LEE CHEUK HIN v. TANG YUNG FUK AND ANOTHER

HCPI 1133/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1133 OF 2005

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J U D G M E N T

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1.  This is a running-down action in which the infant Plaintiff is suing by his next friend who his mother Madam Grace Fung Yee-shan. 

2.  The Plaintiff was born on 2 May 1998 and most unfortunately he was very seriously injured on 3^rd May , 2003 which was the day following his 5th birthday.  He was in the course of crossing the South Lantau Road near Lamp-post FB0047, accompanied by his mother and their friends and some other children, when he was knocked down by a motor vehicle, registration number BJ 110, driven by the 1st Defendant. 

3.  The driving was of the worst kind that one can imagine.  As he approached the zebra crossing the Defendant overtook another vehicle that was in the process of slowing down, the driver of that vehicle having seen that there were people on the zebra crossing, and having done so the Defendant then cut across the vehicle that he had just overtaken and did so in such a way that he gave himself no opportunity to see anybody on the zebra crossing.  He collided with the Plaintiff who was dragged under the wheels of his vehicle. 

4.  To make matters worse, the Defendant had consumed alcohol in excess of the lawful limit.  He had obviously been drinking, and I can take this shortly:  the police were called and, upon inquiry, it was clear that the 1st Defendant - the 2nd Defendant I will come to in a moment, it being the insurance company - was to blame for this.  They arrested him.  He was prosecuted for dangerous driving in addition to driving with excess alcohol, to which offences he pleaded guilty before the magistrate and was fined and disqualified. 

5.  It really goes without saying, against this factual background, that this accident was caused by the negligence of the 1st Defendant in not driving properly, as he should have been, as he approached a zebra crossing.  So there must be judgment in favour of the Plaintiff against the 1st Defendant.

6.  The 2nd Defendant is in the action because it is the insurer of the 1st Defendant and for that reason has a sufficient interest in these proceedings to be joined as a defendant.  It is the intention of the 2nd Defendant, I am told, to seek an indemnity against the 1st Defendant, but that is a matter which really is something which I am not concerned with today.

7.  The damages have now been agreed between the parties, subject to the Court giving its approval, this being a case with an infant Plaintiff, in the sum of $1.45 million.  I can briefly describe the injuries which are well set out in the medical reports, as they are well summarised in the statement of damages.

8.  The main injury was a serious head injury from which, fortunately, due to some very quick reaction on the part of the Emergency Services which arranged for the Plaintiff to be helicoptered to the Eastern Hospital from Lantau Island, the doctors were able to treat the Plaintiff appropriately and from which he was able to recover physically from that injury reasonably quickly.  The other serious injury was a broken leg which required the whole leg to be encased in plaster.

9.  The main aspect of damages in this matter relates to the award for pain, suffering and loss of amenity.  The other really controversial aspect, as it was, before this matter could be settled, was a claim for future loss of earnings.  The position is that the Plaintiff is a very gifted young man.  He is now 11 years old and he has shown early promise from his days in kindergarten.  Testing has shown that his IQ is in the very superior range.  It has been tested more than once and it shows that his IQ stands at 141, which is very impressive indeed.

10. These injuries unquestionably put this matter into the serious range of injury and the claim has been settled, this aspect of it, at $500,000, and that is an amount which is well within the appropriate range and I approve that award.

11. The next and much more difficult aspect is the question of future loss of earnings and future loss of earning capacity, and this matter has been investigated with great care on both sides.  The Plaintiff has instructed Professor Peter Lee of Hong Kong University who is a very experienced clinical psychologist, and the Defendant has engaged Dr Calais Chan who is equally experienced but, regrettably, they were not really able to have much of a meeting of minds on this aspect. 

12. Professor Lee took the view that this head injury has resulted in something of a personality change, if I can describe it in that way.  Whereas before, the child, albeit as a kindergarten pupil, had been making very good progress, this injury had seemed to induce a change in his mood and an inability to concentrate, to lose his temper and this has caused Professor Lee to think that this is something that might well reflect itself in adult life in such a way that the Plaintiff is not perhaps going to be able to find the sort of employment that his obvious intellectual talents would have enabled him to obtain and that as a result of this he might only be able to obtain less well-paid employment.  This point of view is not supported by Dr Chan.  There is also evidence from neurologists on each side butthis is also the subject of disagreement.

13. Any judge approaching this matter will have to engage in quite a lot of crystal-ball gazing.  How is a judge to assess what a child of 5, now 11, is going to achieve in adult life where it is quite clear from the present school reports that he is doing encouragingly well?  So I think, very sensibly, if I may say so, those advising the Plaintiff and the Plaintiff’s parents, have agreed to accept, I think, an entirely proper amount of $750,000.  I would have had to approach this on a global assessment of it and it strikes me that this is an entirely proper amount to accept and I approve it.

14. The next area of damages, if I can describe it in this way, are special damages encompassing travel expenses, tonic food, additional expenses for the Plaintiff’s tuition, loss of earnings for the parents who have taken time off - and I think quite properly have taken time off because these were very worrying injuries and they took time off to be at home and to care for their son.  These have been agreed at $120,000 on a global basis and I think, again, doing one’s best, it is always difficult to advise a client in these sort of circumstances, but I think Mr Lam has been correct in advising a settlement under this heard of damages at $120,000, and I approve this as well. 

15. That leaves over future medical expenses.  There are three heads here:  orthopaedic treatment - a small sum is claimed, but I really do not think that this is at all a problem now.  He seems to have got over his leg injury and that is very nice to see.  He is playing sport which he enjoys and so forth.  There was a claim for future neurological treatment and I do not think that need figure now.  So it is all down to the expense for future psychological treatment which everybody has been able to agree on is going to be needed.  The amount which has been offered, and has been accepted, is $80,000 which effectively covers all of the psychological treatment.

16. So these four aspects of the claim total $1.45 million and I think I have said enough in the course of going through each of them that I approve this overall amount.  I think it is a proper sum to accept on the basis of full liability which was never going to be an issue in this matter.