HUI YIU WING v. THE REGIONAL COUNCIL AND ANOTHER

HCPI 31/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 31 OF 1998

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JUDGMENT ON ASSESSMENT

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Introduction

1. The plaintiff was injured on 29 June 1994 when he was playing basketball with others at one of the public playgrounds at Wo Hing, Fanling, the New Territories. He was injured when a basketball post collapsed and the board on the back of the basketball ring struck his head. The plaintiff was about 12 years old at the time of injury and 19 years old at the time of the hearing.

2. Liability was admitted and interlocutory judgment with damages to be assessed was entered against D1 ("the defendant") on 19 November 1999. This is the decision on the assessment of damages.

Injuries and Treatment

3. The plaintiff was admitted to the Accident and Emergency Department of the Prince of Wales Hospital immediately. The medical report dated 8 July 1995 of Dr Lam of that hospital shows that the plaintiff was confused and restless on first examination. The Glasgow Coma Scale was 12/15. There was bleeding from the nose and right ear and the right pupil was dilated. Bruises were found at the right occiput and the anterior part of the neck. Emergency CT scan of the brain showed fracture of the base on the skull, traumatic subarachnoid haemorrhage and intracranial air.

4. According to Dr Lam's report, the plaintiff was managed in the Intensive Care Unit on 2 occasions, having developed severe hyponatraemia and convulsion. After his discharge from the Unit, the plaintiff's speech and cortical function was impaired. He was rehabilitated in Shatin Cheshire Home until 26 August 1994.

5. There were subsequent admissions for reassessment by the speech therapist and clinical psychologist.

6. The plaintiff was subsequently examined by Dr Brian Choa and Mr Wong Chee Wing, a registered psychologist (both engaged by his solicitors). He was also examined by Dr Yu Yuk-ling and Dr Wong Chung-kwong (both engaged by the defendant). Dr Choa, Dr Yu and Dr Wong testified at the hearing.

7. Apart from the medical experts, the plaintiff, his employer (Mr Chin Ming-sum), his mother (Madam Wong Lai-ling) and his uncle (Mr Hui Kwok-kwan) also testified. The plaintiff also called Senior Police Inspector Lau from the Police Recruitment Group as a witness.

Pain and Suffering and Loss of Amenities

8. Dr Choa diagnosed the plaintiff's residual symptoms to be as follows:-

(1) his speech remained impaired with difficulty of expression and comprehension. He could converse with others but has difficulties putting ideas together. Things have to be said to him slowly and his reading was poor;

(2) he was irritable at home and at times exhibited threatening but not actually violent behaviour. He could only see things as being right or wrong, with no shades of gray in-between;

(3) formal psychiatric testing showed him to be functioning intellectually at primary 1 or 2 standard.

When Dr Choa tested the plaintiff's higher mental functions, the plaintiff performed surprisingly well. He could recall all details of Dr Choa's office address, and a number of other matters. He was fully oriented and aware of local news. Dr Choa learnt that the plaintiff failed at school in English, Chinese and Science and struggled with algebra.

9. Dr Choa found the plaintiff to be fundamentally a bright child and had retained a lot of skills which do not require language function but his language function is quite markedly affected. He opined that although the plaintiff had made an excellent recovery and might continue to progress, most of the plaintiff's language impairment is likely to be permanent. The school performance also pointed to difficulties with abstract thinking and recovery of this skill is also likely to be incomplete.

10. He assessed the plaintiff's impairment of higher mental functions to be equivalent to a 20% impairment of his whole person. He attributed another 2% impairment for the risk of epilepsy. Based on the difference between a good chance of succeeding in a career in the computer field and the job as an artisan of some kind, Dr Choa estimated the plaintiff's loss of earning capacity to be at least 50%. Dr Choa later maintained his assessment of the loss of earning capacity based on the difference between the pay of a fireman or policeman and that of a messenger or janitor.

11. Mr Wong assessed in his "Psychological Report" that:-

(a) the plaintiff was responsive to questions but tended to give very brief and curt answers;

(b) the plaintiff's speech was superficially normal and spontaneous but there were frequent word-finding difficulties;

(c) there were no discernible difficulties in the plaintiff's receptive language functioning although he was much slower in responding to verbal tasks than motor tasks;

(d) the plaintiff's reading was clumsy and his comprehension of the reading was also below average;

(e) the plaintiff achieved a verbal scale IQ of 66 (mild grade defective intelligence) and performance IQ of 112 (high average intelligence);

(f) the plaintiff's expressive difficulties and word-finding problems had disadvantaged him on the tests of abstract reasoning;

(g) there was a significant drop of over 40 IQ points in the plaintiff's verbal intelligence;

(h) there was a significant discrepancy between the plaintiff's verbal memory function and visual memory function.

Mr Wong concluded that the plaintiff sustained a significant decrement in his intellectual functioning, especially the verbal and language part of his intellect. The plaintiff's reading ability was still at primary 2 to 3 level and would not be able to proceed to university education. On the other hand, Mr Wong considered it fortunate and encouraging that there was so much recovery of the plaintiff's language skills. The plaintiff's young age permitted the right hemisphere of his brain to take over some of the lost functions of his left brain.

12. Mr Wong also said that the plaintiff suffers no discernible physical disabilities or disfigurement. He is still good looking, healthy and strong who, under minor supervision, is quite independent in his daily activities. Mr Wong assigned a 30% impairment to the whole person on that basis and a 50% loss of earning capacity.

13. In another report dated 15 October 1999, Mr Wong said that the plaintiff's mother noticed some marginal improvement in his speech in terms of greater fluency but there were still word-finding difficulties. He concluded there was marginal improvement in the plaintiff's verbal fluency and verbal intelligence (verbal IQ of 72 compared to 66 previously) and his reading abilities (upgraded from primary 2 to 3 to primary 3 to 4 level). The impairment to the whole person was assessed at 25% and the loss of earning capacity remained at 50%.

14. The defence agreed to the reports made by Mr Wong.

15. In Dr Yu's report dated 9 November 1998, he did not disagree with Mr Wong's assessment that there was a drop of over 40 IQ points in his verbal intellectual functioning and his reading abilities remained at primary 2 to 3 level. The impairment to the whole person was assessed at 16% and the loss of earning capacity at 50%. Dr Yu also estimated that if the plaintiff had not been injured, he could have pursued university education. The highest level the plaintiff can now achieve is probably that of a skilled worker.

16. Dr Wong Chung-kwong assessed that the plaintiff suffers from impairment in his cognitive functions:-

(a) impairment in calculation;

(b) impairment in reading ability;

(c) impairment in thinking ability;

(d) mild impairment in recent memory function;

(e) mild impairment in speech function.

Because of the above, Dr Wong estimated that the plaintiff suffers from impairment in his intelligence. He opined that it is unlikely for the plaintiff to be able to cope with tertiary education but he would have no difficulty to survive by himself without the need for any supervision or assistance.

17. The plaintiff becomes bad tempered and gets upset easily. He has few friends because of his poor communication power. He feels insecure and usually stays at home than go out with friends.

18. The plaintiff's mother also testified that the plaintiff lacks awareness of danger. For example, the plaintiff once dismantled an old electrical appliance and when his mother told him he might be electrocuted, the plaintiff replied he would not be at such risk. The plaintiff also told his mother once that if he jumped out of the window (of the 21st floor flat), he would not be killed.

19. I agree with counsel for the defendant, Mr Ng, that this part of the mother's testimony should not be relied upon. There is no indication from either the school which the plaintiff used to attend after the accident, or from the plaintiff's employer or co-workers, that the plaintiff encountered, or put himself in, any hazardous situations. Both Dr Yu and Dr Wong doubted the mother's description in the absence of a pattern of behaviour which shows the plaintiff in fact lacks such awareness. In view of the plaintiff's age and his bad temper, the remarks he made to his mother might well have been merely teasing words. This matter is also relevant to the loss of earnings and will be dealt with again below under that heading.

20. In short, the plaintiff contends that his injuries fall within the lower end (see the plaintiff's written closing submissions) of the "gross disability" category referred to in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 (and also Chan Wai Tong v. Li Ping Sum [1985] HKLR 176; Lau Che Ping v. Hoi Kong Ironworks Godown Co. Ltd. [1988] 2 HKLR 650 and Leung On v. Chan Pui Ki [1996] 2 HKC 565). Courts have repeatedly been reminded that the categories were merely guidelines and should be flexibly applied. Bearing that in mind, the Court of Appeal in Lee Ting Lam described this category as:-

"This comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket" (at p. 660).

On that basis, the plaintiff submits that the appropriate award should be $1.25 million.

21. On the other hand, the defendant argues that the plaintiff's injuries fall within the top end of the "serious injury" category. Alternatively (and at most), his injuries should fall within the middle range of the "substantial injury" category. The "serious injury" category is:-

"... the lowest category. It covers those cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain"

(at p. 659).

The "substantial injury" category:-

"... extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life"

(at p. 660). The defendant says that the appropriate award should be $650,000 (see the defendant's written closing submissions).

22. Litton VP (as he then was) said in Chan Pui Ki the Lee Ting Lam "categories" are only guidelines and are intended to be flexibly applied. The effect of the injuries to the plaintiff in the present case is not only physical but also mental and psychological. Bearing this in mind and having considered the totality of evidence, in particular the medical and psychological findings, I agree with the defendant's argument and find that the plaintiff's injuries fall within the "substantial injury" category. Other matters which ought to be taken into account include his activities before and after the accident (the plaintiff stayed at home most of the time after the injury and his social life is therefore affected) and the plaintiff's relatively young age (which will mean that the effect of the injuries will have a more profound, as well as a longer, effect on his enjoyment of life). I conclude that the award should be adjusted upwards and $800,000 would be appropriate under this head.

Loss of Pre -Trial Earnings

23. The plaintiff claims $160,220 under this head which is arrived at in the following manner. After the plaintiff left school in 1999, he followed his father to a construction site and worked there on and off for about 15 days at $200 per day. From about July 1999 to about early April 2000, the plaintiff was either working without being paid or remained unemployed. He argues that his income (if he were not injured) would have been $15,520 per month (as a policeman). Instead, he only earned $3,750 per month when he commenced his employment with Mr Chin in early April 2000.

24. As will be explained below, I do not accept that a claim can properly be based on the income of a policeman. Further, the plaintiff worked without pay from about July 1999 to about February 2000 without any attempt to look for normal employment. I agree with the defence argument that the plaintiff has failed to mitigate his loss during this period and therefore should not be entitled to any award.

25. As regards his attempts to find work from about February to April 2000, I find that the failure to find work was due more to his lack of working experience than his injury: see para. 11 to 13 of his supplemental statement.

26. In view of the above, no award will be made under this head.

Loss of Future Earnings

27. To put it simply, it is brought on the basis of the wage difference between the plaintiff's present employment and the income of a policeman. It is argued on his behalf that he had always wanted to join the police force or the fire service: see para. 27, "Substituted Statement of Damages" dated 22 May 2000 and para. 6 of the plaintiff's supplemental statement.

28. The plaintiff completed Form 5 education in 1999. His Hong Kong Certification of Education Examination results were unsatisfactory. He was injured at a relatively young age of 12. He was too young to be a policeman then and, since the time of accident, has not applied for that post. When Senior Inspector Lau of the Police Recruitment Group testified, he said that in 1998, about 1 out of 14 applicants was recruited . In 2000, the ratio was about 1 out of 13 applicants. The "drop-out" rate (the rate of recruits who left before completion of training) of the police training school was about 3 to 5%. With these matters in mind, I consider that it is too uncertain to conclude that the plaintiff would have in fact become a policeman had he not been injured.

29. I enquired with Mr Pirie whether the plaintiff has another basis for this head of claim if I should conclude (which I do) that the plaintiff cannot satisfactorily establish that he would have become a policeman. At one stage Mr Pirie said that there was none. He later suggested that I should adopt the income of a policeman as a median level of income which the plaintiff would have been able to earn if he had not been injured. With respect, irrespective of whether this can properly be done in other cases, I do not think that I am entitled to do so in the circumstances of this case. The plaintiff's brother is now working as a shipping clerk at a monthly salary of $9,000 after he completed Form 5 education: see the testimony of Madam Wong, the plaintiff's mother. Madam Wong also testified that the intelligence and ambition of the plaintiff and his brother are more or less the same. On the other hand, the plaintiff's employer, Mr Chin, testified that the plaintiff should be able to complete his apprenticeship and become a "master" painter. Mr Chin said a "master" painter earns $750 per day (with $30 additional travelling allowance). He said the plaintiff worked about 22 days per month. If the plaintiff becomes a "master" painter, his average monthly income would be about $17,000.

30. Yet another approach would be to base an award on the difference of the plaintiff's income and that of a reasonably competent "master" painter. Mr Pirie submitted that the plaintiff was not given the proper work of a painter and this was caused by the disabilities brought about by his injuries. I do not find that the evidence adduced (especially that adduced by the plaintiff) supports these submissions. The plaintiff's employer, Mr Chin, is a truthful and reliable witness. He has treated the plaintiff reasonably. Further, the gist of Mr Chin's testimony (which I accept) is that the plaintiff should be able to become a "master" painter like his other colleagues. The suggestion that the plaintiff is unaware of danger to himself is rejected (as stated earlier). With these matters in mind, I do not think that an award can properly be made on this basis either.

31. For the above reasons, no award can properly be made under this head on the materials now before me. Having said so, I have borne in mind the global sum approach referred to in the Court of Appeal's judgment of Cheng Sam Pak v. Secretary for Justice [1998] 2 HKC551, 557B-C which will be dealt with in the next heading below.

Loss of Earning Capacity

32. I consider the plaintiff's claim for $100,000 under this head to be reasonable. The defence argues that no award should be made under this head because the plaintiff has not made such a claim. I do not agree and conclude that $100,000 can be awarded on either of the 2 following bases.

33. It is true that this head of claim has been left out in the plaintiff's pleadings (including the various sets of Statement of Damages). However, the facts and matters relevant to a claim for loss of earning capacity have already been adduced on the plaintiff's behalf without objection from the defence. It is therefore unlikely that the defence would suffer any irreparable prejudice if leave is given to the plaintiff to include such a claim.

34. Alternatively, although I have concluded that the evidence adduced by the plaintiff is insufficient to establish a quantifiable sum for his loss of future earnings (see the heading "Loss of Future Earnings" above), I am entitled to adopt the global sum approach in Ho Ping Shui v. Ho Kwai Lin, HCA 1547 of 1985 and Lai Yee Kin v. Top Crown Electroplating Fty. Ltd., HCA 628 of 1986. The Court of Appeal described this approach as "a realistic approach and was in conformity with the practice which is usually now adopted": Cheng Sam Pak, at p. 557B-C.

Items of Expenses

35. The following items are agreed to by the defendant:-

Hospitalization fees
(1)	Prince of Wales Hospital	$1,986
	(29 June 1994 to 10 January 1997 (with breaks in-between)
(2)	Cheshire Home, Shatin	$1,674
(3)	Travelling expenses	$2,500
Treatment
(1)	Physiotherapy, occupational therapy, speech therapy and follow-up	$3,368
(2)	Travelling expenses	$2,080
Consultation fees		$1,950
EEG fees		$1,800
Tonic food		$4,500
Loss of earnings of the plaintiff's father		$24,750

36. I accept the testimony of Madam Wong and Mr Hui, the plaintiff's uncle, that Madam Wong suffered a loss of income when she stopped working as a baby-sitter in order to take care of the plaintiff. The sum suffered is $196,000 (being 49 months' income at $4,000, as claimed by the plaintiff).

Loss of Pension

37. There is no satisfactory evidence to establish this claim and no award will be made.

Investment

38. In his report dated 22 December 1999, Dr Choa considered that the plaintiff to be vulnerable in financial matters because the plaintiff may misinterpret advice or give wrong advice. The plaintiff's mother said that he was capable of dealing with his daily expenditure but she doubts if he would be capable of dealing with large sums of money and investments.

39. Having considered the total amount of the sums awarded and the nature and extent of the plaintiff's injuries, I agree with the defence submissions that the plaintiff and his mother would be able to make good use of these sums. There is no need for an award to cover the fees of investment or fund management advisers.

Interest

40. Interest on the award for pain and suffering and loss of amenities should be at 2% per annum from the date of writ until date of judgment and thereafter at judgment rate until payment.

41. Interest on pre-trial special damages should be at half judgment rate from date of accident to date of judgment and thereafter at judgment rate until payment.

42. The defendant asks for a period of interest to be deducted because of the unjustifiable delay on the plaintiff's part. I do not find that the facts of this case justify such deduction.

Costs

43. There will be a costs order nisi pursuant to RHC Ord. 42 r. 5B(6) that the costs of the assessment be paid by the defendant to be taxed if not agreed. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.