WANG SIZHE v. NG KWOK WAH

HCPI 933/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 933 OF 1999

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J U D G M E N T

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1. This is an assessment of damages for personal injuries suffered by this infant Plaintiff, now almost 14 years old, in a road accident in September 1997, a little over three years ago. The issue of liability has already been resolved by an agreement that the Defendants are liable for the accident to the extent of 90 per cent. This agreement was approved by the Court on 13 June 2000.

General Damages - Pain and Suffering and Loss of Amenity

2. His principal injury was to his head. There was a right fronto-temporal epidural haematoma and an emergency craniotomy was carried out. Fortunately he made a rapid recovery from this state of affairs but there was right optic nerve and right trigeminal nerve involvement in the injury.

3. There was a tear of the posterior cruciate ligament of the left knee. This was treated conservatively with physiotherapy.

4. I propose to deal with this orthopaedic aspect first. The latest reports are by Dr Arthur Chiang on behalf of the Defendants. It is a notable feature of this case that I have been presented with an agreed set of reports on all fronts, the parties lawyers having constructively and beneficially applied their minds to this end.

5. At present this boy has a good range of movement in his left knee. Any question of reconstructive surgery is premature - it should not be considered until he is 16 to 18 years old. There remains a "likely chance" that as he gets older there will be some degenerative change in the knee. This will be more incapacitating if he has a physically active lifestyle. For the present there should be an emphasis upon strengthening his thigh muscles and some sporting activity in order to reduce the current symptoms. I suspect a return to some sporting activity and closer involvement with his peers in their normal day-to-day lifestyle will boost his own confidence.

6. His residual visual problem is not insignificant. Although stabilised he has traumatic optic neuropathy in his right eye resulting in 45% permanent visual impairment in that eye. After treatment in Hong Kong his mother took him to the mainland to see if further recovery could be achieved particularly in relation to the problems with the right eye. Her belief is that there was a degree of improvement and so in her own mind and observation that course was justified. If there had been no benefit from the treatment I am nonetheless of the view that, given the overall circumstances, the attempt was well worth making. There is also peripheral constriction of the visual field in the right eye producing a further 18% impairment. The consultants' assessments of his overall disability on the eye ranges between 55-60%. There is no known effective treatment and his condition is permanent. In Dr Tsui's view, his visual state precludes him from taking up professions that require good stereoptic vision. He needs the normal annual checks for children of his age, and Dr Paul Cheung would extend that until he is in his early to mid twenties. This seems entirely reasonable given the degree of optic neuropathy.

7. What of his current neurological and cognitive problems? He has in fact made a remarkable recovery as the reports of the consultant neurologists make clear, and as is confirmed by his progress at school. I accept, as both consultants indicate, that with a patient of this age there is room for further improvement over the next two years or so.

8. His mother indicates that the frequency and duration of his headaches have lessened. He no longer takes painkillers for their relief. Although he is clearly doing well at school and is in the top 12-15%, he still has problems in concentration. This is manifested in my view by the fact that he is spending longer on his homework and often is not finished before 12 midnight or 1 a.m. For a boy of his age I find this disturbing. I accept in part Mr Ramanathan's argument that as one gets older and more advanced in the school curriculum, so the amount of homework increases. Also, and this too is incontrovertible, peer pressure, cultural tradition, and understandable parental authority will keep a child's nose in his books but growing children need rest and sleep as much as they need varied stimulation in their growing years. These extra hours of homework illustrate the persisting problems indicated by the consultant psychologists.

9. Professor Lee noted an impairment in logical and sequential reasoning with slowness in a visual motor copying task. He has difficulties in concentrating and focusing his attention, particularly when passive attention is required in school. Dr Chan is in broad agreement with Professor Lee. Both consider he is likely to attain university entrance and with the improvement anticipated, one's concerns over the extra hours of homework necessitated by his current difficulties, should diminish.

10. There is, as a final matter of note, a permanent scar on the right side of his forehead which is in the form of a depression in the soft tissue. There is no discolouration. It is roughly 1 1/2 cms by 1 1/2 cms. It is not unsightly but is a permanent reminder of the trauma. His hairstyle presently conceals it.

11. The salient features that determine the level of damages under this head are therefore the skull and brain injury which has left him with permanent visual damage and some as yet persisting cognitive deficit. The injury to the knee may require some surgical treatment in a few years time. Given his intellectual capacity although he is highly likely to attain university entry, some professional careers will inevitably remain closed to him. His crucial developmental years - from 10 years to roughly 16 years - have been disrupted to a significant extent. In my view the proper figure is $750,000.00.

Loss of Earning Capacity

12. There are a number of factors which make this a particularly difficult exercise, not the least being this boy's age and the fortunate substantial recovery in his cognitive faculties. There are however two particular features which support the view that there is a loss of earning capacity. One is the fact that certain professional occupations will be closed to him by reason of the visual defect. The second is that there is a likelihood at some stage of degenerative change affecting the nature of his job by reason of the consequent limitation on his physical activity. However this is less important than the first point since all the indications are that he will remain a high achiever. A proper allowance under this head is $350,000.00

Future Expenses

Eye-treatment

13. It is reasonable to make some allowance for private treatment. This has to reflect accelerated receipt but I think the 10 year period is reasonable. I will allow $3,500.00.

Neurological

14. This is agreed at $1,000.00.

Orthopaedic

15. The need for physiotherapy is agreed. Dr Arthur Chiang suggests 30 sessions at $300.00 each, a total of $9,000.00. This is allowed as reasonable and necessary.

Psychotherapy

16. Both psychologists agree the need for 5 sessions. These have started. The fee paid is $1,500.00 per hour. 5 sessions at that rate total $7,500.00 and this is allowed.

Travelling Expenses for Treatment

17. This is agreed at $7,500.00.

The total allowed for these future expenses is $28,500.00

Special Damages

18. There are a considerable number of items. Some are agreed but there is disagreement in respect of the larger items. I proposed to comment only on those items which remain disputed. (Please note that there is an inconsistency in respect of an item for travelling expenses to/from Solicitors' office. The Defendant's answer is put at $400.00. The Plaintiff has accepted this and reduced his current claim to $300.00. This seems a misprint. I have assumed that it should be $400.00).

Items for Hospitalisation and After Discharge

19. Claimed at $1,170.00, I accept that these are reasonable. They are not itemised themselves and there may be an overlap with normal expenditure. I will allow $1,000.00.

Bird Nest

20. This is excessive as a claim for specific dietary needs. I will allow it at the amount countered by the Defendants of $5,000.00.

Shark Capsules

21. This item, with the previous one and the next two following, fall within a controversial area on which authority has discouraged allowance of such expenditure save to a modest extent. Although this itself is a small item I doubt its reasonableness other than as an occasional supplement. I allow the amount proposed by the Defendants at $100.00

Chinese Herbal Medicine

22. For the reasons set out above I will allow it at the Defendant's figure of $1,100.00.

Additional Nutritious Food

23. The original and revised amounts claimed are not reasonable as a claim against the Defendant, but I do not doubt that such expenditure was incurred. I find the Defendant's counter figure a generous one. $10,000.00 is allowed.

Expenses for Medical Treatment on the Mainland

24. I accept the mother's evidence as to these. I have indicated that it was entirely reasonable for his parents to seek out any reasonable avenue for further improvement. This was such.

Miscellaneous ($5,000.00)

24. I find this too vague an item and understandably the Defendant has objected to it. I am unable to allow it.

Equipment for Treatment ($420.00)

25. I am at a loss to understand what this is or how it features in his treatment. I am not satisfied that it is a valid claim and I do not allow it.

Herbal Medicine ($380.00)

26. I have already allowed a sum for composite Chinese herbal medicines.

27. There may be an overlap. I have doubts as to whether at this stage, if a separate item, it was justified and I do not allow it.

Travelling Expenses - Shenzhen Trip

28. I allow these but not the herbal medicine purchased.

29. According to my calculation the total figure is $61,370.00 but this needs checking.

Voluntary Care and Attention

30. This is in effect the mother's loss of earnings from the time of the accident until she returned to work - but in Hong Kong - thereafter suffering a partial loss of earnings since she was unable to obtain as responsible a position with the former level of remuneration.

31. It is entirely reasonable for her to have given up her work. When she was able to return to some form of work it was also entirely reasonable in my view that she should want to stay in Hong Kong to assist her son's recovery and provide emotional and direct maternal support.

32. The sums claimed are:

Date of accident to February 1998:	$162,141.00.
March 1998 to date of trial:	$318,560.00.

The overall total is $480,701.00 and I allow this.

33. There is no claim beyond the date of trial. I see some force in an argument that in any event at this stage of her son's adolescent life he needs full family support. As she stated she is a career lady and may well revert to working on the mainland, perhaps when her son has left G.C.S.E. behind him.

Summary

*	Pain and Suffering	$ 750,000.00
	Loss of Earning Capacity	$ 350,000.00
	Future Expenses	$ 28,500.00
*	Special Damages	$ 61,370.00
*	Voluntary Care -
	Mother's Loss of Earnings	$ 480,701.00
		$ 1,670,571.00

34. The Plaintiff is entitled to judgment for 90% of this - being $1,503,513.00.90 (plus interest) - and costs to be taxed, if not agreed, on a Common Fund basis. The interest is to be calculated and agreed in accordance with the provisions as to the rate, period and heads of damage which qualify (those which qualify for interest are marked with an *). Credit will have to be given for the interim payment.

35. I should not let the opportunity pass of expressing my appreciation of all the practitioners concerned in presenting their respective cases economically, efficiently and succinctly, much collective effort having produced substantial agreement and a sensible bundle of documents which was well ordered and comprehensive.