YUEN YEE TAK AND ANOTHER v. HUNG SANG ENGINEERING WORKS LTD. AND ANOTHER

1984 No.8495

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff was a passenger in a private car owned by the 1st Defendant and driven by the 2nd Defendant which was involved in a motor accident on 26th June 1983. The Plaintiff was seriously injured in this accident and was admitted to hospital in a comatose state and remained unconscious until about 16th August 1983.

2. The writ and statement of claim was issued on 17th December 1984 and a Defence filed on behalf of both Defendants on 21st January 1985. Interlocutory judgment was entered by consent against both Defendants on 9th November 1985 with damages to be assessed. The assessment of damages was set down and heard on 27th May 1988.

3. Counsel for the parties at the assessment agreed that the special damages in this action should be allowed at $88,081.00. The general damages relating to pain, suffering and loss of amenities and loss of earning capacity were the only matters at issue on this assessment. Counsel for Plaintiff produced:

(1) A Bundle of Medical Evidence consisting of 6 documents with a total of 18 pages; and

(2) A Bundle of Non-Medical Evidence consisting of 6 documents with a total of 11 pages.

Both Bundles of Documents were produced by consent of Counsel for the Defendants and under Section 47 of the Evidence Ordinance and Order 38 of R.S.C.

4. The first witness called by the plaintiff was Dr. Peter Hin Ting WU, a Neurologist. He gave evidence that he had first seen the Plaintiff when he was still unconscious in St. Paul's Hospital on 26th June 1983 with a severe head injury and other physical injuries. This witness described the Plaintiff's injuries as set out in his first report dated 24th June 1984 being part of Document 5 in the Bundle of Medical Evidence produced. A summary of Plaintiff's injuries are as follows:-

(1) Deeply comatose and not responding to verbal stimuli but responding to painful stimuli.

(2) Multiple abrasions of the head, face, body and lower limbs.

(3) A laceration at the dorsum of the right hallux over the interphalangeal joint with rupture of the extensor tendon and the joint capsule and a compound comminuted fracture of the proximal phalanx.

(4) A large bleeding wound, over the left parietal region of the head.

(5) The left limbs wre paralysed with extensor spasm.

(6) A puncture wound over the anterior triangle of the left neck which was sutured.

(7) An X-ray of the skull revealed a depressed fracture over the left parietal bone.

(a) Right frontal epidural haematoma;

(b) Haemorrhage into right ethmoidal sinus_;

(d) Fracture of left petrous bone with associated haematoma of the left cerebellar hemisphere and cerebral peduncle; and

(e) Marked cerebral oedema with small ventricles.

(9) Contusion of lung; and

(10) Gastrointestinal haemorrhape.

Dr. Wu confirmed in his first report that the Plaintiff was admitted to the intensive care ward where he was treated with drugs and conservative treatment for the compound fracture of his right hallux. On 27th June 1983 Dr. Chien YU operated on the Plaintiff when right frontal and left parietal craniotomies were performed. Details of this operation are set out on page 2 of Dr. Wu's first report. A substantial haematoma was found and removed and the depressed fracture was repaired and bone flaps wired. The Plaintiff remained in intensive care after the surgical operations receiving blood transfusions for marked anaemia and treatment for the infected contusion of the lung. Neurologically the Plaintiff made steady progress and was transferred to Queen Mary Hospital on 20th July 1983.

5. Dr. Wu stated that the Plaintiff had a less than 50% chance of survival from his state of unconsciousness when he was admitted to St. Paul's Hospital. He stated that when the Plaintiff left St. Paul's Hospital on 20th July he was responding to stimuli on both sides of his body and his other physical injuries, such as, his lung contusion and internal bleeding were under control. Although the Plaintiff would open his eyes in response to verbal stimuli his speech was slurred and he was still disorientated as he was then in a semi-conscious state. It was Dr. Wu's evidence that there was every likelihood of permanent neurological impairment from the Plaintiff's serious head injuries.

6. Dr. Wu gave evidence that he later examined the Plaintiff on 15th December 1984 and as a result prepared a second report dated 13th February 1985 being part of Document 5 in the Bundle of Medical Evidence. At this examination some 18 months after the accident the Plaintiff had no memory of the accident. The Plaintiff experienced difficulty in opening his left hand and his left leg was weak and suffered from a loss of co-ordination. He also experienced tremoring of his left limbs. 'The Plaintiff was suffering from poor recent memory. At this examination Dr. Wu found the Plaintiff to be fully alert and well orientated. His speech, smell, hearing and visual field and acuity were all normal. The surgical scars of the right and left craniotomies had healed well. The Plaintiff's left limbs were found to be spastic with weakness and also they were dyspraxic. He walked with a left foot drop. It was Dr. Wu's opinion in his second report that the Plaint was still suffering from the consequences of his serious head injury with left sided spastic hemiparesis with dyspraxia due to the injury to the right parietal lobe and frontal lobe. Dr. Vu found that the Plaintiff was still suffering serious memory defects especially for recent events. It was his conclusion that all these mental and physical deficiencies were likely to be permanent and would handicap the Plaintiff in seeking employment.

7. Dr. Wu examined the Plaintiff on a third occasion and prepared a third report dated 10th August 1986 also part of Document 5 in the Bundle of Medical Evidence. At this examination Dr. Wu found the Plaintiff to be neurologically alert and well orientated with normal speech. All his cranial nerves were in tact. The left upper limb appeared smaller than the right arm and his left limbs suffered from spasticity, dyspraxia and marked incoordination. Although there was no tremor in his out-stretched left hand the fine movements of his left fingers were very poorly executed. The Plaintiff had great difficulty in extending his left fingers from a clenched fist. The left drop foot was still very markedly. noticeable and so was his limping. Tendon reflexes remained hyheractive with the left side brisker than the right side. Dr. Vu at this examination over 3 years after the accident noticed no marked improvement in the Plaintiff's condition since his second examination almost 2 years earlier. In particular, there was no marked improvement in the mental and physical deficits arising from his head injuries. It was Dr. Wu's opinion in this report that with these deficiencies the Plaintiff was suffering from a change in personality and temperament, poor memory especially of recent events, markedly diminished ability in expressing himself, and a spastic left hemiparesis with dyspraxia and incoordination. The Plaintiff was experiencing difficulty in performing simple errands in his duties as an office assistant and was unable to participate in active sports, such as swimming, howling or soccer. It was Dr. Wu's conclusion that the Plaintiff had no chance of recovery from these deficits.

8. Dr. Wu said in evidence that he saw the Plaintiff again on 25th May 1988 and that his condition was much the same as at the third examination on 6th August 1986. Dr. Wu said that the Plaintiff's lack of co-ordination had deteriorated in the meantime. In his opinion any heavy manual labour would be extremely difficult for the Plaintiff. The Plaintiff was experiencing frustration with his disability and would quarrel easily over trivial matters. The physical limitations of left limbs resulted in difficulty in negotiating stairs and sloping ground which was more tiring for him. Dr. Wu's evidence was that the Plaintiff's mental impairment would limit his employment prospects regardless of his physical limitations. "Although Dr. Wu was reluctant to give a percentage of the Plaintiff's total impairment, when pressed he asessed the total impairment at not less than 50% taking into account the Plaintiff's physical and mental disabilities. Dr. Wu considered that the Plaintiff's left side an n left limbs were seriously impaired and that his mental capacity was also permanently impaired.

9. In cross-examination Dr. Wu disagreed with a report of Dr. Chan of the Neurological Unit dated 6th June 1984, in which he had concluded that the Plaintiff only had slight permanent disability to his left side and mild impairment of his higher mental functions. Dr. Wu also disagreed with the conclusion of Dr. F. J. Shroff in his report dated 19th May 1998 where he says that "mentally the Plaintiff appeared to have fully recovered." Dr. Wu admitted that to measure the Plaintiff's mental impairment he would need to be subject to psychological testing rather than to simple arithematical tests.

10. The second witness called was Dr. Fali J. Shroff on behalf of the Defendants. Dr. Shroff, who is also a Neurologist, had examined the Plaintiff on 13th May 1988 and prepared a report dated 19th May last being Document 6 in the Bundle of Medical Evidence produced. In his evidence Dr. Shroff stated that lack of co-ordination was a greater disability than weakened musclepower. It was his opinion that the spasms suffered by the Plaintiff were self-induced rather than spontaneous. In his neurological examination of the Plaintiff he was found to he alert and cc-operative and appeared to be very bright, understood English and answered all Dr. Shroff's questions in a relevant manner. Dr. Shroff found the Plaintiff's gait to be abnormal and inclined to the left side because of left foot drop. There was a minimal left facial weakness and the deep tendon reflexes were increased on the left side. Musclepower in the left upper limb was reduced and muscle tone was increased on the left side. Musclepower in the left lower limb was markedly reduced. An E.C.G. recording was found toe within normal limits. On the C.T. Scan of the brain a small area of low density was noted in the left parietal lobe and small lacunar low density areas in the right basal ganglia. Dr. Shroff stated in his report that the Plaintiff had made an excellent recovery from his head injury which was aided by his youth, being 18 years of age at the date of the accident. Dr. Shroff's conclusion was that mentally the Plaintiff appeared to have recovered fully, although he had conceded that only a detailed psychological test would reveal any impariment of his cognitive abilities. Dr. Shroff assessed the Plaintiff's loss of earning capacity as 8 to 10% on the basis mainly because of the weakness of his left limbs. In cross-examination Dr. Shroff described the Plaintiff's head injuries as being on the borderline between moderately severe and very serious. He conceded that the Plaintiff's memory lapses and changes in his temperament were likely to have resulted from his head injuries. Dr. Shroff admitted that the Plaintiff could not cope with any form of employment involving manual work. Dr. Shroff considered that Dr. Wu's assessment of the Plaintiff's total impairment was very excessive and he had no reason to revise his assessment of 8 to 10% for the Plaintiff's permanent incapacity.

11. The Plaintiff, YUEN Yee Tak, was called to give evidence. The Plaintiff says he lives on the 3rd floor of a housing estate with his parents and other members of the family and uses the staircase as there is no lift in the building. Prior to the accident the Plaintiff said he was at school in Form 5 and had taken the Form V examination which he later learned he had failed. He said it had been his ambition to be a policeman prior to the accident. The Plaintiff said he applied to join the Police Force and had had a physical examination and an interview prior to the accident. However, his application was unsuccessful but he did not know the reason for being refused admission. It had been his intention to retake the Form 5 examination the following year but for the accident. Before the accident the Plaintiff played competitive soccer for a club and went swimming with his friends. He said he was a skilful football player and played in several different positions for his school and club teams. He produced photographs to support this evidence. The Plaintiff said he also took part in ten pin bowling and the martial arts prior to the accident but had been unable to participate in these activities since because of the injuries he had sustained in the accident.

12. The Plaintiff said that he had been working over the last 2½years as an office assistant at the Tang Shiu Kin Hospital where his salary increased from $2,110.00 per month on 11th November 1985 to $2,600.00 p.m. as at the 1st April 1987 as confirmed in a memo from Medical and Health Department dated 28th July 1987 being Document 4 in the Bundle of Non-Medical Evidence. The Plaintiff described the difficulties he has in his employment arising from his memory lapses and lack of co-ordination. He described his change in temperament and how he now often has arguments with other people including his father over trivial matters. The Plaintiff gave evidence as to his difficulties in negotiating slopes and walking downstairs because of this lack of co-ordination and balance. He said he is unable to run at all and walks with a shortened gait on his left leg. He demonstrated to the Court the difficulty he experiences in gripping or releasing his grip with the fingers of his left hand. He gave evidence that filing documents in his work is difficult and less efficient because of the weakness in his left arm and the slow reaction of his left fingers. The Plaintiff says his social life is restricted because of his disability and that he does not have a girl-friend even though he is now 23 years of age.

13. The Plaintiff's mother, KWONG Lai Wah, also gave evidence. She described the change in Plaintiff's temperament since the accident. She says he is now depressed and acts impulsively to quarrel with his father and others over trivial matters. She said that the Plaintiff often experiences nightmares in his sleep since the accident and that on occasions he will forget to take his wallet when he goes to work. This witness said that prior to the accident the Plaintiff had a good memory and did not suffer from memory lapses or act impulsively.

14. Counsel for the Defendants submitted that it had been agreed that this was an appropriate case for a lump sum award to be made for the Plaintiff's loss of earning capacity rather than under the conventional loss of earnings category. Miss Pinto conceded that the Plaintiff's physical disabilities had been agreed upon in the various medical reports and that the only dispute was whether or not he had any permanent mental impairment. Counsel for the Defendants submitted that in the absence of psychological testing to establish learning or cognitive impairment the only outstanding matters related to loss of memory of recent events and a change in temperament. Miss Pinto pointed out that the Plaintiff was able to give his evidence from his memory and to explain the difficulties he experienced in his work without being prompted. It was submitted that the Plaintiff had not exhibited any significant memory impairment and that any change in his temperament would improve as he matured. Counsel for the Defendant argued that the global award for loss of earning capacity should not he unduly speculative in this case. In this regard Miss Pinto referred to 2 Hong Kong, cases with awards under this head of $40,000.00 and $80,000.00 and a recent English decision where an award of £20,000.00 had been reduced to £4,000.00.

15. Counsel for the Plaintiff referred to the substantial body of evidence from Dr. Wu confirming that the Plaintiff was suffering from permanent mental impairment. Mr. Stables submitted that Dr. Wu's evidence in this regard is corroborated by the Plaintiff's evidence as to the difficulties he experienced in performing simple mundane tasks in the course of his employment as an office assistant. Plaintiff's counsel referred to 3 recent cases where awards had been made for loss of earning capacity in the sums of $100,000.00, $80,000.00 and $120,000.00 respectively. Mr. Stables submitted that the Plaintiff had and would suffer loss of prospective earnings in relation to other occupations which receive higher renumeration and that an appropriate award in this case would be $150,000.00.

16. On the question of whether or not the Plaintiff has suffered permanent mental impairment the evidence of Dr. Peter Wu is preferred. After all he saw the Plaintiff soon after the accident and subsequently on at least 4 separate occasions and has produced 3 medical reports relating to those examinations. By contrast Dr. F.J. Shroff examined the Plaintiff once a few days prior to this assessment. Considering the severity of the Plaintiff's head injuries and the brain operations performed shortly after the accident it would have been most surprising; if he did not suffer from some degree of permanent mental impairment. It is unfortunate that the Plaintiff was not subjected to psychological testing to resolve the dispute as both doctors called to give evidence agree that this is the only conclusive way of establishing mental incapacity. However, there has been sufficient evidence adduced to find that the Plaintiff has suffered permanent mental impairment from the serious head injuries he received in this accident.

17. As to the award for loss of earning capacity the usual considerations should be taken into account. In this case the Plaintiff does have employment as an office assistant at a hospital under the Medical and Health Department earning something less than $3,000.00 per month at this stage. However, there are indications that his work performance is less than satisfactory and there is no guarantee he will be permanently employed in the future despite having been confirmed in his present position. The Plaintiff at 23 years of age has a long working life ahead of him and because of this permanent disability various more lucrative occupations including manual work are no longer available to him. In all these circumstances the appropriate award for loss of earning capacity would be $140,000.00 in this case.

18. Turning to the award for pain, suffering and loss of amenities Counsel for the Defendants referred to 4 cases with awards under this head ranging from $90,000.00 to $110,000.00 and submitted that Plaintiff's injuries merited an award between $100,000.00 and $110,000.00. It was Miss Pinto's submission that the Plaintiff's injuries came within the lower end of the serious injury category and that allowing, $60,000.00 for inflation since LEE Ting Lam was decided the proper award was $108,000.00.

19. Counsel for the Plaintiff produced a bundle of 7 authorities under this head and referred to 4 cases with similar injuries where awards ranged from $95,000.00 to $130,000.00. Mr. Stables submitted that the Plaintiff's injuries in this case came within the substantial injury category and that an appropriate award would he $200,000.00.

20. Taking account of the serious head injuries and the other serious physical injuries sustained by the Plaintiff in this accident he should come within the substantial injury category. The Plaintiff was unconscious for more than a month after the accident from his serious head injuries and underwent a brain operation to remove a blood clot and to relieve a depressed fracture of his skull. He remained in intensive care for some weeks and was only discharged from hospital after 6 months. On the issue of loss of amenities the Plaintiff, as a young man, was involved in active sports prior to the accident and may have been able to have pursued a career as a competitive soccer player like some of his team-mates but for this accident. As a result of his injuries he has difficulty in walking and in flexing his left fingers because of the weakness and lack of co-ordination in his left limbs. On the evidence adduced at this examination and for the particular reasons set out above the Plaintiff's award for pain, suffering and loss of amenities will be allowed at $175,000.00.

21. A summary of the awards allowed at this assessment are as follows:-

22. Interest on the general damages for pain, suffering and loss of amenities at 2% per annum from the date the writ was issued to the date of this assessment. There will be no interest on the award for loss of earning capacity. Interest on the agreed special damages at 3 1/16% per annum from the date of the accident. Defendant ordered to pay the Plaintiff's costs on this assessment to be taxed if not agreed. The Plaintiff's own costs to be taxed under Legal Aid Regulations.