LAU KA PO (a minor) v. MAN CHEUK MING and Another

1996, No.PI584

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES LIST

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J U D G M E N T

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1. This is the third case that I have handled in the past 18 months of a young child injured in a road accident. The first two were Lee Hon Cheung v. Chan Tang Kui Lan and Another (H.C. Action No.A4522 of 1991) and Chan Pui Ki v. Leung On and KMB (H.C. Action No.A2006 of 1992, Civil Appeal No.263 of 1995). The common theme of these cases is that the children all suffered head injuries and the cases took an extremely long time to come up for trial.

The Plaintiff's Evidence

2. In the afternoon of 6th September 1988, the Plaintiff who was then an 11 years old student, was crossing a zebra-crossing in Fung Shue Wo Road in order to get a free drink from a store on the other side of the road. The zebra-crossing was controlled by traffic light. The pedestrian traffic light was green in his favour when he crossed the road. He could not recall what happened next. He found himself in hospital and was told by his mother that he was hit by a goods vehicle.

3. On 19th September 1988, he gave a statement to the police. He was, however, no longer unable to recall the contents of the statement. In that statement he said he saw the pedestrian signal was green, he walked towards the opposite direction at a normal pace without observing the traffic condition on both sides and without stopping at the pavement. He did not press the switch for the pedestrian signal when he reached the pavement.

4. On 20th January 1989, Roger Houghton Ltd., Loss Adjusters, took a statement from the Plaintiff. Again, the Plaintiff said that he could no longer remember the contents of the statement. In that statement it was stated that :

"I was standing and waiting on the edge of the pavement at that time, because the red man was lit at that time. I then waited for a moment. I then saw that the traffic light on the central dividing line turned to green man. I then stepped onto the road. I was the only person crossing the road at that time, (and) nobody else."

In that statement, he also mentioned that he did not press the pedestrian control light next to the traffic light before he crossed the road.

5. The road had been changed completely since the accident. The Plaintiff agreed that there were barriers on the side of the road where shrubs were planted. He agreed that his views to his right would be interrupted by the shrubs and plants but he said that it was his practice to stick his head out to see if there were vehicle coming from the side of the road before he stepped onto the road. He, however, was unable to recall on the day of the accident whether he had actually stuck his head out. He could not recall if he had checked the traffic. He maintained that the traffic light was green when he crossed the road.

The Defendant's evidence

6. The 1st Defendant was the driver and was convicted of the offence of careless driving in respect of the accident. The 2nd Defendant was the owner of the car. According to the summary of evidence of the criminal prosecution, the 1st Defendant drove straight across the pedestrian crossing against a red light. According to the record of proceedings in the magistrate court the 1st Defendant agreed with the facts. The record also revealed that he had had two similar convictions : one in 1986 and one in 1987.

7. When the 1st Defendant gave evidence in these proceedings, he denied that the traffic light was red. He said that on that day he was travelling at about 50 kph which was the speed limit at that stretch of road. The traffic light was green in his favour. As he was approaching the traffic light, a boy suddenly dashed out from the left pavement. The distance between the boy and his car was 1-1½ vehicle length. When he saw the boy dashed out, he applied the brake. He was unable to avoid the collision. After he hit the boy he attempted to swerve the car. He was unable to see the boy before he dashed out. He said on the side of the road there were shrubs and plants, the height of which were about 4'10".

8. He said that he was not legally represented at the criminal trial. The reason he pleaded guilty was because a police officer, who was also a witness, informed him that they had a witness who saw him driving carelessly. The police said that he was not charged with crossing a red light but careless driving; it was a minor matter; he would be fined and points would be deducted but his licence would not be suspended.

Careless driving conviction

9. The effect of a conviction of careless driving shifts the burden of proof to the 1st Defendant to show that he was not negligent. It appears that this point has been ignored in many of the road traffic cases where despite the criminal conviction of the driver, the issue of liability was contested right up to the moment of trial. Much time and legal costs could be saved if the handling lawyers could face the real issue, agree on liability at the early stage of the proceedings and concentrate their efforts on quantum. I will repeat what Lord Denning said in Stupple v. Royal Insurance Co. Ltd. [1971] 1 QB 50, on s.11 of the Civil Evidence Act (the equivalent of s.62 of the Evidence Ordinance) :

"The Act does not merely shift the evidential burden, as it is called. It shifts the legal burden of proof. ..... Take a running-down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent: ..... But he must show it nevertheless. Otherwise he loses by the very force of the conviction.

.....

In any case, what weight is to be given to the criminal conviction? This must depend on the circumstances. Take a plea of guilty. Sometimes a defendant pleads guilty in error: or in a minor offence he may plead guilty to save time and expense, or to avoid some embarrassing fact coming out. Afterwards, in the civil action, he can, I think, explain how he came to plead guilty.

.....

In my opinion, therefore, the weight to be given to a previous conviction is essentially for the judge at the civil trial. Just as he has to evaluate the oral evidence of a witness, so he should evaluate the probative force of a conviction.

If the defendant should succeed in throwing doubt on the conviction, the plaintiff can rely, in answer, on the conviction itself; and he can supplement it, if he thinks it desirable, by producing (under the hearsay sections) the evidence given by the prosecution witnesses in the criminal trial, or, if he wishes, he can call them again. At the end of the civil case, the judge must ask himself whether the defendant has succeeded in overthrowing the conviction. If not, the conviction stands and proves the case."

10. In the present case, I find that the 1st Defendant had not succeeded in overthrowing the conviction. The evidence established that he was negligent in the collision. I do not find the 1st Defendant to be a credible witness. He was aware that the allegation against him was that he had crossed a red light and yet he still admitted the criminal offence and the facts in support of that offence. I do not find his explanation for pleading guilty to the offence to be credible. In his witness statement, he offered an explanation why he pleaded guilty. He said that :

"The police officer however said that if I pleaded not guilty it would be very troublesome but if I admitted the charge since it was only a minor offence I was required to only pay a small fine and deduct five points. He went on to say that if I pleaded not guilty to the charge I also had to pay the court fees if I lose the case and the (sic) he stressed that I would lose the case in any event sine (sic) the victim was only a small boy."

There was no indication in the statement that the police told him that they had a witness who could confirm that the traffic light was red against him at that time.

11. I find the Plaintiff to be a truthful witness. The accident had happened many years ago and I would not expect him to remember the details. However, one thing that has been consistent is that he maintained that the traffic light was green in his favour when he was crossing the road. This is shown in the police statement made shortly after the accident and also in the statement taken by the Loss Adjusters. In the statements the Plaintiff said that he did not press the button for the pedestrian signal. According to a memo by the Commissioner for Transport, under normal circumstances the traffic light would illuminate green for pedestrians only when someone pressed the button. The Plaintiff stated that he was the only person crossing the road at that time, however, the possibility that someone had pressed the button or some pedestrian on the other side of the road had done so could not be ruled out. He was not sure if there was pedestrian on the opposite side.

12. It is clear that the 1st Defendant had not kept a look out of the traffic conditions. He was aware that there was a traffic light controlling the crossing and there was a junction in which traffic from the other direction would come into his path. If, according to him, there were shrubs on the left hand side of the road, he ought to pay particular attention when he was approaching the crossing. As Roberts C.J. in Au Cheung v. Choi Lai-fan [1979] HKLR 543 stated that :

"In my opinion, the significance of the presence of a studded area is that it amounts to an invitation to pedestrians to cross there, with due regard to the dangers of motor traffic. It is also a warning to motorist that pedestrians are more likely to be found in that area than they would on unmark parts of the road, so that a higher degree of care is required from them when approaching such areas ....."

13. Furthermore, according to the 1st Defendant, the road was curving towards the traffic light. In such circumstances, he should pay particular attention to the traffic conditions at the traffic lights. In any event, I do not find the 1st Defendant's suggestion that his view was blocked by the shrubs and plants to be convincing. He was driving a light goods vehicle, the seats of which were higher than the private car, and he accepted that the view is a bit clearer than that of a private car.

14. According to his witness statement, the Defendant stated that :

"Suddenly, I saw a figure (the Plaintiff) dashing out to the carriageway from the pavement on the left side. The Plaintiff started to dash out from the pavement when he was at a distance of 2 to 3 feet away from my vehicle front and while my vehicle was passing through the pedestrian crossing. At that juncture, about half of my vehicle DF225 had already entered the pedestrian crossing and the Plaintiff suddenly dashed out form the left. I therefore immediately steered to the right and applied the brake the vehicle was unable to halt in time and the nearside front hit the Plaintiff who had dashed out. The Plaintiff was thrown away and landed on the carriageway near the left side."

It would appear from the statement that the distance between the 1st Defendant and the Plaintiff when he first saw the Plaintiff was extremely short. Mr Pirie argued that according to the sketch plan, the brake marks of the vehicle were shown to commence from the middle of the pedestrian crossing. According to the highway code, a vehicle travelling 60 kph would need a stopping distance of 35 m, this includes 15 m as thinking distance and 20 m as braking distance. It is a commonly accepted fact and one agreed by the 1st Defendant that brake marks occurred because the wheels of the vehicle were locked when the brakes were applied. If the brake marks occurred in the middle of the pedestrian crossing, this means that the 1st Defendant must have seen the Plaintiff at some distance away and yet he failed to avoid the collision. There is much force in the argument, but in my view it is not necessary for me to make any finding on this point or decide the case on this point. I find on the evidence before me, the Defendant was crossing a green light. The only reasonable inference from the evidence is that he was travelling at a speed which was excessive in the circumstances. He failed to keep a proper look out of the presence of the Plaintiff and he was unable to brake in time to avoid the collision with the Plaintiff. I find the 1st Defendant was negligent.

Contributory negligence

15. Mr Wong submitted that the Plaintiff was contributory negligent and should be 20% to blame. He referred to the Plaintiff's evidence in which he said that he proceeded to cross the road without waiting and did not check the traffic before setting foot onto the road. He submitted that if the Plaintiff had waited he should have been able to see the vehicle coming and the accident could have avoided. He also referred to the Road User's Code at pp.16 and 17 in which it was stated that :

"... When the steady 'Green man' light shows you may cross with care"

"A 'Green man' light means that you may cross the road if it is safe to do so."

When you arrive

Steps 2 to 6

"Look out for traffic that may not stop even though the driver has a red light."

If waiting to cross

"Watch the traffic as well as the lights. Wait until all the traffic has stopped."

If crossing

"Look out for traffic that may not stop even though the driver has a red light."

16. One must bear in mind that the burden of establishing contributory negligence is on the Defendants. Although the sketch plan showed that the road in question was a straight road, the 1st Defendant said that there was a curve leading up to the traffic light. No evidence was given on the angle of the curve. It is for the Defendants to establish that if the Plaintiff had waited at the pavement and looked to his right he could see the on-coming car notwithstanding the curve. The Plaintiff agreed that he had to stick his head out to see the coming traffic but how far down the road could he see the 1st Defendant's car? This had not been explored in the evidence. I just could not surmise that had the Plaintiff turned to his right before he crossed he could see the 1st Defendant's car. In Tremayne v. Hill [1987] RTR 131, the plaintiff, a pedestrian, was crossing at night diagonally over two roads where they converged at a busy junction that was governed by traffic lights. In so doing he did not make use of a light-controlled pedestrian crossing nearby. Just before the plaintiff had completed the crossing he was struck and injured by a car driven by the defendant that had crossed at not a fast speed into the junction against a red traffic light. The plaintiff knew the junction well and was aware that when he made the crossing the traffic from the direction in which the defendant's car had been travelling was prevented by a red traffic light from entering the junction. At the trial of the plaintiff's claim for damages for injury caused by the defendant's negligence, the defence case was that the collision was caused or contributed to by the plaintiff's negligence in that he had (i) failed to keep a proper look out, (ii) failed to see the defendant's approaching motor car, (iii) failed to take sufficient care of his own safety when crossing the road, and (iv) failed to use the light-controlled pedestrian crossing. The judge, having found as a fact that the traffic lights at the relevant time were red against the defendant as his car crossed the stop line, concluded that the accident had been caused wholly by the negligence of the defendant and he gave judgment on that basis. The Court of Appeal dismissed the appeal by the defendant. Sir Roger Ormrod stated that :

"I do not think that the plaintiff owed any specific duty of care which he broke in the circumstances of this case. It was said that he could have looked to his left all the time, as he said he did. But then he said he looked only up Grosvenor Street and did not look up Church Street, the reason being that he assumed that any traffic, if there was any, in Church Street would stop at the red light. It is said that he should have looked up Church Street all the time he was crossing. I find that a remarkable proposition. If in fact, as the judge found, he was right that the traffic in Church Street coming towards him was controlled by the red light, I find it very difficult to see how any failure on his part to look could have contributed to this accident. He had no possible reason to suppose that the car travelling along Church Street in the direction of the traffic lights was going to ignore them.

I find the suggestion that the plaintiff was in any way contributorily negligent a very difficult one to support."

Likewise, it is difficult to see how any failure on the part of the Plaintiff to look could have contributed to this accident. He had no possible reason to suppose that the 1st Defendant's car travelling in the direction of the traffic light was going to ignore the red light.

17. Mr Wong also referred to Clifford v. Drymond [1976] RTR 134 in which the Court of Appeal found that a pedestrian was 20% contributory negligent when he was crossing a zebra-crossing. In that case the zebra-crossing was not controlled by traffic lights and where the pedestrian had no priority at the zebra-crossing.

Medical conditions

18. The Plaintiff was admitted to the Princess Margaret Hospital on 6th September 1988. The hospital record stated that :

" on admission, he was conscious and alert.

Examination found :

(1) Multiple abrasion over face

(2) 4 cm laceration over chin

(3) Bruises over right leg

He was put on neuro-observation. Two days later, C.T. scan brain was performed because of change in conscious level which revealed mild brain edema.

Orthopaedic Unit was consulted for his right leg injury and X-ray showed undisplaced fracture of right fibula and it was treated conservatively.

His condition remained stable and was discharged on 16th September 1988. He was then followed up in the out-patient clinic."

Dr Alvin Yeung

19. The Plaintiff was examined by Dr Alvin Yeung in November 1989. His report stated the Plaintiff complained of pain in the right leg before he slept, poor memory after the accident and poor performance in school after the accident. Examination revealed that the fracture had heeled very well and presented only a mild ache in the right leg. There was no other functional disability.

Dr Shroff

20. When the Plaintiff was examined by Dr Shroff in July 1991, he informed Dr Shroff that he suffered the following symptoms :

"(i) Occasional occipital headaches occuring on an average once every two weeks of after a bad night. The headaches may last for as long as 3 or 4 hours.

(ii) Very poor memory. Misplaces objects. Has difficulty in recalling instructions.

(iii) Poor academic performance in school. According to teachers has difficulty in concentration.

(iv) Personality change: has become dull and easily irritable. Drops off to sleep easily.

(v) Has no sense of directions. May lose his way when going to school."

The injury to the leg was minor and it had recovered well. The major injury in this case is one of brain damage. The treatment sheets of Princess Margaret Hospital were produced and the records pointed towards head injury sustained by the Plaintiff. On 6th September 1988, i.e. the date of admission, he was found to be conscious. The Glasgow Coma Scale which was used to assess the extent of head injury was recorded at 14. The scale divided brain injury into categories of severe, moderate and mild. The scale ranges from 3 to 15. 3 is severe injury, 15 is mild injury. At the time of admission the injury appeared to be mild. However, two days later on 8th September, urgent CT scan was required for the Plaintiff because of fluctuation in the conscious level. The record described the Plaintiff as conscious but agitated. Left hemiparesis was assessed at 4/5. (Grade 5 is normal, Grade 4 shows weakness, 0 is complete paralysis). The left hemiparesis suggested the right side of the brain was affected. Although the result of CT scan did not show intracranial haemorrhage, the possibility of cerebral oedema (i.e. swelling of the brain by fluid) was recorded.

21. Medication by manitol was then administered to reduce the swelling. Thereafter on 9th September, there was improvement in the conscious and there was better movement on the left side. On 11th September, the drip was removed. On 12th September, there was no more hemiparesis.

22. Dr Shroff was of the view that the improvement after the use of manitol confirmed there was indeed cerebral oedema. He said that the most important point to be gathered from the treatment notes is that there was deterioration in the conscious level of the Plaintiff and that he also developed weakness of his left upper and lower limbs. Obviously this suggests that some damage had occurred to the brain. Further evidence is seen from the hospital case notes which showed that he remained drowsy for 4 days. This suggests that the duration of post-traumatic amnesia ("PTA") must have been of at least 5 days. This is because the end-point of PTA is taken when full and continuous awareness of the environment has been regained. According to the criteria as laid down by Professor Jennett of the Department of Neurosurgery at the University of Glasgow, where the duration of PTA is from 1 to 7 days, the head injury sustained by the Plaintiff would fall under the category of severe injury.

Epilepsy

23. The Plaintiff suffered a grand mal epileptic seizure in March 1996 while he was in a dental clinic. The diagnosis by the Princess Margaret Hospital was one of post-traumatic epilepsy ("PTE"). Electroencephalography ("EEG") revealed abnormal slow wave was present at the right posterior region.

24. Prior to this seizure, in fact the Plaintiff had suffered similar seizures before. Once when he was in Form 2. He said he did not pass out but he could not breathe, he could hear people called him but he could not respond. The seizure had also happened while he was at work. He had told his parents about these events but they did not realise the seriousness of the seizures.

25. Dr Shroff had no doubt the epilepsy was connected to the accident, given the history of the head injury, the deterioration in the conscious level and the weakness in the left limb while he was in hospital and the deterioration on the EEG. He assessed the Plaintiff to have a brain injury in the moderately severe level. He assessed the loss of earning capacity of the Plaintiff to be 50%.

AMA Guides

26. In The Guides to the Evaluation of Permanent Impairment, 4th Edition of the American Medical Association ("AMA Guides"), the percentage impairment of the whole person related to epilepsy, seizures and convulsive disorder is shown in Table 5 at page 4/143 is as follows :

"Table 5

Impairment description	% Impairment of the whole person
Paroxysmal disorder with predictable characteristics and unpredictable occurrence that does not limit usual activities but is a risk to the patient or limits performance of daily activities	0 - 14
Paroxysmal disorder that interferes with some activities of daily living	15 - 29
Severe paroxysmal disorder of such frequency that it limits activities to those that are supervised, protected, or restricted	30 - 49
Uncontrolled paroxysmal disorder of such severity and constancy that it totally limits the individual's daily activities	50 - 70"

Dr Shroff assessed the Plaintiff falls within the 15 - 29% range.

Psychiatric/Psychological problem

Dr C.K. Wong

27. Dr C.K. Wong was the former Chairman of the Child Psychiatric Department of the Chinese University of Hong Kong. Recently he gave up full time teaching in order to pursue his writing on children problems and developing a children educational centre. He continued to be a teaching professor in the university. He made the following finding on the Plaintiff : "As a result of the accident, the Plaintiff sustained severe head injury which produced the following psychiatric sequelae: (i) Amnestic Syndrome; (ii) intellectual deterioration to the bottom of low average intelligence; (iii) personality change including catastrophic emotional response and poor impulse control; and (iv) epilepsy. The first three sequelae are beyond doubt the direct consequences of the accident which caused the head injury. The causes of the epilepsy can possibly be spontaneous, i.e. unrelated to the head injury. However, ..... the balance of probability is that the epilepsy is probably caused by the head injury. This is because any head injury which produces sequelae (i) to (iii) is a serious head injury, and in the presence of such clinical evidence the clinical conclusion on the causal relationship between the two, i.e. head injury on the one hand and epilepsy on the other, has to be that the head injury caused the epilepsy, unless other reasons can be found and substantiated. Sequelae (i) to (iii) have become static; further improvement or deterioration is improbable."

Personality change

28. In respect of the Plaintiff's personality change, the following information was provided to Dr Wong by the Plaintiff and his father : "All these years since the accident, his emotion has become very labile. Even upon the most trivial frustration, such as when he wants to go somewhere and yet his wish is blocked, or when at the dining table, he finds the food not to his taste, he will easily burst into very severe temper tantrums. On one occasion, while he was watching TV by himself, he became agitated for no apparent reasons to his parents. He picked up an object and threw at the TV set and broke the TV screen. He also readily hits his sister, particularly in the first two or three years after the accident. Over the last two or three years he has become more settled. However, during his temper spells he still frequently pinches and scratches his own hands, often to the extent of bleeding. He also reacts with very childish joyous reactions when he feels happy. For example, when he is granted the toy he wants, he laughs like a small child. Often he literally has to use his own fingers to squeeze his lips in order to stop himself from laughing." The Plaintiff's mother confirmed the emotional problems of the Plaintiff.

29. Dr Wong said that catastrophic emotional response means exaggerated emotional response. He was of the view that for the rest of the Plaintiff's life the following will characterise the kind of work he can do :

"(i) The work must not require intense concentration;

(ii) The work must not require high speed of response;

(iii) The work must not depend on good memory particularly in processing, retaining and recalling on-going information;

(iv) The work must not be complicated or depend on high intelligence;

(v) The work must not demand complicated interaction with people (his catastrophic emotional response and poor impulse control will not allow him to cope with complicated inter-personal interactions); and,

(vi) The work must not involve machinery or height because of his epilepsy."

In other words, the Plaintiff is left with jobs that involve simple repetitive manual task that do not depend on memory functions or problem solving skills.

Cognitive Impairment

30. Dr Wong also carried out an examination on memory function of the Plaintiff who was asked to repeat a five item address : Mr Cheng, Yau Ma Tei, Shanghai Street, No.526, 14th Floor. He got two out of five items correct on the first try and in the second try he got four out of five items correct and on the third occasion, after struggling for some 15 seconds, he could recall the address correctly. Five minutes later, when he was asked to repeat the address he could recall only three out of the five items correctly. One hour later, he could only recall two out of the five items correctly. He has no impairment in long term memory function.

Mental health assessment

31. In the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition published by the American Psychiatric Association, there is a global assessment of functioning scale. This scale is to assess the effect of mental health illness on the psychological, social and occupational functioning of a person. It has a range of 1 - 100. A patient who falls between 1 - 10 scale will be considered as : "Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death." A patient who falls within the 91 - 100 range is considered as : "Superior functioning in a wide range of activities, life's problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms." Dr Wong considered that the Plaintiff's mental condition falls within the 51 - 60 range, namely, "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty is social, occupational, or school functioning (e.g. few friends, conflicts with peers or co-workers)."

Deterioration in intelligence

Mr Whyte

32. In respect of his intelligence assessment, the Plaintiff was examined in October 1991 by a psychologist, Mr Whyte who had since left Hong Kong. At that time, the Plaintiff's verbal IQ was 101, full scale IQ was 95. Mr Whyte stated that :

"Conclusions: LAU Ka Po presents a difficult assessment problem. He is a boy of Normal intelligence who is under-achieving to a gross extent. However it must be stated that his pre-accident achievement level was not very much better. The reasons for this are far from clear, as he apparently has two caring parents and feels secure and loved. ..... What would seem to be quite well demonstrated is that Ka Po has suffered a post-traumatic personality change, becoming irritable sleepy, undermotivated, emotionally labile and socially less adaptable. These changes are quite consistent with the effects of concussion which are well documented in the literature."

In 1993, Mr Whyte found the Plaintiff's verbal IQ had dropped to 89.

Mr Ng Kee On

33. In June 1996, another psychiatrist Mr Ng Kee On assessed the Plaintiff. His verbal IQ was at 84, performance IQ at 79 and full scale IQ at 81. Mr Ng in his evidence corrected the figures due to error in calculation. The performance IQ should be 76 and full scale IQ 79. Apart from the Wechsler Adult Intelligence Test, Mr Ng also applied the Wechsler Memory Test for the general memory functions of the Plaintiff and his findings were :

"General Memory Index Verbal Memory Index Visual Memory Index Attention/Concentration Delayed Recall Index

= 84 (average = 100) = 94 = 67 = 79 = 77"

Mr Ng stated that :

"the result on this test shows that overall, his memory ability falls within the low average level. However, details of the test result also reveal that while his memory for verbal information appears relatively intact, his memory for visual information, and his concentration and attention ability are functioning below the average level thus suggesting an impairment in these areas. His performance in the 'Delayed Recall sub-test' is also of a below-average level suggesting that he has difficulty in retaining learned information."

34. Mr Ng's conclusion is that the Plaintiff was suffering from a pattern of cognitive deficits consistent with those with a brain damage condition following a traumatic head injury : attention difficulty, memory deficits and a deterioration in intellectual functioning. This, in combination with other behavioural observations such as the reported complaints of frequent headaches, his notable passivity and poor volition, irritability, the relative slowness of his responses, reported change of personality, and the report of poor school and work performance, provides a strong indication of a cortical dysfunction as a result of a brain damage condition.

Dr Brian Choa

35. Dr Brian Choa, an expert instructed by the Defendant, stated in his report of 10th January 1995 that :

"I reviewed, in addition to all the medical reports on Lau, his school reports from both 1987-1988 which was the year before his accident, as well as later reports. It is important to emphasize in fact Lau performed very poorly even before his accident, failing to pass Chinese, English or Maths, the 3 most important subjects. He was, therefore, always destined for blue-collar work. It is possible and also plausible that he should have deteriorated further after the accident. I believe that Lau's under-achievement at school was primarily a social consequence and not a direct result of his accident. I can accept that Lau may have undergone some mild intellectual damage and personality change as a result of his accident, in which there was, in any case, no strong evidence that he sustained a serious head injury. I am repeatedly struck by how well and completely children recover from head injuries of even much greater severity. I am not, therefore, convinced that Lau's injury has had a significant effect on his long term prospects. I think it will be reasonable to give a permanent impairment to his person of about 5%. There is no long term loss of earning capacity."

In his report of 13th December 1996, Dr Choa stated that :

"I am prepared to accept that there may have been some delayed brain swelling which promptly responded to osmotic diuretics and did not recur. There is no verifiable objective record of post-traumatic amnesia but it would appear from the patient's own evidence this did not exceed a couple of hours. It is highly unusual, given these facts, especially when occurring in a child of eleven, for profound and prolonged personality and intellectual changes to occur. A mild degree of personality change and intellectual impairment I can accept and it was for this reason that in my report I offered an assessment of permanent impairment to his person of 5%. The relationship between the injury and his epilepsy is also far from clear cut. To give Lau the benefit of a doubt, I am prepared to increase this figure of permanent impairment to 10%. I remain unconvinced that his long term prospects were significantly affected by the accident."

36. Dr Choa referred to the fact that only one dosage of 10 grammes of manitol was administered whereas the standard dosage would be 2 to 3. He also said that in respect of the neurological observation charts which were kept for several days from the time of the Plaintiff's admission to hospital, no change in his conscious level was recorded.

Dr Singer

37. In his report of 26th June 1996 Dr K. Singer, a psychiatrist instructed by the Defendant, stated that the Plaintiff was suffering from the following conditions in direct consequence of the accident :

"(A) Psychological

Post-Concussional Syndrome (A syndrome following concussion - impairment of consciousness following a blow to head - characterized by symptoms such as headache, giddiness, impaired concentration and emotional disturbance. The condition is thought to be partly physical due to disturbance of brain function and partly psychological in reaction to psychological and environmental factors resulting from the accident). In Lau's case the Syndrome is evidenced by emotional disturbances such as irritability and tension and possibly mild memory impairment.

The condition is mild in degree (on a continuum of mild - moderate - severe)."

The prognosis of the Post-Concussional Syndrome was that it was likely to be permanent. Dr Singer assessed the incapacity from the Post-Concussional Syndrome as follows : Loss of earning capacity : 5% and Impairment of Whole Person : 5%.

38. As to the question whether the Plaintiff suffered brain damage from the accident, Dr Singer stated that there was no unequivocal evidence of brain damage but if it is shown he now has epilepsy this is likely to be due to brain damage from the accident.

39. Dr Singer was of the view that even if the Plaintiff did have cerebral oedema, he could have as in most cases, recovered completely without residual brain damage.

40. Dr Singer agreed with Mr Ng's finding regarding the intellectual level of the Plaintiff which was below average, functioning at the bottom end of the average level with some memory impairment. However, he disagreed with Mr Ng's conclusion that this was due to deterioration from the pre-accident level. He said Mr Ng seemed to have ignored the fact that the pre-accident level of intelligence was similarly low as shown by the school reports. He further disagreed with Mr Ng's assessment that there had been a deterioration of the general intellectual ability over the years following from the traumatic head injuries. He said :

"Such a view runs counter to theory and clinical knowledge concerning intellectual deterioration due to head injury : the whole of such deterioration if any occurs immediately after the head injury due to loss of brain cells caused by the injury : further deterioration does not occur as there is nothing else to cause it. If anything improvement occurs due to inherent capacity for recovery, adaptation and compensatory learning. Any deterioration over the years cannot be attributed to the head injury. Also in Mr. Lau's case the clinical history shows he has not deteriorated intellectually, probably improved somewhat since the accident."

41. Dr Singer said that the IQ level and the school performance were highly correlated. He said because of the Plaintiff's own description of his pre-accident personality being a passive, timid, lacking drive or interest and being shut-in, his intellectual capacity and personality both before and after the accident were largely similar. He said there was a small amount of impairment in the capacity. He maintained that if the Plaintiff had any deterioration in his memory or cognitive capacity, it was not attributed to the head injury because the findings of deterioration depended on psychometric findings which were not completely reliable and also on the psychological state of the patient who might be unco-operative, unmotivated during the testing.

My assessment

42. In my view the Plaintiff has suffered brain injuries resulting in personality change and cognitive impairment. I accept Dr Shroff and Dr Wong's evidence. The post-traumatic amnesia ("PTA") period of the Plaintiff should be taken into account. Despite Dr Singer's initial assertion that a patient's conscious level on admission to hospital after the accident was to be used to assess the period of PTA, he conceded that what was important was the level of consciousness in the first 48 hours of the trauma. In this case, on 8th September which was two days after the accident, there were fluctuation in the conscious level of the Plaintiff. The left hemiparesis must be an indication of damage to the brain. Dr Shroff referred to the four days of drowsiness or semi-conscious state which was highly relevant in assessing the extent of the brain injury.

43. The doctors agreed that as a whole, children would recover better from serious head injuries than adults. I take heed of Dr Choa's views. But in fact Dr Choa explained the mechanism of the injury, namely that the brain of a young child is full and is tightly packed into the cranial cavity and is therefore more likely to be injured than the older brain. Further, it is worthwhile bearing in mind what Hunter J.A. said in Lee Kin Kai, a patient by his father and next friend Li Wah v. Ocean Tramping Company Limited trading as Ocean Tramping Workshop (Civil Appeal No.64 of 1989, Judgment dated 31st January 1990) :

"First causation is essentially a matter for the judge not for the doctors. It is a matter upon which the judge will no doubt be assisted by the medical evidence but he is not dictated to by it. Secondly it is important to bear in mind that the law and medicine here, it seems to me, apply quite different standards. In law there is a sufficient causal connection if it is shown on the balance of probabilities that the accident was a substantially contributing cause of the injury. A cause is sufficient; it need not be shown to be the sole cause. The doctors' practice, what is known as the science of aetiology. In the words of one in particular, they look for 'clinical cause', proof certainly beyond reasonable doubt and perhaps beyond any doubt. They are looking for what Lord Kilbrandon called in McGhee v National Coal Board [1973] 1 WLR 1 p 10 'an irrefragable chain of causation'."

Education and academic performance

44. I think both Dr Singer and Dr Choa had laid too much emphasis on the academic performance of the Plaintiff before and after the accident in reaching the view that the Plaintiff had suffered no or very little cognitive impairment.

45. The Plaintiff was at Primary 6 at the time of the accident. He had just started the new term for a few days. After he was discharged from hospital he did not go back to school for one year. After two to three months of the accident, his parents arranged a private tutor for him. He resumed school again after one year and completed the Primary 6 education. He then went to a secondary school for three years. He failed his Form 3 promotional examination. He was unable to repeat Form 3 because he had failed in his major subjects and he was over-aged. He then attended a one year course in trowel trade with a technical institute. He managed to pass his practical subjects but failed in his theory subjects. He failed in the overall examination.

46. It is a fact that before the accident the Plaintiff was doing poorly academically. According to the school reports for 1987 to 1988 when he was in Primary 5, he failed in Chinese, English and Arithmetic. For the first term in Primary 5, he ranked 123 out of 149 students while for the second term, he ranked 145 out of 149 students. In his former primary school (he changed school because the family moved their residence) his positions were 27, 30 and 32 among 35 pupils.

47. After the accident, the examination results remained to be unsatisfactory. For his Primary 6 results, apart from the Chinese subject which was relatively better, the two subjects of English and Arithmetic were unsatisfactory. For the first term in Primary 6, he ranked 122 out of 141 and for the second term 137 out of 141. In Form 1 he passed in Chinese but failed in English and Maths, his ranking in exams was 192 out of 226. In Form 2, he passed in Chinese but failed in English and Maths, his ranking was 184 out of 212. In Form 3, he failed in English, Chinese and Maths and his ranking was 188 out of 207.

School result is one factor to be considered

48. School results may be taken into account to assess the intellectual capacity for a person but they should not be the only matter to be considered. Dr Wong and Dr Shroff are outstanding examples of how their early academic performance had no correlation to their subsequent achievement. Dr Wong did poorly in his primary school and had to repeat Form 1, while Dr Shroff's early education was disrupted because of the war. Although these two examples may be exceptional, the point here is simply that one should not take the scholastic achievements to be the sole criteria. Dr Wong said that the primary schools in Hong Kong emphasize learning by memory and if a student does not apply his mind to memorising his school work, he would achieve low grades in examinations. In respect of the development of intelligence for creativity and abstract thinking abilities, there is a growth spur in adolescence. Any one who has been living in Hong Kong for a substantial period of time must agree with Dr Wong's observation on the nature of education in our primary schools.

Substantial drop in IQ level

49. Although in 1991 when Mr Whyte examined the Plaintiff's symptom, he suggested that the change in the Plaintiff was due to post-traumatic personality change rather than cognitive deficit, the deterioration in the IQ scores since 1991 clearly showed that there had been intelligence impairment as a result of the accident. Certainly, when Mr Whyte examined the Plaintiff in October 1993, he recognised there had been deterioration in his IQ from the level he achieved two years earlier. He said that :

"Although I could not say this is pathognomonic of brain damage, it is strongly suggestive of it, in this context of a clearly Normal intellectual potential. Given the objective history of brain damage, I fear that there may be a progressive deteriorative condition which will strictly (and increasingly) limit Ka Po's career functioning."

50. A drastic drop of 14 points (revised to 16) in the IQ level in a five year period from 1991 to 1996 called out for a pathological explanation. Although Dr Singer said that the deterioration in IQ would usually occur in the first two years of the attack on the brain and that there was no evidence of further attack thereafter, Dr Shroff stated that there were known cases of continuing deterioration of cognitive processes following recovery of the head injury. The epileptic attacks and the lack of containment until recently could account for the deterioration of the IQ level. Dr Wong also said that while organically there was no further insult to the brain, a drop of 14 points was clearly an indication of a deterioration.

51. In my view although one should not attach undue significance to a variation of a few points between two different tests, the pathological explanation for a drop of 14 (revised to 16 points) over a five year span from 1991 to 1996 is due to the brain damage of the Plaintiff. The full scale IQ of 95 is in the middle range of the IQ level. In other words, in a population of 100 people, the Plaintiff would be in the 50th position as far as his IQ level is concerned. A mentally handicap person will have a IQ of 75. Considering the deterioration between 1991 and 1996, I accept that it is probable that there had been deterioration in the IQ since the accident. Dr Wong suggested an estimate of 5 to 10 points deterioration from the pre-accident IQ. I accept that there had been deterioration from the pre-accident IQ level although it is not necessary for me to work out a percentage figure of the deterioration.

52. Further, according to Dr Wong, the 77 score in the delayed recall index is a poor score. Out of 100 people, the Plaintiff would be at the last six. This is closer to the handicap range than the normal range.

53. Although Dr Singer on one hand stated that there was a high correlation between the IQ assessment and the scholastic achievement, he also appeared to challenge the reliability of the IQ tests. Assessments with the Hong Kong Wechsler Intelligence Scale for Children ("WISC") and the Wechsler Adult Intelligence Scale may not be 100% accurate but by and large, the studies reveal the stability and reliability of this form of assessment. Although Mr Ng used the adult test while Mr Whyte used the child test, according to the book Assessment of Children by Sattler, 3rd Edition, p.223 it was stated that :

"Research suggested that the WAIS - R (i.e. adult) yields slightly higher IQs than does the WISC - R (child) particularly with low functioning individuals although more research is needed on the comparability of the two scales."

Epilepsy

54. I further find the grand mal epilepsy suffered by the Plaintiff was a direct consequence of the head injury.

55. When the Plaintiff was two or three years old he often had febrile illness, i.e. illness accompanied by fever. According to Dr Wong this is a common occurrence of young children in Hong Kong. The Plaintiff also had febrile convulsion. Again, according to Dr Shroff, this is a common occurrence in young children.

56. According to the publication entitled Paediatric Perspectives on Epilepsy edited by Ross and Reynolds, febrile convulsions in children are uncommonly followed by the development of other forms of seizure disorder. The risk of subsequent epilepsy is low, at about 1.6% compared with 0.5% for young children without febrile convulsion. In a textbook of epilepsy by Laidlaw, Richens, over half of the studies devoted to estimating the prevalence of epilepsy in different countries show the rates lie between 4 and 10 per one thousand. The connection between febrile convulsion suffered by the Plaintiff and epilepsy can be discounted.

57. Dr Choa was the only doctor who did not accept the Plaintiff suffered from post-traumatic epilepsy. Even Dr Singer was of that view. The symptoms of epilepsy were in fact recorded in the medical report of Dr Brian Choa dated 10th January 1995 :

"He complains of a heaviness in his head sometimes amounting to a headache on the back of his head. This discomfort feels as though it is coming out from the inside of the skull. It is persistent but waxes and wanes in magnitude. At times, this causes him to feel floatiness on his feet and he has slipped on several occasions at work."

Dr Singer and Dr Choa's assessment of 10% impairment of the Plaintiff was in my view contrary to the weight of the medical evidence.

Pain, suffering and loss of amenities

58. In Chan Pui Ki v. Leung On & KMB (Civil Appeal No.263 of 1995) the awards for the various categories of injuries are stated as follows :

"Serious injury Substantial injury Gross disability Disaster

$400,000 - $540,000 $540,000 - $660,000 $660,000 - $1,000,000 $1,000,000 upwards"

59. Mr Wong submitted that the injuries of the Plaintiff fall short of the serious injury categories and a figure of $350,000 was appropriate. Two cases were relied upon :

Lai Yun Tai v. Chan Kin Hong and Others, H.C. Action No.5474 of 1985 (Master O'Donnell, dated 13.6.1996).

Liu Suet Un v. Yu Man Fai, unrep., H.C. Action No.A4433 of 1985 (Master Perrior, dated 31.3.1987).

I disagree with Mr Wong's view. The orthopaedic injury was no doubt minor, however, the head injury resulting in cognitive impairment, personality change and post-traumatic epilepsy brings this case within the top of the substantial injury category. The proper assessment of damage is around the sum of $660,000. The final figure after adjustment for inflation is $700,000.

Loss of earnings

Job history

60. The Plaintiff joined the construction course because he wanted to learn a trade. He was interested in the electronic and electrical courses but there were no more vacancies. Although there were vacancies in the painting and carpentry courses, he was not interested in them.

61. After he finished the training course, he worked for two months or so in a construction company called Po Tak Engineering Company ("Po Tak") doing water proofing work. He then worked as a kitchen assistant in a restaurant called Fuk Lam Kok Restaurant ("Fuk Lam Kok"). He assisted the cook by preparing the cooking materials. He was not required to cook or cut food. He experienced a lot of difficulties. He could not manage to finish the work in time and the cooks teased him. His colleagues would ask him to do all the work even if there were other people available. He worked there for eight months between October 1994 to July 1995. In Fuk Lam Kok he earned $7,100 which consisted of $5,100 salary plus $2,000 as tips and miscellaneous allowance.

62. After that he did not work for a while and he later found a job in a congee shop called Hoi Wong ("Hoi Wong") earning $5,500 per month with $300 as diligent bonus.

63. He then worked for a friend in a canteen of the Ngau Tau Kok Police Station ("Canteen") earning $7,800 per month. He was however unable to catch up with the speed of the job. After the orders were placed, he would gather the cooking materials for the cooks. There were too many orders and he could not read them. He worked in the Canteen for three months or so and he left the job on 3rd February 1997. He would go back to work at Hoi Wong on 16th February 1997. He was told by his superior there that if his performance was good, he would be promoted to a supervisor.

Brick layer

64. In the Statement of Damages, it is stated that but for the Plaintiff's cognitive impairment and post-traumatic epilepsy, he would have passed the brick-laying course and would have begun working as a brick layer. The claim for loss of earnings was based on what he would have earned as a brick layer and what he actually earned as a kitchen helper.

65. I do not think there is sufficient evidence that the Plaintiff wanted to work as a brick layer. It is clear from his evidence that even if he had passed the training course, he would still do what he was now doing, namely, in the kitchen business. In other words, whether he had passed the training course or not, it had no bearing on his future employment. He said that he would not consider repeating the course because at that time Po Tak had agreed to employ him. So even if he achieved better results, it would not make any difference to his future employment. From October 1994 onwards, he had been working in the food trade. I do not think it is realistic to assess the damage on the basis that he would have become a brick layer.

Police

66. The Plaintiff also expressed to his mother of his wish to become a policeman before the accident. This point was not pursued by the Plaintiff.

Executive Officer

67. Mr Pirie also made an alternative claim for loss based on the earnings of an executive officer or in sales or marketing earning $25,000 per month. Mr Pirie referred to the second report of Mr Peter Whyte dated 16th October 1993 in which he said that :

" In career terms, leaving aside possible negative effects of his personality change, he is now wholly unlikely to be able to find employment above the tradesman level, and it is by no means certain that he will succeed in achieving a trade qualification. A young man from his type of home, and with a Form 5 Certificate, could have expected to move, for example, to Executive Officer level in the Civil Service, or into a marketing organization in Sales or Administration. Any of these could offer a personable man with a good Normal level IQ a worthwhile career, and potential earning far beyond what he can hope to earn on a construction site."

Clerical occupation

68. In assessing the loss of earning of a young person, it is always difficult to project what possible occupation he would likely enter in the future. One must adopt a cautious approach and it is the general occupations rather than specific ones that one should consider. One should consider the matter by reference to the background of the child and the family. Although the Plaintiff's parents only received education up to the primary level, the Plaintiff has a sister who is now currently studying at Form 5. On the balance of probability I have no doubt that if not for the cognitive impairment, the Plaintiff could at least have finished his Form 5 education. The job opportunities open to a Form 5 graduate would definitely be higher than one who failed his Form 3. I find that it would not be beyond the capability of a Form 5 graduate to take up a clerical job. I disagree with Dr Choa's view that the Plaintiff was destined for a blue collar job. With the change of the structure of our economy from a manufacturing to a service base, there are not that many jobs in the factories any way.

Loss of past earnings

69. The parties have supplied the half-yearly report of wage statistics for September 1994 and September 1996 issued by the Census and Statistics Department, Hong Kong. The average monthly wages of supervisory, technical, clerical and miscellaneous non-production workers of different industries and occupations were listed. The average 1994 wage ranged from $5,331 for workers in the sanitary service to $13,486 for workers in the architectural service. The majority earned wages in the $8,000, $9,000 and $10,000 range. Again to be cautious it is appropriate to choose a wage level in the $8,000 range. The range covers from $8,465 to $8,997. I will choose a median figure of $8,700. By July 1994, the Plaintiff would have finished his Form 5 education. The award for past loss of wages is $8,700 from September 1994 to end of March 1997, at 30 months. The amount is therefore $261,000.

70. Between 5th September 1994 to February 1997, the Plaintiff earned $177,200 in various types of jobs. This amount had to be deducted from the $261,000, leaving a balance of $83,800 -

(a) 5/9/94 to 6/10/94 employed at Po Tak at HK$200 per day for 47 days = HK$9,400.00.

(b) 27/10/94 to 26/07/95 employed at Fuk Lam Kok earning an average of HK$6,750.00 per month x 10 months = HK$67,500.00.

(c) 27/7/95 to 30/11/95 employed as a Kitchen Assistant for Hoi Wong earning HK$6,050.00 per month x 14 months = HK$84,700.00.

(d) 6/11/96 to 20/2/97 as a Kitchen Assistant at the Canteen earning HK$7,800.00 per month x 2 month = HK$15,600.00

Loss of future earnings

71. The 1996 Statistics show that the $8,000 wage level had been increased since 1994. The range was from $9,496 to $11,367. I will choose a median figure of $10,000 as the basis for calculating future loss.

72. The Plaintiff was born on 5th March 1977 and is now aged 19. A multiplier of 16 for future loss of earnings was sought by Mr Pirie. Mr Wong said that the appropriate multiplier is 15. I think a multiplier of 16 is appropriate. In Lee Hon Cheung, a multiplier of 13 was used for a young man aged 18 at the day of the trial. This multiplier was agreed by the parties without argument. That multiplier was certainly too low.

73. The Plaintiff will shortly go back to work at Hoi Wong earning $6,200 per month. The award for the Plaintiff's future loss of earnings is ($10,000 - $6,200) x 12 x 16 = $729,600.

Loss of earning capacity

74. The Plaintiff will definitely suffer a handicap in the labour market because of the risk of epilepsy. Mr Pirie submitted 18 months worth of salary at $6,200 per month or $116,600 would be appropriate for this award. This is an area where one could not have any exact mathematical calculation, I would give a lump sum of $100,000 for loss of earning capacity.

Special damages

Loss of earnings of parents

75. The Plaintiff's father was operating a noodle shop in Tai Kok Tsui. The Plaintiff's mother also helped out in that shop whenever she was available. After the accident the parents had to look after the Plaintiff and they found that they could not cope with operating the shop and looking after the Plaintiff at the same time. The shop was closed for approximately 60 days and an estimate of $50,000 was lost. For the first month or so the shop was completely closed while for the second month or so, the shop was closed on and off.

76. I find that it was reasonable for the parents to close the shop to look after the Plaintiff. Obviously, the mother was finding it difficult to look after the Plaintiff herself. She described how after the accident the Plaintiff had to grasp her hands tightly when they were crossing the road. The parents operated long hours at the shop, namely from 8:00 am to some time after 8:00 pm. They had no other employees and obviously to travel all the way from Tsing Yi Island where they lived to Tai Kok Tsui and to the hospital caused a lot of problems.

77. Although the mother did not describe how the $50,000 estimated loss was arrived at, one can see from the profit and loss statement of the noodle shop that for 1988, the turnover was $358,468, or a monthly average of about $30,000. A 60 day period would be about $60,000. From this, the operating expenses had to be deducted. The parents received wages. Under the statement, the yearly wages were at $31,200 or $2,600 per month. The net profit was stated to be $53,590 or on average $4,466 per month. I will award $10,000 which was approximately the profit for two months due to the closure.

Travelling expenses to and from the hospital and to the doctors

78. A sum of $1,500 was claimed. This was an estimate of the taxi fare. Although the mother seemed to agree in cross-examination that a maximum of $600 was incurred, I think due to the lapse of time one could not expect her to remember the exact figure. The sum of $1,500 was pleaded in the Statement of Claim filed in July 1992. I have no doubt that this figure represented a more accurate estimate than the $600 referred to in her evidence, I would award the sum of $1,500.

Chinese medicine

79. The mother purchased deer ligaments and pig ligaments for the Plaintiff after the accident. A sum of $3,000 was claimed. A reasonable amount should be awarded for nutritious food. I am satisfied this was a reasonable amount and I would allow this sum.

Out-patient clinic charges - $600

80. This is agreed.

Private tuition charge - $13,900

81. From December 1988 to September 1989, a private tutor was hired to teach the Plaintiff at home. The mother's estimate of the cost was $800 odd per month. I will award a sum of $10,000.

Bone setter fees - $1,500

82. Bone setter was consulted after the Plaintiff finished the out-patient treatment. The mother's concern was about the heeling of the fractured leg. I find that it was reasonable for her to consult the bone setter and the amount incurred was reasonable.

Private doctor consultation fees - $3,800

83. I accept this amount had been incurred and I would allow this award.

Future medical care

84. Dr Wong said that the Plaintiff should receive psychiatric treatment at the same time when he received his treatment for the epilepsy. He would recommend a monthly treatment. The fee is $1,500 for a half-hour session in the Chinese University private patient scheme. He would recommend private treatment rather than under the Hospital Authority. Dr Wong said that in the public hospital the patient would be looked after by the trainee psychiatrists whose standard varies. Due to the loading of the patients, the time that a trainee psychiatrist can spend on a patient would vary between 5 to 15 minutes and the trainee psychiatrist would be rotated once after six months, so that there is no continuity in the treatment.

85. Dr Shroff also said that the Plaintiff would require treatment for his epilepsy throughout his life. He recommended consultation once every three months. Dr Shroff would not recommend a psychiatrist to treat an epileptic patient although Dr Wong said that he had been treating epileptic patients as part of their psychiatric treatment.

86. As for Dr Brian Choa, he said that a three-month review of the patient's condition would be adequate. After he had stopped taking the medicine in the first year, there should be a three-monthly review. If the epilepsy is free, there should be a 6 or 12 months review with an annual EEG check.

87. This is a case where psychiatric help would be necessary because of the Plaintiff's personality problems. At the same time treatment for the Plaintiff's epilepsy is also required. However, I do not think that a monthly treatment is needed. I will award $4,500 per year for future medical care based on $1,500 per session at three treatments per year. Applying a multiplier of 16, the amount to be awarded under this head is $72,000.

Summary

There shall be judgment to the Plaintiff on $1,715,800.

Interest

88. The Plaintiff is seeking interest as follows :

(i) On general damages i.e. pain, suffering and loss of amenities at 2% from 8/7/92 to trial.

(ii) On parents' claim at 5.75% from 6/9/88 to trial.

(iii) On pre-trial loss of earnings, at 5.75% from 5/9/94 to trial.

89. Mr Wong submitted that there had been undue delay in the prosecution of this case. The date of accident was 6th September 1988, the writ endorsed with the statement of claim was issued on 8th July 1992 and was served shortly thereafter on the Defendant. Mr Wong submitted that there should be a deduction of 30 months interest because of the delay.

90. It is not clear when the Plaintiff applied for legal aid but it appeared that by 1989, Legal Aid Department was involved because of the photographs of the scene taken by the Legal Aid in that year. The Plaintiff's present solicitor was assigned in August 1991. It had taken an extremely long time for the case to be processed by Legal Aid. I am pleased to learn that the Director of Legal Aid has recently announced that the processing time for personal injury cases will be shortened to a period of three months. I do not know the reason for the delay in the processing. It may well involve administrative reasons which I have no information. It is not appropriate to consider the time taken for the case to be processed.

91. The writ was issued on 8th July 1992 and was served shortly thereafter. On 29th November 1996, the Court set down the case to be tried in February 1997. It took nearly four years and four months after the commencement of the case before it was set down.

92. There is delay in this case but I could not say that the delay was so inordinate or so unreasonable that I should deprive the Plaintiff of part of the interest. Bearing in mind that the injuries had to be settled first, and the development of epilepsy which would require discovery of further medical evidence, I am not prepared to disallow the interest in this case. I will, however, add that in cases involving young children, solicitors should ensure that liability is tried first, even when the injuries have not been settled.

93. Mr Pirie also relied on the case of Tolley v. Morris [1979] 1 WLR 592 in which the House of Lords held that :

"... that section 22 of the Limitation Act 1939, as amended, conferred on a plaintiff under a disability an indefeasible right to bring an action for personal injuries within three years of ceasing to be under that disability; that, although there had been delay prejudicial to the defendant, the dismissal of the action for want of prosecution would not avail the defendant since the plaintiff had the right to bring another action within the period of three years from ceasing to be an infant."

94. He argued that in view of this decision, the court is not entitled to disallow interest in the case of an infant plaintiff. It is not necessary for me to decide on this point in view of the conclusion I have reached. Interest will be awarded as follows :

(i) on PSLA at 2% from date of service of writ to judgment.

(ii) on special damages at 5.75% from date of accident to judgment.

(iii) on loss of past earnings from 5th September 1994 to judgment.

95. The Plaintiff is entitled to costs nisi of the action.