was psychologically unfit to drive. He became worried about his unemployment as a result of the Accident. He continued to have mood fluctuations associated with failure of the driving assessment, suspension of his driving licence, unemployment and his neck/back problem. Overall, the Plaintiff was impressed to be suffering from anxious/depressed mood symptoms. 42.Cognitive behaviour therapy was rendered, and he was encouraged for exposure and desensitisation therapy. He was also advised on structuring his daily activities. The Plaintiff saw PWH’s clinical psychologist Dr Alice Wai-yee Kwok (“Dr Kwok”) for 30-45 minutes every 3 months for 4-5 times. He felt better talking to her, but was still low. 43.When the Plaintiff was seen by PWH’s psychiatrist in November 2009 with his wife, he looked calm and passive with mild frowning. He complained of headache. His wife reported he slept most of the time during the day and had broken sleep at night. He was given medications. On 23 November 2009, PWH’s consultant psychiatrist Dr Chi-ming Leung (“Dr Leung”) confirmed that the Plaintiff’s then mental condition would be liable to cause his driving to be a source of danger to the public. 44.When the Plaintiff was seen at the Psy Clinic on 12 January 2010, he complained of neck/back pain and also reported having nightmares occasionally. His condition remained similar over the past few months. He would like to resume his previous job as a taxi-driver, but was advised by the driving instructor not to resume driving due to his anxiety. As a result, he faced financial stress. His mood was low in general, and he harboured a sense of uselessness. Overall, the Plaintiff was impressed to be suffering from anxious and depressed mood symptoms. Cognitive behaviour therapy was rendered. He was advised on structuring his daily schedule and participating in some meaningful activities. 45.When the Plaintiff was seen at the Psy Clinic in February 2010 with his wife, he looked alert with normal mood. His wife reported he was mentally stable. He was prescribed medications until the next appointment. On 13 April 2010, Dr Kwok noted that the Plaintiff’s condition remained more or less the same over the past 2 years. His mood was low in general, and he felt anxious while driving. 46.The orthopaedic surgeon who managed the Plaintiff’s case since the Accident recently referred him back to the Rehabaid Service for re-assessment of his overall fitness to drive. He was regarded as mentally stable and mentally fit for the re-assessment, but the results are not known. VI. POST-ACCIDENT CONDITION 47.As explained above, the Plaintiff lives with his wife and mother. Previously when he was emotionally stable (which was most of the time) his relationship with his mother was good. After the Accident, they seldom talk and their relationship is “so-so”. The Plaintiff admits that when he was previously emotionally unstable, he had beaten his girlfriend (whom he has known for 5-6 years before they got married about a month before the Accident), but their relationship turned good when he became mentally stable and began working as a taxi-driver. After the Accident, he often vented his temper on his wife due to his fluctuating mood, and their relationship is lukewarm. 48.The Plaintiff’s daughter was born in April 2009. She was noisy, and one evening when she woke him up with her crying he picked her up and threw her onto the bed to make her stop crying. On the following day, his wife took the baby to live with and be cared for by her mother. The Plaintiff loves his daughter, but does not want to see her as she irritates him when she cries. During holidays he feels lonely when his wife visits their daughter, but even if he visits his daughter with his wife, his right waist becomes painful after holding her for 3-5 minutes and he does not want to see her. 49.The Plaintiff spends most of his time at home, looking for jobs in the papers, lying in bed and resting. He cannot concentrate because of his depression. He often has headaches, and his psychiatric medications affect his memory. He has no motivation to do household chores. He seldom goes out for walks or shopping. At times he watches television or rather has it on, but has no interest in watching. He has low mood and no interest in activities such as socialising. He had some in the summer of 2009 when he was in good mood, eg he played ball games (but avoided heading), swam (but avoided free-style because of difficulty in turning the neck), and went out on boats. In the winter, he became depressed and lost interest. He seldom goes on vacation, but about once in half a year he visits Shenzhen to walk about and eat. He says he has sex with his wife every now and then but has not engaged in sexual activity for a while. His interest in sex has decreased and it is partly due to his back pain. 50.The Plaintiff claims he cannot get work and has no income after the Accident, so his wife has to take up many responsibilities including the family finance and monthly hire purchase payments. His disabilities have created a heavy financial burden, and he has to borrow from the bank and relatives. He still attends the Ortho Clinic every 1 odd month and the Psy Clinic every 2 odd months, and he sees the clinical psychologist every 3 months. VII. JT ORTHO REPORT 51.Drs Lam and Chun agree that the orthopaedic diagnosis is compatible with soft tissue “whiplash injury”. For the neck injury, if he hit his head on the right side glass window, there would be sideway +/– rotational forces to the neck in addition to the classic whiplash mechanism. Dr Lam opines there was soft tissue injury to the back as well, and Dr Chun agrees there was possible minor contusion to right side low back muscles. Dr Chun opines that the soft tissue injuries without fracture or neurological deficit were mild. But in light of the mechanism of injury, the clinical evidence and the progress of rehabilitation, Dr Lam thinks the Accident caused significant soft tissue injury to the neck and back triggering persistent pain in these regions, but there has been improvement after orthopaedic treatment and therapy. 52.At the joint examination on 13 October 2009, the Plaintiff complained of neck pain on right neck rotation and inability to drive because of pain and panic attacks. He also complained of pin-pricking pain at right side low back. He had normal gait/station and no neurological deficit. He could squat fully but complained of right-sided low back pain on getting up. Waddell’s simulation tests were negative. Although there was slight decrease in rotation of the neck to the right, there was no tenderness and active motions were in satisfactory functional range. There was no tenderness or muscle spasm at the right low back, and examination revealed satisfactory range of motion. 53.Drs Lam and Chun agree the Plaintiff’s orthopaedic condition has reached maximum medical improvement. Dr Chun opines the present condition has little signs of the initial injury. Dr Lam accepts the Plaintiff has a satisfactory recovery, but probably has some residual pain and mild stiffness. Both Drs Lam and Chun agree the overall prognosis is good. 54.From an orthopaedic perspective, Dr Chun notes the Plaintiff is independent with his daily activities and can continue sporting activities with no interference with enjoyment of social life, so he assesses the Plaintiff to have 1% whole person impairment. Dr Lam says there will be mild interference with enjoyment of social life (eg some breaks will be required for rest or stretching after activities that increase stress to the back/neck such as prolonged sitting or frequent movement of the neck), and he assesses the neck and back injuries to respectively carry 2% and 1% whole person impairment due to residual pain and mild stiffness. VIII. JT PSY REPORT 55.According to the Jt Psy Report, the Plaintiff’s psychiatric complaints include:
56.At the mental examination of the Plaintiff by Drs Ho and Singer on 4 May 2010, the Plaintiff was alert, in good contact and generally cooperative. His thought processes were well-organised, his speech relevant and coherent, and he gave a good account of himself with prompting. He was oriented for time, place and person with no delusions or hallucinations elicited. His mood was slightly depressed but normal in range, depth and congruity. Dr Ho notes that the Plaintiff often appeared anxious and worried when talking about the Accident or his other problems. 57.Drs Ho and Singer agree that assuming the Plaintiff is a credible historian he meets sufficient criteria for the diagnosis of post-traumatic stress disorder (“PTSD”) and that he also has been suffering from pre-existing bipolar II disorder since 2002 with fair remission upon treatment. 58.Dr Singer opines that (a) the pre-existing bipolar disorder is the main cause of his psychiatric relapse post-Accident and the Accident has only contributed to a minor extent, and (b) the PTSD (which is minor in degree) is caused by the Accident. He says that the lion’s share of the Plaintiff’s post-Accident psychiatric disability is the bipolar disorder which is pre-existing and has a strong tendency to recur with or without the Accident, and without the bipolar disorder a major depressive episode is highly unlikely to occur after the Accident. The only significant feature of the PTSD which is minor in degree is the alleged fear of driving and its persistence is due to delay in getting desensitisation (exposure) treatment. Dr Singer concludes there is little psychiatric disability directly caused by the Accident. 59.On the other hand, Dr Ho opines that there can be some overlap of symptoms between the PTSD and the bipolar II disorder presently in a depressive episode, and the causative factors include the stresses at the time of the Accident, the orthopaedic symptoms after the Accident, and the Plaintiff’s employment/financial problems. He accepts that the pre-existing bipolar II disorder is also a contributory factor. Dr Ho notes that the Plaintiff’s past history of psychiatric treatment indicates a vulnerability factor, but he reportedly had stable condition before the Accident. It seems unlikely that the Plaintiff’s pre-existing bipolar disorder would have suddenly and spontaneously relapsed at that particular point in time without the Accident occurring, and would have persisted without his subsequent physical disabilities and employment/financial problems. 60.There is no dispute that the following factors support the Plaintiff’s credibility: (a) he experienced significant stressors (ie an accident serious enough to threaten life or serious physical injury followed by physical symptoms), (b) he was treated for bipolar disorder since pre-Accident and continued with maintenance treatment, and (c) he reported features of PTSD when seen in June 2008 shortly after the Accident. 61.But Dr Singer considers there is an element of exaggeration:
62.However, Dr Ho considers the pattern of mental symptoms described by the Plaintiff at the joint examination to be reasonably consistent with what the treating psychiatrists have detected. It is rather difficult for a layman to give an account of his psychiatric symptoms with such degree of consistency if they are fabricated. Further, the Plaintiff denies any serious actual suicide, auditory hallucinations or paranoid delusions, and he reports independence in self-care and personal hygiene. He also does not give absurd answers to impress the examiners during cognitive testing. 63.As regards physical pathology from the Accident, Dr Ho notes that soft tissue injuries are difficult to be demonstrated by ordinary laboratory investigations, and even Drs Chun and Lam do not explicitly say the Plaintiff has exaggerated his disabilities. The Waddell’s tests are all negative. Given his pre-existing psychiatric illness and vulnerability, it is unsurprising for there to be more significant psychological reaction after encountering the stresses related to the Accident and its aftermath, and his psychological distress after the Accident is likely to be a significant factor that can aggravate and prolong his physical symptoms. Overall, he does not complain of severe physical disability such as inability to walk or difficulty in his self-care requiring supervision from others. Apparently the Plaintiff has turned a new leaf after his release from prison, so his past transgressions may not necessarily be significant factors for discrediting the veracity of his account. 64.Dr Ho is of the view that the serial sevens test requires more acuity in concentration than just giving a past history, and it is known that impairment of concentration is a feature of PTSD and depression, so slowness and a few mistakes in the performance of such test at the end of a near three-hour interview by an examinee suffering from depressive and PTSD symptoms and some degree of mental exhaustion do not necessarily speak of exaggeration. In any event, the Plaintiff came up with correct answers on most occasions, and it is difficult for a layman to predict how the examiners would have rated the results. Dr Ho opines that real malingerers are more likely to give incorrect or absurd answers. 65.On balancing the available evidence, Dr Ho thinks the Plaintiff is a credible historian and the chance of him feigning or grossly exaggerating his mental symptoms is on the low side. He accepts there may be some inappropriate illness behaviour which reflects an eagerness to impress others about his pain and suffering, but such phenomenon is not uncommon amongst patients suffering from chronic pain. 66.For psychiatric impairment, Dr Singer opines that the Plaintiff comes within “Class 2: Mild Impairment – Impairment Levels are compatible with most useful functioning” under the AMA Guides, and gives 5% (1% due to the Accident) for both whole person impairment and mild loss of earning capacity. On the other hand, Dr Ho gives 8% for both mild to moderate whole person impairment and loss of earning capacity. Whilst it is difficult to apportion the individual causative factors in numerical terms, Dr Ho considers that the stresses at the time of the Accident, the orthopaedic symptoms and the Plaintiff’s employment/financial problems contribute towards ⅔ of his post-Accident psychiatric disability. 67.Dr Singer says that the prognosis for the bipolar disorder is guarded since it is pre-existing with a strong tendency to relapse. With continued follow-up treatment, the Plaintiff should achieve and maintain his pre-Accident mental state and not suffer any ill consequences as a result of the Accident. But the prognosis for the PTSD is good as the condition is mild and should respond to desensitisation treatment after which he should be able to return to taxi-driving. On the other hand, Dr Ho opines that the then prognosis seems unfavourable, but there may be marginal improvement of the Plaintiff’s mental condition after more intensive treatment. 68.Both Drs Ho and Singer agree that future psychiatric treatment can be provided in the public or private sector. Dr Ho thinks the Plaintiff can continue with treatment in the public sector with more intensive psychological treatment (eg with gradual desensitisation towards his feared stimuli), but if there is no substantial improvement after 2 more years, transfer to the private sector may be considered. 69.Dr Singer opines that the Plaintiff will require psychotherapy and medication treatment for 2 years for the bipolar disorder and 8 sessions at two-week intervals for the PTSD. Dr Ho says that the exact duration and frequency of the treatment depend on the response/progress of psychiatric and even physical symptoms, but he provisionally estimates that the Plaintiff will require at least 2 years of psychiatric and clinical psychology treatment. The Plaintiff can also receive some occupational therapy training at the Rehabaid Centre for his fear when he returns to driving. IX. CAUSATION 70.The main disputes between the parties turn on (a) whether the Accident is a materially contributing cause for the Plaintiff’s physical injuries and psychiatric disabilities, and (b) whether there is any risk that the Plaintiff’s pre-existing bipolar disorder will have led to disability in any event and if so, what is the extent of such risk. The Defendant doubts whether the Accident is a material contributing cause for the Plaintiff’s post-Accident depressive episode and argues there is a real risk of the bipolar disorder recurring in any event, and on such basis suggests that any award for pain, suffering and loss of amenities (“PSLA”) and loss of earnings should be heavily discounted. 71.It appears to me that the following are the principles which govern the issue of causation and the quantification of loss suffered by the Plaintiff:
72.I shall apply the above principles in my discussion on causation and in the consideration of the quantification of damages below. I remind myself that for this exercise I am only concerned with whether the Plaintiff has a reasonable prospect of establishing damages in excess of the District Court jurisdiction. 73.There is no dispute that the Plaintiff’s physical injuries are caused by the Accident. But is the Accident a materially contributing cause of the Plaintiff’s psychiatric condition which has prevailed since the Accident? 74.It is common ground that the Plaintiff suffers from pre-existing bipolar disorder with attempted suicide, psychiatric hospitalisation, and major depressive and hypomaniac episodes. Ms Cheng argues that at the time of the Accident the Plaintiff could not have been symptom-free because his bipolar disorder had relapsed prior to the Accident and he only improved to an uncertain extent but not recovered from such relapse. However, it is clear from the medical evidence that since 2002 the Plaintiff’s condition arising from the bipolar disorder has improved and achieved fair remission with treatment. He has been in the recovery stage since 2004 when he turned to taxi-driving. By April 2005, he stopped psychiatric follow-up, and did not return to the Psy Clinic for 3 years until April 2008. 75.Ms Cheng disagrees with Counsel’s opinion that the Plaintiff did not require psychiatric follow-up on the basis that the treatment medical reports state that he (a) had regular psychiatric follow-up with the last one on 2 June 2008 and (b) merely “defaulted” psychiatric follow-up in April 2005. Ms Cheng therefore argues that the Plaintiff should be suffering from psychiatric symptoms throughout the period from 2002 to the time of the Accident. In my view, irrespective whether it was the Plaintiff’s decision or the psychiatrist’s medical advice to cease psychiatric follow-up in April 2005, the reality is that the Plaintiff has been able to lead a relatively stable and stress-free life for 3 years from April 2005 to April 2008 without any psychiatric follow-up. He has been able to work as a taxi-driver, and has made plans for the future, say, by purchasing a taxi and deciding to get married. There is no cogent evidence before me that he has been troubled by bipolar disorder symptoms during this period. 76.It is true that the Plaintiff had a relapse in April 2008 due to anxiety, irritability and insomnia arising from busy preparations for his wedding in the following month. But he could sleep again and his mood condition improved with treatment and medications. He continued to work as a night shift taxi-driver, and the medical evidence shows that by the time of his psychiatric follow-up on 2 June 2008 his mood condition improved and that prior to the Accident his mental condition was stable. Even Dr Singer acknowledges that the Plaintiff merely had a mild depressive episode some months before the Accident but this was largely remitted. 77.On the other hand, although the collision was of moderate severity, it was certainly not trivial. It is reasonably arguable that the Accident has been a frightening experience for the Plaintiff. Even Dr Singer accepts that the Plaintiff has experienced significant stressors, including the Accident that is serious enough to threaten life or serious physical injury. 78.Turning to the Plaintiff’s post-Accident psychiatric condition, there is no dispute that the Plaintiff suffers from mild PTSD caused by the Accident. He has also reported deterioration of psychiatric symptoms during his hospitalisation at PYNEH very shortly after the Accident. Plainly, there is a close temporal link between the Accident and his psychiatric deterioration. Ms Cheng argues that irrespective of the Accident the Plaintiff would have suffered from mood fluctuations due to stressors in life and the Accident was merely one of such stressors. But such contention implicitly acknowledges that the Accident is a material contributing cause (although not the sole one) in respect of the Plaintiff’s post-Accident psychiatric condition. I bear in mind that the expert views of Drs Ho and Singer on medical aetiology, ie the Accident and aftermath contributing ⅔ or contributing little to the Plaintiff’s psychiatric disabilities, does not dictate legal causation which is determined by common sense applied to the available facts. 79.In my view, the Plaintiff has reasonable prospect in establishing that the Accident is a material contributing cause of his post-Accident psychiatric disabilities such that his pre-disposition to bipolar disorder does not enable the Defendant to escape liability. After all, what are the other possible causative factors? Dr Singer opines there is a strong tendency for depressive disorder in the setting of bipolar disorder to recur at least 8-9 times with or without the Accident, and without the bipolar disorder a major depressive episode is highly unlikely to occur after the Accident. Dr Singer’s opinion was of course not yet available at the time of the commencement of the present proceedings, but even if one were to take his views into account, it must be noted that even Dr Singer accepts that the Accident contributed to a minor extent to the Plaintiff’s post-Accident psychiatric condition. In my view, Dr Ho has put forward a highly arguable proposition that accords with pragmatic common sense, ie it is unlikely that the Plaintiff’s pre-existing bipolar disorder would have suddenly and spontaneously relapsed or recurred at the particular point in time if the Accident had not happened, and that such relapse or recurrence would have persisted without the subsequent physical disabilities and employment/financial problems. I find it reasonably arguable that absent the Accident the Plaintiff’s recovery from the mild depressive episode in April 2008 would likely have continued, and it is reasonably clear from a temporal perspective that the trauma of the Accident did trigger the recurrence of the bipolar disorder and converted that psychiatric illness from a mild depressive episode to a chronic major one. 80.Adopting a common sense approach, it is highly arguable that the Accident is an effective cause of the Plaintiff’s post-Accident psychiatric disabilities. The Defendant must take the Plaintiff as he finds him, and is not relieved of responsibility for the symptoms caused or increased by his particular susceptibility. X. PSLA 81.In the SOD, the Plaintiff claims a sum of HK$400,000.00 for PSLA. In the Advice, Counsel suggests that HK$350,000.00 is appropriate. 82.In assessing damages for PSLA, I bear in mind the trauma of the Accident, the Plaintiff’s physical injuries and psychiatric disabilities, and his loss of enjoyment and amenities described above. I bear in mind Dr Ho’s explanations as to why he considers the Plaintiff to be a credible historian, and find there is a reasonable prospect of persuading the court that the Plaintiff’s complaints are genuine (save for some inappropriate illness behaviour which is not unusual amongst chronic pain patients eager to make impression of their pain and suffering on others rather than true exaggeration). There is, however, no dispute that the Plaintiff’s injuries and disabilities do not come within the “serious” category. 83.I have carefully considered the authorities referred to in paragraph 155 of Counsel’s Advice and those referred to in paragraphs 43-46 of Ms Cheng’s written submissions. But each case is different and must be determined on its own facts. In my view, absent the pre-existing bipolar disorder, the Plaintiff has a reasonable prospect of establishing an award of HK$400,000.00 for PSLA at the time of commencement of the present proceedings. 84.On the question of the Plaintiff’s pre-existing bipolar disorder, notwithstanding Dr Singer’s views on the likelihood of recurrence (which opinion was not yet available at the time of the commencement of the present proceedings), there is no clear or cogent evidence as to when such recurrence will occur and/or whether such recurrence will, absent the Accident, give rise to the same or similar severity of disability now suffered by the Plaintiff. The depressive episode in April 2008 arising from the stressor of the Plaintiff’s then impending marriage is much milder in nature and has largely remitted with psychiatric follow-up and mood stabilising medications, and more importantly, the Plaintiff has been able to continue with taxi-driving. As an actual illustration of a relapse of the pre-existing bipolar disorder, the recurrence in April 2008 is a far different situation from those in Cheung Fat Tim, Chan Kam Hoi, Li Sau Keung and Liu Chun Kow Joe v Lee Sau Wing HCPI 399/2001 (unreported, 15 February 2007). 85.In Cheung Fat Tim, the plaintiff had a fall which triggered serious consequences for his already severely arthritic right elbow resulting eventually in a total elbow replacement with several severe complications. The medical evidence was in agreement in saying that even without the accident the plaintiff would at some stage have suffered further deterioration of his elbow condition which at some time would have prevented him from working and would have required a similar operation, but there was disagreement as to when that time would be and the degree to which it was possible to estimate the range within which that time might occur. The learned judge proceeded to assess damages as if the plaintiff did not have any pre-existing condition, and then discounted the award for PSLA, loss of earning capacity and pre-trial loss of earnings by 25% and post-trial loss of earnings by 50% to take into account the pre-existing condition. 86.In Chan Kam Hoi, the plaintiff had a pre-existing but asymptomatic degenerative condition of the spine. The judge found that in the absence of a further accident such pre-existing condition would have deteriorated to such an extent as was likely to have forced the plaintiff to give up his pre-accident occupation in his mid-50s. The Court of Appeal upheld the judge’s discount of 45% for damages for PSLA and for pre-trial loss of earnings, and reduced the discount from 75% to 45% for future loss of earnings to bring it into line with the other awards. 87.In Li Sau Keung, the medical evidence suggested that irrespective of the accident the plaintiff might have become unable to continue with heavy manual work when back pain would develop some time in future as a result of his degenerative spine. But there was controversy over the likely number of working years the plaintiff could reasonably expect to have. The court made a reduction of damages to inter alia reflect the risks associated with the plaintiff’s pre-existing degenerative condition. 88.In Liu Chun Kow Joe, Waung J found the plaintiff had pre-existing back pain and pre-existing anxiety/panic disorders. The plaintiff would have problems with his back even without the accident, but such problem both before and after the accident was not serious. The slight disability affecting his daily life/work was mostly attributable to the pre-existing symptomatic condition and not due to the accident. The learned judge also found that once the litigation was over the plaintiff should recover from his adjustment disorder problem which was really pre-existing. The case fell within the third category in Chan Kam Hoi, ie the condition would have occurred at some stage in any event, and a 60% discount was made to the award for PSLA. 89.At the Hearing, Ms Cheng submitted that the Plaintiff’s condition falls within the second category in Chan Kam Hoi and that I should make appropriate discount for any award for PSLA. I accept that even without Dr Singer’s opinion being available at the time of commencement of the present proceedings, there is a chance that even absent the Accident the Plaintiff would still suffer recurrence of his pre-existing bipolar disorder. The mild depressive episode in April 2008 is a good illustration. But even if Dr Singer’s opinion were to be taken into account, there is nothing to suggest that any possible relapse or recurrence of the pre-existing bipolar disorder (without the Accident) will be debilitating or will lead to psychiatric disability of the severity/extent suffered post-Accident or will prevent the Plaintiff from working. The mild depressive episode in April 2008 shows that a relapse can be remitted, and stable living can be maintained by psychiatric follow-up and mood stabilising medications. I also bear in mind that the Plaintiff has good insight of his pre-existing bipolar disorder, and notwithstanding the mild relapse in April 2008 he was able to maintain full and unbroken period of work as a taxi-driver until the Accident. By contrast, the Accident has triggered a chronic major depressive episode and the Plaintiff has become phobic about driving and/or taxi-driving. I agree with Counsel’s observation that “[apart] from residual physical pains, the Plaintiff had a full-blown psychiatric illness after the Accident whereby his life has been made paralyzed”. In such circumstances, whilst I am not convinced the Plaintiff will be able to go through life without recurrences or relapses of his pre-existing bipolar disorder, the available evidence shows it is reasonably arguable he should be able to continue with his work as a taxi-driver, have a reasonably stable life, and enjoy his pastimes with appropriate treatment and/or medications when such recurrences or relapses occur. 90.In Ng Kong v Golden Caterers Limited HCPI 206/2004, Recorder Edward Chan SC (unreported, 3 February 2005), a case cited by Ms Cheng, the plaintiff already suffered some aches and pains due to a pre-existing degenerative spine although he was able to continue to work prior to the accident. There was no medical evidence to show at what time within the plaintiff’s normal working life that the degeneration would develop to such extent that he would have to stop work. But since the way the plaintiff got injured (ie a usual minor work activity) indicated that his condition was such that he could suffer injury leading to great pain very easily, the learned judge considered he should take into account the fact that even without the accident the plaintiff stood a high chance of suffering the same if not more severe injury or pain as a factor of the vicissitudes of life in assessing the awards for PSLA and future loss of earnings. 91.Here, by reason of the aforesaid analysis, the Plaintiff has reasonable prospect of establishing his entitlement to recover damages for PSLA for both physical injuries and psychiatric disabilities materially caused by the Accident. However, I have to take into account that, even at the time of commencement of the present proceedings, I am not dealing with a wholly healthy mind and body but one which is constitutionally vulnerable and that such vulnerability is likely to continue into the future even if there had been no Accident. It will be necessary to reflect in the award for PSLA (a) the Plaintiff’s previous medical history, (b) his innate vulnerability to relapses which has occurred even before the Accident albeit in milder form and which probably would have continued even if there had been no Accident, and (c) the recurrence of some psychiatric symptoms from the exigencies of life in any event, such as stressors similar to his preparations for marriage and trauma from possible further accidents. But I am not persuaded there is sufficiently cogent evidence to show that the severity and extent of the Plaintiff’s post-Accident chronic depression would certainly have occurred at some stage in any eventand/or that any recurrence of the bipolar disorder would be so debilitating that it cannot be satisfactorily remitted by psychiatric follow-up and appropriate medications. The recurrences of the pre-existing bipolar disorder in the present case is different from pre-existing degeneration in the aforesaid authorities since the latter condition will progressively deteriorate, and in many cases will in any event lead to the post-accident condition at some stage in the future. Even Ms Cheng in her submissions has only suggested that the Plaintiff’s condition falls within the second and not the third category of Chan Kam Hoi. 92.In the circumstances, whilst I do not agree with Counsel’s assessment that there should be no reduction of the award for PSLA, I also disagree with Ms Cheng’s suggestion that substantial discount be made so that such award be reduced to HK$200,000.00-HK$220,000.00 or at most to no more than HK$250,000.00. Bearing in mind the above analysis, I find the Plaintiff has reasonable prospect of establishing an award for PSLA in the sum of HK$320,000.00. XI. PRE-TRIAL LOSS OF EARNINGS (a) Pre-Accident income 93.The Plaintiff claims that his average monthly income as taxi-driver from June 2007 to June 2008 (albeit unstable) is HK$14,272.00, and Ms Cheng is content to adopt such sum as his pre-Accident monthly earnings. 94.The Plaintiff claims that from June 2007 to March 2008 (but Mr Yu says it was from December 2005 to March 2008) he provided transportation service for ICL’s investigators to follow their targets at the rate of HK$140.00/hour (increased to HK$160.00 since February 2008), so that he further earned monthly income of HK$6,712.00 making his total average pre-Accident monthly income HK$20,984.00. The Plaintiff stopped such service to ICL after March 2008 as he was busy preparing for his wedding in May 2008. 95.Although the Plaintiff claims that the cessation of such service to ICL is merely temporary and ICL has promised to engage his services again after his marriage and/or after he has recovered from the Accident, there is no confirmation of such from Mr Yu in his witness statement. Hence, Ms Cheng and Counsel both agree that the Plaintiff’s pre-Accident monthly income of HK$6,712.00 from ICL should be disregarded when assessing the multiplicand for his claim for loss of earnings. I agree it is reasonably realistic for the Plaintiff to only rely on the sum of HK$14,272.00 as his pre-Accident monthly income when calculating his loss of earnings. 96.It is arguable that since the Plaintiff and/or his wife are the owners of the taxi driven by him and he was self-employed, his pre-Accident income should be calculated on the basis of net profits (ie his own receipts as night-shift taxi-driver and licence fees receivable from day-shift taxi-driver less expenses for operating the taxi such as the monthly hire purchase instalment payments, fuel charges and repair/maintenance charges) rather than on his earnings or receipts as a night-shift taxi-driver. Indeed, his post-Accident loss arguably should be calculated on similar basis (ie loss of net profits, if any, on the basis of actual or notional day/night-shift licence fees receivable for his taxi less operating expenses). But since both Mr Chung and Ms Cheng are content to proceed with calculation of the Plaintiff’s loss of earnings on the basis of his pre-Accident monthly earnings as a night-shift taxi-driver, I shall refrain from considering the question of loss of profits. (b) Post-Accident attempts to work 97.In/about August 2009, the Plaintiff took up a clerical job at his friend’s vegetable stall known as 美亞食品公司, but he could not remember the different types and quantities of vegetables due to his distending head condition and he therefore had difficulty in taking orders and calls. He resigned after 2 days and did not ask for any wages. He then looked for clerical work, could not find any, and was not interviewed. He tried to get work as a security guard but could not work as such because of his forensic record. He tried to get a job as construction worker but felt he could not do such work because of his back pain. He thought of going into the insurance trade but this required much reading and sitting an examination afterwards. He doubted he could learn and remember all that was required to pass the examination. He had opportunity to be private tutor to a pupil, but he could not concentrate and remember what he had learned. 98.The Plaintiff tried to drive a taxi but could not because of fear of driving. He tried driving in the presence of someone 4-5 times and could not proceed. In July 2009 he failed the driver assessment test and was told he should not drive until his psychological problem was resolved. The clinical psychologist advised him to get exposure to driving and get help from a driving instructor, but the driving instructor told him there was no hurry. 99.The Plaintiff was later referred by the psychiatrist to look for work under 勞工處職業選配計劃 (展能就業科). On 27 January 2010, he was supposed to see the relevant officer, but he cancelled the appointment because he did not feel well due to distending head condition and depression. In October 2010, the Plaintiff completed the Certificate in Plastering Assistant Training and became a member of the Hong Kong Brick-Laying & Construction Trade Workers’ Union. He registered with the Labour Department to look for work and received 2 introduction letters for positions as bricklayer trainee and temporary bricklayer in November 2010. There is no information as to whether he was interviewed or employed by such potential employers. (c) Jt Ortho Report 100.Dr Lam notes the Plaintiff’s pre-Accident taxi-driving job requires long hours on the road and long hours of concentration in driving with frequent turning of the neck to inspect the traffic environment to ensure the safety of passengers, himself and other road-users. From an orthopaedic perspective, Dr Lam is of the view that with more confidence the Plaintiff should be able to return to taxi-driving with mild limitation in work capacity, but the presence of residual pain in the neck and back means he will probably need more frequent short breaks for rest or stretching. On the other hand, Dr Chun opines that the Plaintiff should be able to return to taxi-driving with little limitation or restriction because he has good functional range of the neck with right or left rotation and the mild limitation observed at the joint examination should not prevent him from driving safely. (d) Jt Psy Report 101.Both Drs Ho and Singer agree that the Plaintiff is capable of performing clerical and security guard work. Dr Singer thinks the work the Plaintiff could do at the time of the joint examination include pre-Accident taxi-driving with some distress (if his physical condition allows), but after the recommended further treatment he should be able to do such work with no significant distress (if his physical condition allows). On the other hand, Dr Ho thinks the Plaintiff may still be considered capable of returning to his previous work in the long term with impairment to some extent in respect of his work tolerance, efficiency and adaptation ability. The Plaintiff is likely to encounter significant fear and distress if he had to work as a driver at the time of the joint examination, but with more intensive psychological and psychiatric treatment and occupational therapy training (which is provisionally estimated to require at least 2 years) and motivation by the Plaintiff to cooperate fully with such treatment, it is likely that he can overcome such fear better and regain his confidence. Road safety might be a cause for concern if he returned to driving at the time of the joint examination. (e) Sick leave 102.Ms Cheng submits that in respect of loss of earnings the main areas of dispute are (a) the appropriate length of sick leave and (b) the discount to be applied by reason by the pre-existing bipolar disorder. She argues that the Plaintiff has over-claimed damages for pre-trial loss of earnings by claiming for loss over an unreasonably long period of sick leave. 103.At the time of commencement of the present proceedings, the Plaintiff was still on sick leave. According to his 1st witness statement, the Plaintiff had total sick leave of 652 days from 16 June 2008 to 29 March 2009. In fact, the medical certificates for bipolar disorder cover the period from 29 September 2008 to 18 July 2010 and those for neck and back sprain/pain cover the period from 16 June 2008 to 11 October 2010. 104.Dr Chun recommends reasonable sick leave of 4 weeks for the whiplash injury, and Dr Singer recommends sick leave period of 3 months from the time of the Accident for the Plaintiff’s psychiatric condition. Dr Lam opines that sick leave issued by the Plaintiff’s treating doctors from time to time is appropriate and should be endorsed having regard to the severity of the orthopaedic injury, the need for and progress with rehabilitation, the concern for road safety as a driver and the pre-Accident job demand. From the psychiatric perspective, Dr Ho thinks sick leave from the time of the Accident hitherto until the Plaintiff’s psychological problems are resolved before he can resume driving is appropriate. Dr Ho considers the Plaintiff’s post-traumatic stress symptoms and his work as a professional driver with concerns for safety to himself and others, and opines that the treating psychiatrists will be in a better position to determine the sick leave he may require during the subsequent course of his psychiatric condition. 105.According to the SOD, the notional date of trial is 16 December 2010, so the notional pre-trial period from 16 June 2008 to 16 December 2010 is 30 months. The Plaintiff argues that he was not able to work during such period, and it is likely that further sick leave would have been granted at orthopaedic and/or psychiatric follow-up after 11 October 2010. Therefore, the pre-trial loss of earnings should be in the sum of HK$428,160.00 (ie HK$14,272.00 x 30 months) by using the multiplicand of HK$14,272.00 instead of HK$20,984.00 as adopted in the SOD. 106.Ms Cheng suggests that the medical certificates provided to the orthopaedic experts for consideration and endorsed by Dr Lam up to the joint examination reflect sick leave duration from 16 June 2008 to 30 March 2009, so there is a gap of 1½ years not endorsed by any expert doctor including Dr Lam. Nevertheless, since the Plaintiff has been granted sick leave of 22 months under the medical certificates for his psychiatric illness, Ms Cheng argues that subject to appropriate discount for his pre-existing bipolar disorder, the Plaintiff’s loss of earnings over such sick leave period should be more than sufficient. The Defendant therefore contends that the award for pre-trial loss of earnings should be no more than HK$313,984.00 (ie HK$14,272.00 x 22 months). 107.In my view, the mere production of medical certificates does not require the court to find that a plaintiff is justified in not working during the period covered by the certificates. Counsel at paragraph 173 of the Advice refers to the guidance by Rogers VP in Choy Wai Chung v Chun Wo Construction and Engineering Co Ltd CACV 172/2004 (unreported, 15 July 2005) as follows:
and to the further guidance by Le Pichon JA in Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210, 215-216 as follows:
108.Similarly, in the present case, I am not bound by the medical certificates that have been produced by the Plaintiff. But at the same time, I bear in mind that the absence of medical certificates does not necessarily mean that the Plaintiff is capable of resuming his pre-Accident work in full capacity. Instead, I propose to base my assessment on the available factual and medical evidence. 109.As explained above, I accept it is highly arguable that the Accident is a causally important factor in respect of the Plaintiff’s physical and psychiatric disabilities. Having reviewed the treatment and expert medical reports and the medical certificates, I am of the view the Plaintiff has reasonable prospect in establishing that the whole period up to the notional date of trial (ie 30 months) should be allowed as the period he was unable to work. On that basis, the award for pre-trial loss of earnings should be in the sum of HK$428,160.00. Counsel in her Advice also allowed for corresponding loss of MPF benefits, but since the SOD does not make any claim for such head of loss I do not make any allowance for such item. 110.In coming to this view, I bear in mind that at the time of the commencement of the present proceedings the Jt Psy Report was not available. The Plaintiff was still receiving orthopaedic and psychiatric follow-up. He was then under active psychiatric treatment (and possibly also clinical psychological treatment), and there is no reason to think he would not have been granted further sick leave on further follow-up. As the course of the Plaintiff’s psychiatric treatment was expected to and in fact did continue over time, I do not agree with the Defendant’s blinkered approach of assessing loss of earnings on the basis of the available medical certificates for the period only up to 11 October 2010. 111.As regards his pre-Accident job as taxi-driver, as at March 2009 his psychological readiness in resuming driving was questionable. According to the results of the driving assessment in July 2009, it was concluded that he should not drive until his psychological condition was resolved. In September 2009, he was told by the Transport Department not to drive until he is desensitised towards his feared stimuli. In November 2009, Dr Leung confirmed that his then medical condition would be liable to cause his driving to be a source of danger to the public. Whilst these reports/results suggest that from an orthopaedic perspective the Plaintiff is medically fit to drive notwithstanding some mild limitation, there is reasonable prospect in establishing that he is psychologically unready to resume taxi-driving during the notional pre-trial period. Indeed, if the expert opinion in the Jt Psy Report were to be considered (as suggested by Ms Cheng), both Drs Ho and Singer acknowledge that in mid-2010 the Plaintiff could only have returned to taxi-driving with fear and distress, and both experts recommend further psychiatric treatment including desensitisation (exposure) therapy. Bearing in mind the consideration of road safety, it is highly arguable that the Plaintiff could not have resumed taxi-driving in the notional pre-trial period. 112.As regards other jobs, I note the Plaintiff attempted clerical work (which Drs Ho and Singer consider as suitable for him) in August 2009 but could not cope. He could not work as a security guard (which Drs Ho and Singer consider as suitable for him) due to his forensic record. In my view, it is highly arguable that the Plaintiff would not have been able to work during the notional pre-trial period. (f) Reduction for pre-existing bipolar disorder? 113.Ms Cheng submits that any pre-trial loss of earnings should be reduced by 45% due to the Plaintiff’s pre-existing bipolar disorder. But the key question here is whether absent the Accident the Plaintiff would have been able to have a full and unbroken period of employment or whether he would have interruption of work in any event at some stage during the notional pre-trial period. 114.In Ng Kong, Recorder Edward Chan SC held that if the plaintiff’s own pre-existing condition was such that it would not have prevented him from working unless his condition was aggravated by the accident, then the thin skull rule would apply and the defendant is liable to compensate the plaintiff in full. But if the plaintiff’s pre-existing condition was such that the interruption of work would have occurred in any event even without the accident, then no damages would be recoverable. But very often the position would be that the interruption would probably occur some day but the accident had accelerated the interruption. In such case, the court would have to take into account the effect of the pre-existing condition as in Chan Kam Hoi. 115.In Ashok GC v Kam Kee Construction Works Limited & anor CACV 244/2006 (unreported, 9 February 2007), there was insufficient evidence that the pre-existing condition would have caused difficulty prior to trial, but there was clear evidence from the plaintiff’s orthopaedic expert that the pre-existing degeneration of bulging disc at L4/5 level of the spine would likely cause the plaintiff difficulty in about 3 years from trial. Consequently, the Court of Appeal set aside the global reduction of 60% of the pre-trial loss of earnings and held there should not be any discount. 116.I reiterate that the Jt Psy Report (and hence Dr Singer’s opinion about recurrences and relapses of the pre-existing bipolar disorder) was not available at the time of the commencement of the present proceedings. But even if Dr Singer’s opinion (ie depressive disorder in the setting of bipolar disorder will recur at least 8-9 times with or without the Accident) were to be taken into account, there is no evidence that such recurrence will necessarily manifest itself in the form of chronic major depressive episode that debilitates the Plaintiff from work. As discussed in paragraphs 84-91 above, the relapse of the bipolar disorder in the form of a mild depressive episode in April 2008, which was largely remitted by early June 2008 with psychiatric follow-up and mood stabilising medications and which did not interrupt the Plaintiff’s work, suggests otherwise. 117.In the circumstances, the Plaintiff has reasonable prospect of establishing that he would have been in full employment during the notional pre-trial period had there been no Accident, so no reduction of the award for pre-trial loss of earnings is required. XII. POST-TRIAL LOSS OF EARNINGS 118.The Plaintiff will be 45 years old at the notional date of trial. In the SOD, he claims a sum of HK$1,558,080.00 (ie (HK$20,984.00 – HK$8,000.00) x 12 months x 10) for post-trial loss of earnings on the basis of (a) a working life up to 65 years and a multiplier of 10, (b) the Plaintiff’s pre-Accident monthly earnings that are inclusive of his income from ICL, and (c) partial loss as a result of the Plaintiff having difficulty in resuming taxi-driving but being able to take up or notionally take up sedentary work at HK$8,000.00 per month. 119.Again, I remind myself that the Jt Psy Report was not available at the time of the commencement of the present proceedings, and hence the opinion of Drs Ho and Singer as to whether the Plaintiff is able to resume taxi-driving after further psychiatric treatment is not known at that time. 120.But to err in favour of the Defendant by taking the Jt Psy Report into account, the medical experts opine that the Plaintiff can return to his pre-Accident taxi-driving (with mild limitation and more frequent short breaks according to Dr Lam and with some impairment to his work tolerance, efficiency and adaptation ability after intensive psychiatric/psychological treatment for another 2 years according to Dr Ho). Indeed, Dr Singer also recommends further psychiatric treatment for 2 more years. Dr Ho says that if the Plaintiff resumes taxi-driving before the recommended psychiatric/psychological treatment, he will likely encounter significant distress and fear. In my view, since Drs Ho and Singer both recommend further desensitising therapy and there is no confirmation yet that the Plaintiff is psychologically fit to drive, and further given legitimate concerns for road safety, it is not unreasonable for the Plaintiff to refrain from resuming taxi-driving until after 2 more years of psychiatric treatment. 121.As regards other work, the Plaintiff has actively looked for other jobs but has not been able to find any suitable work. In my view, the Plaintiff has reasonable prospect in establishing that he will require 2 more years to recover from his injuries and disabilities resulting from the Accident, after which period he ought to be able to resume taxi-driving with some mild limitation. For the present purpose, to further err in favour of the Defendant, I agree to adopt a multiplier of 2 as suggested by Counsel in the Advice. In the circumstances, the award for post-trial loss of earnings should be in the sum of HK$342,528.00 (ie HK$14,272.00 x 24 months). Although Counsel has allowed a sum for corresponding loss of MPF benefits, there is no such claim in the SOD, so for the present purpose I also do not allow such head of loss. 122.Ms Cheng submits there should be a reduction of 45% of the award for post-trial loss of earnings to reflect the effect of the pre-existing bipolar disorder. However, for the reasons explained in paragraphs 113-117 above, I am of the view that the Plaintiff has reasonable prospect of establishing that no reduction is required. XIII. LOSS OF EARNING CAPACITY 123.The Plaintiff claims a sum of HK$48,000.00 (ie HK$8,000.00 being notional monthly earnings of a sedentary job x 6 months) for loss of earning capacity on the basis that there is a risk he may lose his employment at some future time by virtue of his injuries and disabilities and be at a disadvantage in the labour market. But as acknowledged by Counsel in her Advice, the Plaintiff has been self-employed. The medical evidence shows that after appropriate treatment he will be able to resume taxi-driving albeit with some mild limitation. There being no cogent evidence that he will be disadvantaged in the labour market, Counsel is of the view that if the court allows compensation for post-trial loss of earnings, that means “it has already taken care of the disadvantage of the Plaintiff in the labour market, [and] it is probable that the Court may not grant any compensation under this head”. 124.Mr Chung submits that after the Accident the Plaintiff was granted extended sick leave and he has yet to return to taxi-driving pending psychological assessment, so at the time of the commencement of the present proceedings it was doubtful whether the Plaintiff could have returned to taxi-driving at all and there was a real possibility that he might have to look for other work with real risk of disadvantage if thrown onto the labour market. Mr Chung therefore argues that the claim for loss of earning capacity in the SOD in the sum of HK$48,000.00 is not unreasonable. 125.Whilst there is some force to Mr Chung’s submissions, for present purpose I am prepared to err in favour of the Defendant to disallow any award under this head of claim. XIV. OTHER HEADS OF DAMAGES 126.For the purpose of determining the Issue, the parties have no dispute over the following heads of damages:
XV. CONCLUSION 127.Taking into account the Plaintiff’s reasonable prospect of establishing damages for PSLA, pre-trial loss of earnings and post-trial loss of earnings in the respective sums of HK$320,000.00, HK$428,160.00 and HK$342,528.00, and the undisputed sum of HK$19,470.00 for other heads of damages, the Plaintiff is likely to be able to establish a total award of damages of HK$1,110,158.00. This means that the Plaintiff is able to show that his claim has reasonable prospect of exceeding the District Court jurisdiction. In such circumstances, I have no hesitation in concluding that costs of the action should be on the High Court scale of costs. 128.There is no reason why costs should not follow event. I hereby grant a costs order nisi that the Defendant should pay the costs of the Issue (including all costs reserved) to be summarily assessed on High Court scale. As regards summary assessment of costs, I grant the following directions:
Representation: Mr H Chung of Messrs Yip, Tse & Tang for the Plaintiff. Ms J Cheng of Messrs W K To & Co for the Defendant. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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