1997, No.PI 120
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES
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BETWEEN
| | CHAN SIU LUN | Plaintiff |
| | and | |
| | HUI CHO YEE | 1st Defendant |
| | LEE SHING KEUNG | 2nd Defendant |
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Coram: Hon Nguyen J in Court
Dates of hearing: 23 – 27 March 1998
Date of handing down judgment: 12 May 1998
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J U D G M E N T
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The Plaintiff’s claim
1. The Plaintiff claims damages against the two Defendants for injuries that he sustained whilst running on Cloudview Road on 7th December 1988 and colliding with private car Registration No.BY 739 which, at the material time, was owned by the 1st Defendant and driven by the 2nd Defendant. The Plaintiff claims that the collision was caused by the negligence of the 2nd Defendant who at the time was acting in the course of his employment with the 1st Defendant.
The Plaintiff’s case
2. The Plaintiff appeared in person and the first witness that he called was Police Constable 21080. This witness was the police officer who attended at the scene of the accident and who prepared the sketch of the scene of the accident and he was also the person who attended at the hospital and obtained a statement from the Plaintiff. He was also the person who took a statement from the driver of the private car, namely the 2nd Defendant. PC 21080’s evidence was that from the road junction of Cloudview Road and Tin Hau Temple Road to the commencement of the gap in the tubular railing, the distance was eight metres. The railing on either side of Cloudview Road was broken at the junction of that road with Tin Hau Temple Road. The witness’ evidence is that from the road junction to the commencement of the gap, only one private car could park in the gap. The officer’s evidence is that upon arrival at the scene he noticed the car was stationary at the position where it is shown in the sketch which is at page 1 of the Bundle. He also gave evidence that there was a slight dent on the left front bonnet of the car and that this dent was closer to the car bumper than it was to the windscreen of the car.
The Plaintiff’s evidence
3. There was no objection from Counsel for the Defendants for the statement that the Plaintiff had prepared for the case, which was dated 27th June 1997, to be admitted into evidence as the Plaintiff’s evidence-in-chief. The statement was accordingly admitted into evidence. In addition, the Plaintiff testified that the photograph at the bottom of Page 243 of the Bundle shows the position where he stood before he crossed Cloudview Road. According to the statement, the Plaintiff stopped under the street name plate at the corner of the down-slope lane of Cloudview Road for a while. The motor vehicles blocking the gap in the tubular railing were stationary and not moving at all. The Plaintiff then jogged slowly out from the pavement and passed through one of the gaps between the stationary vehicles. At the time that he stepped onto the mid-lane of Cloudview Road, he noticed that the up-slope lane was free of vehicles. After he made a clear lookout of his right hand side and left hand side to ensure that there were no vehicles coming, he tried to jog across the other portion of the road. However, when he reached the middle portion of the up-slope lane of Cloudview Road, he saw a beam of strong light dashing towards him at a high speed from the direction of Tin Hau Temple Road. He noticed that the vehicle which was emitting the light had already turned rightward from Tin Hau Temple Road. The Plaintiff took one more step forward and then he was hit at his left side by the motor vehicle which was private car No.BY 739. Almost simultaneously, he heard a loud braking sound and a loud bombing sound. After he was hit by the car bumper, he was thrown up and hit by the left side of the car front bonnet. Finally, he landed onto the opposite pavement with his left arm and occiput, resulting in a cervical spine fracture.
4.In the statement, the Plaintiff said that after the accident, he spent much time and money to restore his health so that he could maximize his earning potential. He consulted a number of top medical specialists to treat his injuries. He attached a list of the medical consultations that he had after the accident and the list comes to a total of 222 consultations with different doctors and at different clinics, beginning with 7th December 1988 at the Queen Mary Hospital and finishing on 5th July 1996 at Dr Desmond Fung’s clinic.
5. In his statement which he made on 27th June 1997, the Plaintiff said that he had still not fully recovered from the accident. He listed the injuries that he still suffered as follows :
─ fractured odontoid process
─ soft tissue injury at the left thigh and low back
─ irritation of the sciatic nerve at the sciatic notch
─ sensory disturbances of the left upper limb
─ pain at the achilles tendon, lateral border of the foot, the buttock and thigh of the left lower limb
─ left sciatic pain
─ myofasciitis around the left ischial tuberosity and achilles tendon due to chronic neuritis, irritation of left sciatic nerve and achilles tendinitis
─ residue symptoms of dysphoria
─ high chance of psychiatric or psychotic decompensation under stressful events
─ constant pain and paraesthesia in the left upper limb from shoulder to hand
─ neck pain which is intermittent and associated with dizziness
─ sufferings in physical, emotional, social and occupational aspects of life.
6. After taking four months’ sick leave, the Plaintiff returned to work in the same company as a sales engineer selling industrial products. He said that he lost his promotion prospects to become a sales manager despite his good performance in the company before the accident. He said he was dismissed by the company in May 1994, after 11 years’ service, because he became too much involved in the litigation of the present case. After his dismissal, he spent time preparing for the case and also studying for various business diplomas. He first started to work for the company, S & T Enterprises Limited, on 6th April 1983 and the date of his termination of service was 20th April 1994. His monthly income before the accident was about $22,430. In October 1995, he managed to find a job as a marketing manager in a company which sold electrical stationery and home appliances. He was dismissed from that company in December 1995 and his monthly salary in that company was $20,000. In February 1996, he got another job as a sales manager selling computer software with the company called Video Education Limited, earning $20,000 per month. This employment was terminated on 31st March 1996. In June 1996, he started a job as a sales manager with a company based in Guangdong and at this job he was earning $25,000 per month, but he left this job in the middle of July 1996 to prepare for the hearing of the Defendants’ application to strike out the Plaintiff’s claim for want of prosecution. Since July 1996, the Plaintiff has remained unemployed despite writing a number of letters to seek jobs.
7. In the Plaintiff’s statement, he said that he was a regular marathon runner and had participated in a number of marathons where he was able to finish the respective races. He said that after the accident, he could only engage in mild exercises. He could not participate in any running races. He would feel great pain stretching from his left hip to his left foot whenever he attempted to run fast. Besides, he would also feel persistent pain on the left hip when he slept or sat down. In his statement, he gave a list of complaints in his daily life up to the middle of 1997. These are :-
| "a. | Tightness of hamstring/fascia-tibula/tendo-achilles; |
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| b. | Left foot more painful when I use left leg muscle; |
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| c. | Left shoulder, arm and 5th carpal felt numbness and left shoulder very tight; |
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| d. | Left leg until 5th metatarsal feel pain when sit. The pain became more serious when walk, stand and run. Also pulling tension is felt when walk and stand; |
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| e. | Feel pain on left heel and sacra-iliac joint. The extent of pain in descending order is as follows :- |
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| | run > walk > stand > sit > sleep |
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| f. | State of pain and numb feeling correspond to different body activities :- |
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| | i) when sleep, pulling tension on achilles tendon and tight feeling on left low back; |
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| | ii) when sit, tight feeling on left waist up to outer border of left heel; |
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| | iii) when stand, pain on left waist up to outer border of left heel; |
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| | iv) when walk or run, most pain on left heel and left low back and buttock. |
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| g. | i) pain on gluteal muscle and buttock; |
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| | ii) pain on heel when walk and numb feeling; |
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| | iii) when sit, tightness and numb feeling on left heel; |
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| | iv) pain in buttock when sit and walk; |
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| | v) tight and pain low back. |
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| h. | i) numb feeling and tightness on left foot either stand or run; |
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| | ii) more pain when run; |
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| | iii) pain on left calcaneum and left heel. |
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| i. | i) pain and tightness and numbness from neck until left 5th metatarsal; |
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| | ii) tenderness and tightness on left waist; |
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| | iii) tenderness and numbness on left heel; |
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| j. | i) pain and tightness and numbness from neck until left 5th metatarsal, left low back, left buttock; |
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| | ii) pulling tension and tenderness on left heel; |
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| | iii) pain on left hamstring. |
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| k. | I cannot sleep well at night due to pain on low back until left heel; |
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| m. | Intermittent neck pain and associated with dizziness.” |
8. The Plaintiff was cross-examined and he confirmed that he did not hold a driving licence at the time of the accident. He said he was not sure whether on the day of the accident and just before the accident, he had crossed Cloudview Road behind one or two stationary vehicles. He confirmed that he had crossed Cloudview Road at the spot where the road name plate was erected. He said that he had stood on the pavement of the down-slope lane of Cloudview Road for one or two minutes. He said that the car behind which he crossed Cloudview Road was a small private car. He then said that most probably that car was the second stationary vehicle, the first stationary vehicle being stopped at where the tubular railing of Cloudview Road was. He said that he then slowly ran across the road and that his speed was slower than jogging. It was suggested to him that a driver stopped at the pocket on Tin Hau Temple Road waiting to turn right into Cloudview Road would be looking out for traffic on Tin Hau Temple Road and only when he entered Cloudview Road and straightened his vehicle would he have a full view of Cloudview Road. The Plaintiff did not agree with that proposition and said that if the driver had travelled at 10 mph, he would never hit a pedestrian and that when turning into Cloudview Road at that speed, he would be able to stop. It was then suggested to him that from the junction of the two roads to where the road name plate was erected, the distance was no more than the length of a private car. He said in reply that that was possible. He confirmed that he crossed the road where the name plate was and that the two name plates on either side of Cloudview Road roughly faced each other. He confirmed that at the time of the accident, it was dark and that it was more difficult for the driver of a car to see pedestrians than it would be for pedestrians to see the cars.
9.It was again suggested to him that the headlight of the car turning into Cloudview Road would be shining onto the corner of the junction between the two roads. The Plaintiff did not agree with this and said that when the car turned into Cloudview Road, the driver would be able to see.
10.The Plaintiff confirmed that after the impact, he landed near the lamp-post shown in the photograph at the bottom of page 245 of the Bundle. And he was asked if the point of impact was somewhere between the first lamp-post and the road junction of the two roads and he said it probably was. He was asked whether the impact took place probably where the Plaintiff is shown standing in the bottom photograph of page 245, and the Plaintiff agreed with that.
11. The Plaintiff said that the impact point was two cars’ distance from the road junction, about 8 metres. It was suggested to him that he did not stop in the middle of Cloudview Road to check the traffic and he did not agree with that. He said that he found that there was no car on the up-slope lane, no sound of any car horns, he had observed nothing and that it was 100% safe before he continued to cross the road. He had said that it took him time when he was in the middle of Cloudview Road to look right and then to look left before continuing to cross, and he was asked what the point was of looking right when at that point of the road there could only have been traffic coming at him from his left. He said in reply that it was a habit.
12. The Plaintiff confirmed that the headlights of the car BY 739 were on. He said that after the accident, the car dashed forward, after the impact the driver swerved onto the pavement and hit the tubular railing and so there was no time for the driver to apply his brakes. The Plaintiff maintained that the car was driven very fast. He was asked how far he was when he first saw the headlight of the car and he said he was about three to four cars’ distance away, or at least more than eight metres away.
13. The Plaintiff was referred to a series of photographs taken by Dr O’Donovan, one of which (the bottom photograph at page 329 of the Bundle) showed his left hand clenched including his left little finger. In response, the Plaintiff said that Dr O’Donnovan had pushed the finger and then held it. He was asked why it was necessary for him to consult so many doctors and clinics and he said that he could not get an accurate diagnosis so he needed further consultations. He said that the first aim of all these consultations was to treat the patient rather than to substantiate the claim for pain. He was asked if he resumed jogging after the accident and he said that he could do mild exercises like slow running but that fast running was impossible.
Plaintiff’s medical evidence
14. The Plaintiff’s evidence was interposed by that of Dr Yu Yuk Ling (“Dr Yu”). Dr Yu had examined that Plaintiff on 23rd March 1996 and 1st April 1996 and his first report was dated 19th April 1996. On examination of the Plaintiff, Dr Yu found that there was no limitation of neck movements but the Plaintiff experienced a pulling sensation at the left side of the neck when he turned his head to the left side. At the lower back, there was pain on the left side. Flexion was limited to 70; other movements were full. Straight leg raising was 70°on the left and 90°on the right. There was local tenderness at the left buttock in the region near the sciatic notch. There was also a tenderness at the left achilles tendon. An MRI pelvis on 12th December 1991 showed that the piriformis muscle on the left side was smaller than the right. This could be due to atrophy or a normal variant. Dr Yu’s opinion was that the Plaintiff sustained fractured odontoid process, laceration at the occipital region, soft tissue injury at the left side and lower back in the accident. The current symptoms were a result of the accident. The current symptoms were likely to be permanent as it was then already 90 months from the accident. Dr Yu estimated that the percentage of permanent impairment of the whole person (“PIWP”) was as follows :
─ sensory disturbance of the left upper limb 1%;
─ pain in the left lower limb 2%;
─ fractured odontoid process and neck pain 5%;
─ cumulative PIWP according to the standard chart in the Guards to the Evaluation Permanent Impairment published by the American Medical Association in June 1993 was 8%.
The present symptoms would affect the Plaintiff’s ability to perform his duties as sales manager. The loss of earning capacity was estimated to be 5%. However, Dr Yu said the Plaintiff also suffered from psychological trauma as a result of the accident and this would also affect his earning capacity. A psychiatric assessment was recommended.
15. A further report dated 16th January 1998 was prepared by Dr Yu and that was based upon his examination of the Plaintiff on 31st December 1997. Dr Yu found that the pain and paraesthesia in the left upper limbs had deteriorated. The Plaintiff could not elevate the left shoulder fully because of a dragging pain. When he bent his left elbow, the symptoms would be aggravated. The dragging pain had also spread to the left side of the neck and head. The headache occurred everyday, especially in the evenings. The left upper limb felt stiff and clumsy. The pain at the achilles tendon, lateral border of the foot, the buttock and side of the left lower limb remained unchanged. The neck pain which occurred independently of the symptoms in the left upper limb had got worse. There had been no recurrence of depression although the Plaintiff experienced great pressure as a result of the legal proceedings. At the time of writing the report, the Plaintiff was not seeking medical treatment. The reason the Plaintiff gave was that he wanted to preserve the medical evidence until the conclusion of the legal proceedings. Dr Yu found that there was mild limitation of neck movements because of a pulling sensation at the left side of the neck. Dr Yu expressed the opinion that since the last examination on 16th April 1996, the pain and paraesthesia of the Plaintiff’s left upper limb and the neck pain had deteriorated, his left upper limb had become mildly clumsy, while the symptoms in his left lower limb had remained unchanged. There was little objective sign for neurological impairment. He was of the opinion that the Plaintiff’s major impairment was due to the psychological trauma following the accident. He reassessed the percentage of permanent impairment as follows :
─ sensory disturbance of the left upper limb 2%;
─ clumsiness of the left hand 1%;
─ pain in the left lower limb 2%;
─ fractured odontoid process and neck pain 6%;
─ cumulative PIWP according to the standard chart in the Guards to the Evaluation Permanent Impairment published by the American Medical Association in June 1993 was 11%.
─ Loss of earning capacity was estimated to be 10%.
Dr Yu was of the view that because of the symptoms, the Plaintiff would need medical consultations once every month at about $700 per visit exclusive of medications and physiotherapy twice a week for one month, then weekly for two months and then monthly for about 12 months. The fee for each physiotherapy session would be about $400.
16. In Court, Dr Yu said that the fracture of the odontoil process might lead to instability of the cervical spine. He agreed with the Defence that the Plaintiff was too preoccupied with the legal proceedings and that was not helping his condition, but also that it had an adverse effect on his physical and mental condition.
17. The next medical witness called by the Plaintiff was Dr Desmond S.S. Fung (“Dr Fung”). Dr Fung, together with a Mr Wong Chee Wing (“Mr Wong”), a clinical psychologist, had examined the Plaintiff on 22nd April 1996, 4th May 1996, 10th May 1996 and 30th May 1996. In addition, Mr Wong saw the Plaintiff on 4th May 1996 and 10th May 1996. They jointly furnished a report dated 12th August 1996. They found that at the time of the medical examination, the Plaintiff did exhibit emotional signs of over-excitement and over-familiarity which was part and parcel of his mood state. This was manifested in his pressure of speech and verbose accounts. With respect to the Plaintiff’s physical pains and sufferings, they were of the opinion that there was good evidence to show some forms of subjective exaggeration. This did not necessarily suggested that the Plaintiff was wilfully and deliberately feigning somatic disorders, as his symptoms could be quite true although very much over-rated. They considered that while the accident had not impaired the Plaintiff’s intellectual and cognitive functioning, it did have a far-reaching impact on his emotional and psychological status. The impact was not so much attributed to the nature and severity of the accident per se, but to the emotional disturbance and depression which occurred as a result of subsequent prosecution against the Plaintiff by the police and the chain of events which took place in connection with the High Court Proceedings. During the examination, they found that the Plaintiff had largely recovered from his previous depressive illness which had disabled him between 1992 and 1994. However, he still exhibited residue symptoms of dysphoria. Because of the significant psychological impact on the Plaintiff, his emotional state remained vulnerable after undergoing a roller coaster ride in recent years. Despite the lack of evidence of severe clinical depression on examination, the Plaintiff’s intense somatic pre-occupation, the negative perception of his future, a very distrustful attitude and a general feeling of dysphoria would be a reflection of his pessimistic outlook of his own being. They were of the view that the Plaintiff would definitely need on-going psychotherapy and counselling for his dysphoric mood. If his depression became more prominent, he would need a course of anti-depressions for treatment. At the time of the examination, the Plaintiff’s condition was fluid and far from stationary. However, he remained a very vulnerable person. The chances of a psychiatric or psychotic decompensation under stressful events remained high. However, as the Plaintiff was so obsessed with future vindication for the perceived injustice perpetrated upon him, they strongly believed that his mental status and physical complaints would certainly improve spontaneously if he were eventually vindicated in his legal battle in Court.
18. Dr Fung prepared another report together with Dr Timothy Law dated 21st January 1998. Dr Timothy Law was a clinical and neuro-psychologist and he performed a personal interview of the Plaintiff. They were of the view that the Plaintiff’s psychological status remained far from stationary. They said that it was most evident that the Plaintiff continued to suffer from impacts of the accident and the complications with legal pursuits, which had kept his memories of the accident alive and painful throughout the years. They said that the result was an obsession, a near paranoic state of mind that had continuously affected the Plaintiff’s recovery and adjustment throughout the years. They were of the joint impression and opinion that in view of the Plaintiff’s present symptoms and complaints, his condition may not show much improvement, unless he is provided cognitive behavioural psychotherapy, with key focus on his present and future adjustment to pains. In a written addendum to the report dated 23rd January 1998, Dr Fung said that the treatment for the Plaintiff would require a period of six to nine months of therapy and the cost for each session would be $1,200 on a weekly basis, and the total cost would be $1,200 x 9 x 4 = $43,200.
19. In Court, Dr Fung said that before the accident, the Plaintiff was adjusting well and his mental state was quite well, but after the accident there was a different mental picture because the Plaintiff suffered from depression which required further treatment. He said that the events which took place after the accident could be a major factor in the development of the Plaintiff’s mental condition. Under cross-examination he said that the prognosis was that if the Plaintiff did not receive treatment, he remained vulnerable. However, if he were to win the Court case, it might be a strong anti-depressant. He said that if the Plaintiff should win the case, then he would definitely require less treatment for his condition.
Defence case
20. The 2nd Defendant Lee Shing Keung gave evidence. He said that on 7th December 1988, at 6 p.m., he drove up Fortress Hill Road onto Tin Hau Temple Road. At the road junction he paused for a while because he had to turn to Cloudview Road and he paused to look clearly to see if any vehicles were coming down Tin Hau Temple Road. He said there was traffic on the down-slope of Cloudview Road which was stationary. He said that when he was waiting to turn right into Cloudview Road, he was in 1st gear. He then went up-slope onto Cloudview Road, turning right. He said that as soon as he turned up, he was next to a van which was in the stationary lane. All of a sudden a person dashed out in fast pace. The person had come out from behind a van on the downward slope lane and he dashed out. He said that when he first saw the person, that person was already dashing across. He could not say how far away he was because it happened very quickly. He immediately stopped his car by applying the brakes. The left part of the vehicle came into contact with the person. He was asked if he had his headlights on, and he said he did not. He was asked if he remembered, and he said he could not. He said that the speed of the vehicle was about 10 mph. He could not remember the exact position where the collision took place. He was asked if he tried to swerve his vehicle, and after pausing for a while, he said he could not recall. He confirmed what he said in his witness statement that about two months after the accident, he saw the Plaintiff on more than 10 occasions jogging in the vicinity of Cloudview Road.
21. In cross-examination he was asked if he heard a braking sound and he said he did not. He said his car was moving and the pedestrian was hit by the left side of the car. The left front corner of the car brushed the pedestrian lightly on the buttock and the pedestrian fell down. He was asked if it was the bumper or the bonnet which hit the buttock and he said it was the round corner. He said the left front corner of the car brushed lightly. He was asked if he needed his headlights to see clearly and he said he did not. He agreed it was 6 p.m. He was asked if it was in the winter and he said it was in the summer. He was asked to reconsider and he said he could not recall. He said that the head-lamps were not turned on when he turned into Cloudview Road. His evidence was interposed by the evidence of two doctors called by the Defence. When the 2nd Defendant resumed his evidence, he gave evidence that the head-lamps were not turned on.. He said the pedestrian was very fast and he dashed out from the rear of the vehicle. He was asked if the corner of the car became dented and he said that there was no dent. It was said that the left corner of the car was dented, but he was not sure if the dent was caused by the impact with the pedestrian. He admitted that it was true that the left front corner of the car was dented. He said that the speed of the car just before the impact was about 10 mph.
22. In relation to the allegation that he saw the Plaintiff jogging in the months following the accident, he said that two months after the accident, he saw the Plaintiff running on the road but showing no care for his own safety. He said that the last time he saw the Plaintiff running was in 1997 when the Plaintiff was in the vicinity of Quarry Bay. He said that he had seen the Plaintiff run on Cloudview Road and in the vicinity of Victoria Park, and the last occasion was in 1997 when he saw him in King’s Road. He was asked if he still maintained that he did not have his head-lamps on and at first he said “Right”, and then said he did not remember. He was reminded that the day before he had said that he did not turn on the head-lamps and his reply was “I said I did not remember. I did not say it was summer time.” He was reminded that in his witness statement he had mentioned that a dent was found on the left side of his employer’s vehicle’s bonnet.
23. In re-examination he was asked whether at the time of the accident, the street lamps were on and he said that they were not on yet. He was asked if he was sure and he said he did not remember. He was asked if he had switched on any lights on his car, and he said he did not remember. He was asked if the stationary vehicles on the opposite carriageway had their lights on, and he said he did not remember.
Defence’s medical evidence
24. The first medical witness called by the Defence was Dr Karan Singer. Dr Singer is a psychiatrist and had examined the Plaintiff on 25th February 1998 for a total of 3¾ hours at his clinic and on 28th February 1998, he conducted a telephone interview of the Plaintiff for 15 minutes. Dr Singer’s report is dated 11th March 1998. In the report, Dr Singer noted that during the examination, the Plaintiff went into profused and unnecessary details of things and often went off at a tangent and so it was difficult to get straight answers from him. Dr Singer said that was what he called pressure of speech, namely that the Plaintiff talked rapidly and tended not to stop in spite of frequent interruptions. Such speech, according to Dr Singer, was characteristic of Obsessive-Compulsive Personality Disorder. He said that this disorder predated the accident and the disorder is characterized by enduring patterns of behaviour or experience that commonly exists from an early age. The stresses of the Plaintiff’s involvement with litigation and of the problems that such involvement causes — financial, occupational, recreational and social — are the main causes of the Plaintiff’s psychiatric symptoms. In Dr Singer’s opinion, this disorder influenced the cause of the Plaintiff’s condition post-accident. Any physical disability that he suffered as a direct result of the accident would be doubly stressful and magnified because of his perfectionism. To someone who overvalues his body and health, any threat of injury to these is particularly stressful. While not all marathon runners have obsessive-compulsive disorder, marathon running has with its inflexibility, pre-occupation with mental control and the high amount of devotion required does exploit obsessive-compulsive tendencies. He said that people with this disorder are vulnerable to depression. However, he thought that the Plaintiff was not now suffering from any such depressive disorder. The symptoms which the Plaintiff now had are those of normal people who are anxious or unhappy when facing stresses or losses such as litigation or difficulty with jobs and do not amount to a psychiatric disorder. In addition, his psychological state has aggravated his perception of pain in the neck, achilles tendon and left buttock. The prognosis by Dr Singer is that the Plaintiff’s depressive mood and sleep impairment should dissipate rapidly with settlement of the litigation. He does not require treatment for these. In Dr Singer’s view, the current loss of earning capacity is 2% and impairment of the whole person is 2%. Permanent loss of earning capacity, after litigation, is 1% and impairment of the whole person is 1%.
25. In Court, Dr Singer testified that the disorder was something which the Plaintiff had suffered as from early life and it carried on till after the accident. The Plaintiff had very high valuations on morality, ethics and rules and these traits are excessive and are at the expense of carrying out a task. He said that the personality disorder of the Plaintiff was a major contributory factor to the way that the Plaintiff carried on the litigation — suspicious of lawyers, doctors, the police and the manner of conducting the case. He said that any threat to the perfection of the bodies of sufferers of this disorder would be felt more than by other people. Dr Singer said that the accident was only a minor cause and that the major cause was the personality disorder. He said that what the Plaintiff now has is what normal people would have under these circumstances.
26. He was asked about the recommendation of Dr Fung that treatment was desirable for the Plaintiff and Dr Singer disagreed. Dr Singer said that after the litigation if the Plaintiff did not find a job, the symptoms would continue. He said that treatment for this kind of disorder is not easy because many patients do not recognize their disorder and will not be co-operative. He was cross-examined by the Plaintiff and the Plaintiff spent quite a bit of time correcting minor factual matters stated in the “history” part of Dr Singer’s report. To my mind, this bore out exactly what Dr Singer was saying about the Plaintiff, that he was obsessed with details of factual matters. In cross-examination, Dr Singer said that his opinion is that with the Plaintiff’s present mental state, the Plaintiff would be capable of earning what he was earning prior to the accident. He said that because the Plaintiff was not a professional marathon runner, any effect on the Plaintiff’s former running capability should not affect the Plaintiff’s earning capacity.
27. The next medical witness called by the Defence was Dr Jake O’Donovan. Dr O’Donovan is a general and traumatic surgeon and had examined the Plaintiff on 28th August 1997. His report is dated the same day. In his report he said that he found that the Plaintiff tended to exaggerate his weakness and difficulties, but when told to perform properly, he was perfectly able to do so. In Dr O’Donovan’s opinion, the Plaintiff’s complaints were not borne out by his examination which was relatively normal. As regards the Plaintiff’s neck, the doctor said that he has a good range of pain-free movement with radiation of slight pain to left root of neck posteriorly. Clinically, his neck is well recovered from his fractured odontoid and the rest of his neck is really unremarkable. In the report Dr O’Donovan said :
“He claims difficulty in making his left finger at first, but can easily make one when encouraged. In fact he has a trigger 5th left finger unrelated to his accident.”
He assessed the impairment of the Plaintiff’s neck as 15% with his healed fractured odontoid a disability to the extent of 5%. He assessed the impairment of the Plaintiff’s back to be 5% and a disability of 2% to the whole man. He assessed loss of earning capacity as 10%. In the doctor’s opinion, the Plaintiff has achieved the end stage of his injury recovery but he does need psychological help to get him a job. In the report, Dr O’Donovan said that the Plaintiff was still running for one hour a day and that was good. He said in the report that the Plaintiff had fully recovered from the injury and in Court, he amplified that by saying that all the soft tissue tearing associated with the odontoid was gone and the Plaintiff was left with a little stiffness. He said that the extent of the Plaintiff’s loss of earning capacity was 10% and that the Plaintiff would be able to take up his pre-accident job after his recovery.
28. In Court he was shown Exh.P3 which was a document written by the Plaintiff to bring up to date his complaints of what he was suffering from. Dr O’Donovan said that the Plaintiff’s left little finger was capable of moving. In relation to the neck, Dr O’Donovan said there was a full range of movement. In relation to the complaint that it was difficult to raise the left hand upright and control movement of the left little finger, Dr O’Donovan said that he was observing the Plaintiff in court that morning and he saw that the Plaintiff had full range of movement of his left little finger and that he was able to raise his left hand. He said the stiffness in the neck was all that the Plaintiff had. He said that during the examination he observed the Plaintiff walk into the room. He observed him walk along the corridor and take off his clothes and shoes. He said that the Plaintiff did not have a paralyzed little finger. He said that that morning in Court he noticed that the Plaintiff was flexing well. His use of his left little finger was really very good. He was asked if the Plaintiff would be able to earn as much as before and he said that the Plaintiff could do a normal day’s work. He said that the 10% loss of earning capacity was arrived at on the basis of 4% for the neck and 6% for the back-ache. He said that the Plaintiff had told him in August 1997 that he was still engaged in marathon running and regularly ran a few times a week. He had taken part in more than one marathon since the accident. Dr O’Donovan expressed the view that a person had to be 100% fit to do a marathon.
29. He was cross-examined and he said that the fracture of the odontoid was completely healed. He said that the Plaintiff would get some arthritis in the joint of his neck and this would be 1-2% more than the average person. He said that the 15% impairment of the Plaintiff’s neck took into account that in future his neck would stiffen a bit more than other people. As regards the spine, Dr O’Donovan said that marathon runners have very little problems with their spine because anyone who can run for two hours and twenty minutes would have no problem with his spine. He said that without the accident, the Plaintiff might still get stiffness of his neck because of the running.
30. The last witness called by the Defence was Dr David Fang. Dr Fang has been an orthopaedic surgeon since 1973 and is a fellow of the Hong Kong Academy of Medicine. He first saw the Plaintiff on 15th June 1994, 7th September 1994 and 5th October 1994. His first report is dated 27th January 1995. In that first report Dr Fang said that, in summary, despite prolonged treatment, the Plaintiff still had persistent mild left sciatic pain. He said that permanent disability was not expected, but it was difficult to anticipate how long the pain would last. The second report by Dr Fang is dated 13th June 1996 and that was based upon the examinations of the Plaintiff on 26th April 1996 and 2nd May 1996. In that second report Dr Fang said he believed that the Plaintiff might be suffering from irritation of the left sciatic nerve due to some form of chronic neuritis. He said this was not a serious condition as the function of the sciatic nerve was still intact. The third report is dated 29th December 1997 and is based upon the examinations of the Plaintiff by Dr Fang on 16th December 1997 and 20th December 1997. Dr Fang said that an x-ray taken of the cervical spine showed definite healing of the previous odontoid fracture with no obvious evidence of degenerative change. Dr Fang said the Plaintiff was obsessed with legalities relating to his injuries but he was not a malingerer. His anxieties would be very much allayed when legal proceedings were concluded. It was likely that he would seek medical consultation intermittently for an indefinite period in the future. The last medical report by Dr Fang was dated 26th January 1998 and it said that the Plaintiff should have an orthopaedic consultation annually for the next five years at the cost of $500-$1,000 per consultation. Dr Fang said the Plaintiff might need physiotherapy for his neck pain and pain in the left upper and lower limbs. He thought that an annual course of physiotherapy would be sufficient and that this would cost $4,000 per year for five years.
31. He was cross-examined by the Plaintiff and he again reiterated that the Plaintiff was not a malingerer and at no time did he exaggerate his symptoms. Dr Fang said there would be some permanent disability in the persistent numbness in the left little finger and in the restricted movement of the neck. He thought that the Plaintiff would not recover from the limit to the movement of the neck. He said that part of the symptoms might improve, but it was unlikely that everything would disappear.
Findings of facts on liability
32. Having considered the evidence of the Plaintiff and the 2nd Defendant, I make the following findings of facts :
1) The Plaintiff had dashed across the down-slope of Cloudview Road and then across the up-slope of Cloudview Road.
2) Before he crossed the up-slope of Cloudview Road, he did not stop to check the traffic before crossing that part of the road.
3) The 2nd Defendant did not come to a complete stop in the pocket of Tin Hau Temple Road before turning right into Cloudview Road.
4) The 2nd Defendant had slowed down at the junction of Tin Hau Temple Road and Cloudview Road and on seeing no lights of cars coming down Tin Hau Temple Road, had then immediately turned right into Cloudview Road at a speed of about 40 kph.
5) The 2nd Defendant’s vehicle came to a stop after the collision at the spot about 21 metres from the road junction. According to the Road Users’ Code, on a dry road, an alert driver travelling at 40 kph would need a stopping distance of 20 metres.
6) The collision took place soon after the 2nd Defendant had entered Cloudview Road and at a spot about 8 to 10 metres from the road junction.
7) The Plaintiff was wearing a black vest which would make it difficult for drivers to see him.
33. In making the above findings of facts, I have necessarily discounted and disbelieved the evidence of the 2nd Defendant that his headlights were not on on the day in question and that he had turned into Cloudview Road at a speed of 10 mph and whilst he was engaged in 1st gear. I accept the Plaintiff’s evidence that as soon as he stepped onto the up-slope of Cloudview Road he saw this light-emitting object coming at him at a high speed. I find the 2nd Defendant liable in negligence for : -
(a) failing to come to a complete stop at the junction of Tin Hau Temple Road and Cloudview Road to check on the traffic;
(b) diving at a speed which was too fast in the circumstances;
(c) failing to keep any or any proper lookout for pedestrians who may emerge from between the stationery vehicles.
I find that the Plaintiff had failed to keep a proper lookout or to have sufficient regard for his own safety when crossing Cloudview Road and that by running out from between two vehicles, he did not give a reasonable opportunity to drivers to avoid the collision. On the basis of the above findings, I find that the 2nd Defendant is liable for the accident, but only to the extent of 50%, and the Plaintiff is 50% liable for contributory negligence.
Quantum
Pain, suffering and loss of amenities
34. The injuries sustained by the Plaintiff in the accident were fractured odontoid process of C2 vertebrae as well as soft tissue injury at the left thigh and low back. He was hospitalised for about three months. The fractured odontoid has healed, giving a good range of pain-free movement of the neck. He, however, complains of a number of symptoms, most of which are not supported by objective clinical findings. I find that he has not exaggerated his symptoms but because of his pre-existing mental state, he sees his symptoms to be more serious than they actually are. I accept Dr Singer’s evidence that the Plaintiff has an Obsessive-Compulsive Personality Disorder which existed prior to the accident. In addition to his physical injuries, the Plaintiff also suffered from depression between mid-1992 and early 1994 mainly, if not solely, as a result of the treatment he received from the Police and/or Government doctors and/or his former solicitors as well as the stress of the present proceedings. However, since this has little or no causal connection with any negligence on the part of the 2nd Defendant, I am not holding the Defendants liable for this. It would appear from the evidence of the three doctors, Dr Singer, Dr Fung and Dr David Fang, that a lot of the problems that the Plaintiff presently suffers from should cease to exist or would improve markedly after the present court case is over. I therefore find damages for pain, suffering and loss of amenities on the following basis :-
a) he has suffered fractured odontoid which has healed;
b) he has also suffered soft tissue injury at left side and low back;
c) he has mild pain or discomfort which may increase slightly as he gets older; and
d) his mild depressive mood will likely dissipate upon conclusion of these proceedings.
I therefore assess damages for pain, suffering and loss of amenities in the sum of $250,000. That would represent about 54% of the current minimum sum for serious injury as stipulated in Chan Pui Kee v. KMB [1996] HKLJ 395 where the minimum sum for serious injury was $400,000. Adding about 15% to that sum on account of inflation, the current minimum would be $460,000.
Past loss of earnings
35. The Plaintiff took four months’ sick leave after which he returned to work for the same company as a sales engineer selling industrial products. He was dismissed by that company in May 1994. The reason for the dismissal after 11 years of service appears to be that he became too much involved in the litigation of the present case. After his dismissal, he spent time preparing for the case and also studying for various business diplomas. His next job was in October 1995 when he worked as a marketing manager in a company which sold electrical stationary and home appliances. He was dismissed from that company in December 1995. In February 1996, he found another job as a sales manager, selling computer software, but this employment was terminated on 31st March 1996. In June 1996, he started work as a sales manager with a company based in China, but he left this job in the middle of July 1996 to prepare for the hearing of the Defendant’s application to strike out his claim for want of prosecution. Since July 1996, the Plaintiff has remained unemployed despite writing a large number of letters to seek jobs.
36. I find that when he returned after the four months’ sick leave to work for his former company, he had recovered sufficiently to be able to resume his former job. He was dismissed not because of his work being affected by his injuries but because he became too much involved in the litigation of the present case. After his dismissal, he intended not to work so as to prepare for the case and to embark on further studies. Subsequently he was able to find work in other companies, but these services were terminated for various reasons and not because of the injuries he sustained leading to his work being unsatisfactory. Since the middle of July 1996, he has remained unemployed and I find that that is because of reasons other than the Plaintiff’s injuries rendering him unfit to be employed by any of the companies to whom he wrote application letters. Consequently, I find that the Defendants should only be held responsible for the Plaintiff’s loss during the four months’ sick leave. On the basis of his monthly income before the accident being $22,430, I find that damages under this head should be $22,430 x 4, which brings the total to $89,720.
Loss of future earnings/loss of earning capacity
37. Dr O’Donovan and Dr Singer were both of the opinion that the Plaintiff would be able to return to his pre-accident work. I therefore find that there should be no award for loss of future earnings. However, because of the remaining injuries, which may or may not disappear after the passage of time, I find that the accident has caused the Plaintiff to be disadvantaged in the labour market. I therefore award $60,000 for loss of earning capacity.
Costs of future treatment
38. I accept the evidence of Dr David Fang that the Plaintiff would require some treatment for his present symptoms in the future. Dr Fang recommended that the Plaintiff should have an orthopaedic consultation annually for the next five years at a cost of $500-$1,000 per consultation. For this purpose, I award the Plaintiff $5,000. Dr Fang also said that the Plaintiff would need physiotherapy for his neck pain and pain in the left upper and lower limbs at a cost of $4,000 per year for an annual course of physiotherapy. On the basis of Dr Fang’s recommendation that this should be done for the next five years, I award the Plaintiff $20,000, making a total of $25,000 under this head.
Special damages other than past loss of earnings
39. According to paragraph 32 of the Plaintiff’s statement, the Plaintiff has incurred the following expenses :
| Medical expenses | $110,784 | |
| Travelling expenses | $11,100 | |
| Tonic food | $15,000 | |
| Damaged watch and spectacles | $1,100 | |
I allow these items of expenses except for the medical expenses, I will deduct the sums of $2,000 and $15,000 for the fees for Dr Fang’s and Dr Fung’s medical reports respectively. As for tonic food, because it is the Plaintiff’s evidence that such food was not taken on medical advice, I would only allow the sum of $5,000 under this head. Therefore, the items I allow under this head are :
| Medical expenses | $93,784 | |
| Travelling expenses | $11,100 | |
| Tonic food | $5,000 | |
| Damaged watch and spectacles | $1,100 | |
| Total : | $110,984
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Interest
40. The accident occurred on 7th December 1988 and the writ was issued on 4th October 1991. Thereafter the Plaintiff took no active steps to prosecute the claim until the Defendants applied to have it dismissed for want of prosecution, first, in 1994, then again in 1996. According to Lam Fong v. On Lee & Co. [1992] HKLJ 100, this constitutes a special reason for departing from the usual basis for awarding interests. I find that if the Plaintiff had proceeded with due diligence to prosecute this action, the action could have been heard about three years from the date of writ, so I am allowing interest only to run from the date of the accident until the end of 1994. Therefore, the damages for pain, suffering and loss of amenities will carry interest at 2% per annum from the date of service of writ until the end of 1994. In addition, the special damages will carry interest at 5.84% from the date of accident to 31st December 1994, and from date of judgment, interest will be at judgment rate.
Sumary of calculation
| A) PSLA | $250,000 | |
| B) Past loss of earnings | $89,720 | |
| C) Loss of future earnings/loss of earning capacity | $60,000 | |
| D) Costs of future treatment | $25,000 | |
| E) Special damages other than past loss of earning | $110,984 | |
| Total : | $535,704 | |
| Less 50% contributory negligence | $267,852 | |
| Total : | $267,852 | |
41. I give judgment for the Plaintiff in the sum of $267,852 and costs to be taxed if not agreed.
| | (Peter Nguyen)
Judge of the Court of First Instance,
High Court |
Plaintiff Chan Siu-lun, in person
Mr Herman Poon, inst’d by M/s T.S. Tong & Co., for Defendant