AU WANG CHEONG v. YAN WING-WAI

CACV 385/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 385 OF 2001

(ON APPEAL FROM HCPI 710 OF 1999)

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J U D G M E N T

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Hon Mayo VP (giving the judgment of the Court):

1. This is an appeal from a judgment of Deputy High Court Judge Muttrie.

2. The defendant admitted liability for an accident when the plaintiff suffered personal injuries when, as a pedestrian, he was knocked down by a car on a crossing.

3. The Judge awarded him damages of $357,045.00. It is the plaintiff's contention that this award was insufficient in all the circumstances.

4. The accident occurred on 6 July 1996 when the plaintiff was 11 years old.

5. The most serious injury suffered by the plaintiff was a head injury which it was claimed resulted in neuropsychological and neurobehavioural difficulties.

6. The plaintiff complains of monocular diplopia in both eyes. As was pointed out by the Judge this involves the plaintiff in seeing double even when the other eye is covered.

7. It was contended that as a consequence of the plaintiff's head injury there had been a marked deterioration in his school work.

8. At the time of the accident the plaintiff had just completed his primary 5 education. His examination results were very good.

9. In the following academic year in primary 6 his results while good were not as good as those at the completion of his primary 5 year.

10. His performance deteriorated significantly with his secondary education.

11. In addition to this there was evidence that following the accident there were some behavioural problems.

12. Hitherto he had been a well-behaved and well adjusted boy.

13. After the accident he had not enjoyed a good relationship with his mother and his sister. However he appeared as before to get on well with people away from the family.

14. The main issue which had to be determined by the Judge was the extent to which the problems which were referred to by the plaintiff were attributable to the accident.

15. At the trial the plaintiff mainly placed reliance upon two medical experts.

16. The first was Dr Brian Choa a neurologist and the second was Dr Timothy Law a neuropsychologist.

17. The defendant called two experts Dr Edmund K.W. Woo a neurologist and Professor Peter W.H. Lee a consultant clinical psychologist.

18. In the most general terms we think that it can be said that while the Judge was impressed by the evidence and reports of all of these experts he attached more weight to the testimony of the defendant's experts than he did to the plaintiff's.

19. However this appeal is confined to two issues.

20. The first is the fact that the Judge made no award for any loss of future earning capacity and the second is that he declined to make an award for the costs of care of the plaintiff incurred by his mother who gave up her job to enable her to look after him.

21. The claim for loss of future earning capacity was largely based upon the plaintiff's complaint that he was still suffering from monocular diplopia.

22. The evidence in relation to this was canvassed at some length at the trial.

23. The Judge accepted the plaintiff's evidence that he did suffer from this. However on the basis of all of the medical evidence which was before him the Judge did not consider that the severity of the complaint was such as to amount to a serious disability.

24. In this connection the Judge placed considerable reliance upon the evidence of Dr Edmund Woo who was unable to discern any obvious neurological cause for the complaint.

25. Dr Woo's opinion also appears to have been reinforced by the opinion expressed in a report made by Dr Paul M.K. Cheung an ophthalmologist dated 8 November 1999 when he stated that the plaintiff was not suffering from any permanent disability from an ophthalmological point of view as a result of the accident.

26. The Judge summarised his conclusions at p. 29 of the appeal bundle in this way:

"The independent monocular diplopia complained of by the plaintiff, as described by him, does not appear to be explainable either by Dr Choa or Dr Woo. I did not, however, have the impression and neither did any of the experts that the plaintiff was making it up. I think I have to take it as more probable than not that he does suffer from it. Yet it cannot be very serious. That is what the plaintiff himself told Dr Choa in the beginning. It does not stop him from playing computer games for hours at a time, or from doing anything much except maybe throw a basketball at a basket. I doubt that it really affects his ability to read or concentrate to any great degree."

27. What is perhaps of even greater importance is that the Judge was not satisfied on the balance of probabilities that the difficulties the plaintiff had encountered with his studies were attributable to the injuries he sustained in the accident.

28. In this connection the Judge rejected the evidence of Dr Law and accepted the evidence of Professor Lee.

29. The consequence of this was that there was no evidence accepted by the court that the plaintiff suffered any loss of future earning capacity.

30. The Judge was fully entitled to make the findings of fact which he did. Once these findings were made it was inevitable that the claim for loss of future earning capacity must fall away.

31. The second ground of appeal which is being pursued is framed in this way:

"The learned Deputy Judge failed in law and in fact in the assessment of the loss of costs of care incurred by the next friend of the Plaintiff:

(a) The accident took place on 6 July 1996 when the Plaintiff was 11 years of age.

(b) The Plaintiff's mother, next friend, gave up her part-time employment to look after him, which care still continues, and thereby incurred loss of income.

(c) The learned Deputy Judge failed to take into account that such care as provided by the Plaintiff's mother was essential, and that such loss of income is recoverable."

32. It is implicit from the Judge's findings of fact that he did not accept that the plaintiff's injuries were such as to require his mother to give up her job so that she could look after the plaintiff.

33. The Judge's conclusion in this connection is not altogether surprising. It also needs to be borne in mind that amongst the damages assessed by the Judge was an agreed amount of $3,079.00 which represented the mother's loss of earnings for 37 days.

34. We do not think in all the circumstances that it has been demonstrated that it was necessary for the mother to look after the plaintiff full time after the period of 37 days which had been agreed.

35. In this connection it is pertinent to observe that the plaintiff was able to go back to school in September and that would indicate that the plaintiff had to a considerable extent made a recovery from the injuries he sustained.

36. Neither of these grounds can succeed. Accordingly the appeal is dismissed. We make an order nisi that the defendant is to have the costs of this appeal and the plaintiff's costs will be taxed in accordance with the Legal Aid Regulations.