LIU SUET UN AN INFANT BY HER NEXT FRIEND LIU PUI CHEUNG v. YU MAN FAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. On the 1st December 1983, the plaintiff, aged 6 years, was lawfully crossing a public road along a zebra crossing when she was struck and knocked down by a motor cycle ridden by the 1st Defendant and owned by the 2nd Defendant.

2. The writ was issued on the 17the July 1985 and in default of defence, judgment was obtained against the 1st and 2nd Defendants on the 25th and 22nd November 1985 respectively.

3. The following documents were admitted by the Court in the terms of a hearsay notice, namely:

4. The plaintiff was admitted to the United Christian Hospital immediately after she was injured and transferred later that day to the Neurosurgical Unit of the Kwong Wah Hospital.

5. Upon admission to hospital the plaintiff was suffering, inter alia, from post-traumatic amnesia from which,according to her father, she did not fully recover for a period of 3 days.

6. X-ray examination revealed compound depressed fractures of the skull bone and also a fracture of the shaft of the humerus.

7. The fractured humerus was simply treated by placing the same in a plaster cast and it is clear from the medical reports that she will make a complete recovery from this injury.

8. Unfortunately, the injuries to the left side of the plaintiff's skull were far more serious. They necessitated immediate surgery. Dr. Thein's report of the 6th January 1984 summaries the injuries and treatment. In essence, what it says is that surgery revealed multiple fractures of the skull bones which were depressed. The fractured segments of bone were elevated and the surface of the left temporal lobe of the brain was found to be lacerated. In addition, the whole of this lobe was contused and about 8 to 10 c.c. of blood was removed from inside the temporal lobe.

9. Dr. Shroff in his report dated 9th February 1985 concluded and I quote "it is evident that there has been appreciable brain damage involving in particular the left temporal lobe of the brain".

10. As to the severity of the head injury sustained, Dr. Shroff adopted Professor Jannett's classification system and, based upon the plaintiff having been unconscious for 3 days, placed her head injury in the category of severe.

11. Dr. Shroff with his customary thoroughness conducted a series of specialised investigations. They are set out in full in the said report, but I can conveniently summarize his findings as follows:-

            (1)    An area of skull bone measuring 6 cm x 5 cm was removed from the anterior part of the left parietal bone during surgery leaving the underlying brain unprotected.

            (2)    An electroencephelogram revealed epileptogenic discharges when the plaintiff hyperventilated.

            (3)    In the area of the craniotomy there is contusion of the brain.

            (4)    Although the plaintiff initially showed signs of speech disturbance, her speech is now almost normal.

            (5)    The plaintiff has become aggressive, bad tempered and unto-operative. She is nervous in public and becomes frustrated over small matters, although I have to say that in this finding, Dr. Shroff seems to have relied largely on what he was told by the plaintiff's father. "However, in the event, this is of no great consequence for the plaintiff's father gave direct evidence of the change in the plaintiff's personality along very much the same lines and his evidence was not challenged.

12. So far as his prognosis is concerned, Dr. Shroff found that the head injury has resulted in appreciable cognitive impairment, further surgery is required to insert an acrylic graft to protect the brain where the skull bone has been removed and that she has a 31% chance of developing late post-traumatic epilepsy.

13. On the 11th December 1985, the plaintiff underwent an exhaustive psychological assessment by Ms. Janie O.C. Lee and her findings are contained in her report dated the 18th December 1985. Again, for the purposes of this assessment, I will summarize her findings, which are as follows:-

            (I)      Intellectual functioning

14. On The Hongkong Wechsler Intelligence Scale for children, the plaintiff's results show that she has an I.Q. of  93, which puts her on the lower side of the average range of intellectual ability. However, her performance on the Weigh-goldstein Colour Form Sorting Test was less satisfactory. Here she showed the characteristic difficulty of brain damaged patients. She was rigid, inflexible and muddled in conceptual thinking. Ms. Lee considered that this deficit in intellectual ability will increasingly and adversely, affect her school performance as she progress to higher classes and has to embrace more esoteric concepts.

            (II)     Memory functioning

15. Whilst this has improved of late her current performance is only weak to adequate and she has much ground to make up.

            (III)      Symbolic functioning

16. This would not appear to present any serious difficulty at present.

17. Ms. Lee, also went on to deal with the plaintiff's current emotional state, but as with Dr. Shroff her report was based on what the plaintiff's father said and accordingly I shall rely on the father's direct evidence on this point.

18. The above is a brief summary of the medical evidence adduced before me. If I take this, together with the evidence of her father, who was clearly a loving father and an honest man, a fairly clear picture of the plaintiff emerges.

19. Before the accident she was an average little girl in every respect. She enjoyed normal relationships with her peers, performed adequately at school and caused no particular problems at home.

20. This contrasts quite significantly with her post-accident behaviour. Now she finds it difficult if not impossible, to form relationships with her peers or' indeed anyone other than members of her immediate family and even with them, she has become temperamental, irritable and easily frustrated. Her school work has suffered and as she grows older, despite the fact that her I.Q. is only just on the lower side of average, the deficit in abstract conceptual thinking will increasingly and adversely affect her performance.

21. Furthermore, as Dr. Shroff indicated she has a 31% chance of developing late post-traumatic epilepsy and she will have to undergo further surgery to her head to insert an acrylic plate to protect her brain.

22. In the light of the above findings and assessment of the plaintiff I turn to assess the heads of damage as claimed and particularised in the Statement of Claim.

A.    Pain suffering and loss of amenities

23. Miss Yuen submitted that the plaintiff's injury placed her within the serious category as described, by Cons, J.A., as he then was, in Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657, as being an injury which is:

"a disability which mars general activities and enjoyment of life."

24. I agree with her and I further accept her submission that the nature of the plaintiff's injury is such   that it must be assessed as being towards the lower end of the 'serious category'.

25. The general range of awards, under this head, in the 'serious category', in 1980, was $60,000.00 - $80,000.00. In mid-1985 Master O'Donnell in the unreported case of Tang Siu-kit v. Lam Po and Another HCA No. 10812 of 1983 considered that the level of awards, following Lee Ting-lam, should be increased by 50%. Since 1985 there has been further inflation and a fall in the value of the Hong Kong dollar, hence, in my judgment the time has come for a further upward revision of the level of awards. I consider that conservatively this should be in the order of 10%.

26. Hence, in assessing damages under this head I have taken $60,000.00 as a starting point and increased it by 60%.

27. Accordingly, under this head I award the sum of $96,000.00.

B.    Loss of future earnings

28. At the time of the accident the plaintiff was 6 years of age. She was, as I have indicated earlier, a very average little girl. Accordingly, in my judgment it is necessary not only to look at the child herself, but also her family and background in order to take this head out of the realm of pure speculation into the area of reasonable assessment. In so doing I acknowledge at the outset that It is quite impossible to entirely remove the speculative element.

29. Miss Yuen urged me to follow the principles in Lam Mei-lan v. Leung Yuk [1979] HKLR 600. She submitted that facts of the present action were similar to those in that case and noted that it had been followed in Tang Siu-kit.

30. It would be convenient if I could do so, but in my judgment I must distinguish the facts of the present action.

31. My reasons for distinguishing the present action from the above authorities are as follows, namely:-

32. The plaintiff's father quite naturally hoped that the plaintiff would achieve some modest success in life, by becoming say a secretary, but in my judgment it remains just that, a 'hope', for when one views the plaintiff, and her background, objectively one is unescapably driven to the conclusion that if she had not been injured in the accident, she would have been very unlikely to rise much above her present station in life, if at all.

33. Hence, quite apart from the complete dearth of evidence on the difference between the respective incomes of, say, secretaries and factory workers, it is simply not possible, as Mr. Commissioner Lee did in Lee Ting-lam, to arrive at a multiplicand representing the difference between what she may have earned but for the accident and what she was likely to earn post-accident. Once that falls away Lee Ting-lam cannot be followed.

34. The problem here is very different. It is not so much a question of what kind of employment the plaintiff is likely to obtain, but whether she will be able to find employment at all. Physically, and academically with her I.Q. of 93, she should certainly be able to find employment in a factory or the like, but, as Miss Yuen rightly pointed out the matter does not end there, for now the plaintiff suffers from personality defects, more particularly enumerated above, and there is a 31% chance of her developing post traumatic epilepsy.

35. Hence, whilst the injuries suffered by the plaintiff may not have much effect on the level of earnings which the plaintiff will achieve whilst in employment, there is a strong probability that she will have difficulty in either obtaining or retaining, employment. In short, I am sure, and I use that word advisedly, that the plaintiff will have to endure periods of unemployment throughout her working life. What I cannot say though, with any degree of certainty, is what those periods are likely to be, but I do not consider that they are likely to amount to less than 25% of her working life.

36. In all the above circumstances, there is simply no satisfactory mathematical formula for assessing damages under this head. Thus, since I am satisfied that the plaintiff will suffer loss I can see no option but to award a global sum as compensation.

37. I assess compensation under this head at $150,000.00.

C.    Special Damages

(a)    Travelling expenses of the plaintiff and her father

38. On the evidence of the plaintiff's father I am satisfied that either he, or both of them, made some 38 visits to the Kwong Wah Hospital. I am also satisfied that it was reasonable for the majority of such journeys to be undertaken by taxi. The average taxi fare I find to be $60.00 return as against a bus fare of a little over $4.00.

39. Not unnaturally the plaintiff's father did not keep an exact log of the number of such taxi rides, but on his evidence I accept Miss Yuen's submission that it would be reasonable to estimate them at 25. Accordingly I award $1,552.00 under this sub-head.

(b)    Loss of earnings of plaintiff's father

40. As the plaintiff's mother was incapable of taking her to hospital it was eminently reasonable for the plaintiff's father to do so. Of necessity, as he was a daily paid worker, he suffered loss. However, from his wages records he did not suffer such loss on each occasion he took her to hospital. I find that he lost only 13 days pay, and not 38 as claimed, and accordingly as he earned $80.00 per day the award under this sub-head amounts to $1,040.00.

(c)    Tonic food

41. The claim for $32,400.00 was clearly excessive. In all the plaintiffs father spent some $8,192.00 in respect of which he was able to produce receipts. This averages out at about $13.00 per day over the period of treatment. Given the nature of the plaintiffs injuries I have grave reservations as to whether any medicine, as against surgery, be it Western or Chinese, would have made any difference, but the plaintiff's father, a fairly simple man, clearly believed that it did and following Yu Ki v. Chin Kit-lam & Another [1981] HKLR 419, I award the sum of $8,192.00 under this sub-head.

(d) Loss of clothing

42. I accept that the plaintiffs clothing was damaged beyond repair and so was her watch. Her father gave evidence that the watch cost $140.00.  His estimate as to the cost of her clothes at $150.00 was reasonable. I award $290.00 under this sub-head.

(e) Future medical treatment

43. Dr. Shroff recommended that further surgery in the form of an acrylic graft be carried out. As a significant area of the plaintiff's brain is unprotected at present, clearly this is a sensible suggestion and in my judgment, the surgery should be carried out as soon as possible. It could be carried out in a Government hospital, but, for the reasons stated in his report, I accept that it should be carried out privately by an experienced neurosurgeon notwithstanding the fact that the cost will be $16,000.00. However, as the surgery has yet to be carried out I can only make a provisional award in principle in the sum of $16,000.00, the final award under this head is to be determined upon submission of Dr. Shroff's Account. In order to minimise expense I order that there be an immediate payment out under this head provided that the final account does not exceed $16,000.00.

Interest

44. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to the date of this assessment. The special damages, with the exception of the award for future medical expenses, and loss of future earning capacity which will attract no interest, will attract interest at the rate of 3.5% per annum from the date of the accident to the date hereof.

45. The whole of the amount awarded, including interest, shall be paid into Court within 28 days hereof and shall be invested by the Registrar, Supreme Court, at his discretion, on behalf of the plaintiff subject to:-

46. The defendants shall pay the plaintiff's costs which shall be taxed if not agreed and the plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations.

47. There will be a Certificate for Counsel.