LI YUET YEE AND OTHERS v. NG CHI HANG

 HCPI 451/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 451 OF 2006

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ASSESSMENT OF DAMAGES (3): THE YOUNGER SON

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The Younger Son

1. I also refer to the background of these proceedings as set out in the Assessment of Damages (1): the Wife.

2. The Younger Son, aged 5 at the time of the accident, is a direct victim.

“… Tsz Ho was thrown away and landed on his head.  Prior to the injury, Tsz Ho had been enjoying good past health.  Upon arrival in our hospital, he was semi-comatose and the Glasgow Coma Scale (GCS) was 11.  There were two lacerations over the head.  He was able to move all of his limbs.  CT scans of the head revealed fractures of the right parietal and temporal bones.  There was a small epidural haematoma over the right side.  Intracranial air was present.  Thus the diagnosis was head injury with multiple skull fractures and epidural haematoma.

Emergency operation, namely right side craniotomy & evacuation of the epidural haematoma and left side craniotomy for ICP monitoring, was performed by me on the day of admission.

He was initially cared in the Paediatic Intensive Care Unit (PICU) and later transferred to our ward.  He made an uneventful recovery after the operation and there was no neurological deficit.  Opinions from the Clinical Psychologist were sought for the patient and also his father.  Tsz Ho was discharged on 30 July 2003 …”

(Medical Report of Princess Margaret Hospital dated 7 November 2003)

Credibility of the Witnesses

3. Both the Husband and the Wife gave evidence for the Younger Son.  I accept their evidence on balance generally.  With consensus from the parties, I also met the Younger Son during the hearing to take a look at the scar on his head.

4. The scar was more or less the same as shown on the pictures attached to the doctor’s report before me.  Probably, as time went on, the scar has become less noticeable and is covered better by the growing of hair.

PSLA

5. Mr. Law asked me to award the sum of $600,000 under PSLA and Mr. Hemmings, $325,000 - $350,000.  In the authorities referred to me by Counsel, I find Leung Pui Yuk (by her father and next friend Leung Tai Fuk) (9^th Plaintiff) v The Incorporated Owners of Albert House a better comparable to the present case when the Younger Son only suffered lesser in the sense that he does not have too much recollection of the accident and hospitalization.  I will award him the sum of $400,000 under this head.

Value of Services of the Husband

6. Mr. Law urged me to award $300,000 for services provided to the Younger Son at the hospital and extra care for recovery thereafter.  Mr. Hemmings told me not to do so as it was no more than what any parent would be expected to do in ordinary course of events.  Further, the Husband would be compensated by his loss of earnings.

7. Upon thoughts, I will order the Defendant to pay a sum of $108,000 in the circumstances.

(a)   I accept on balance of the cleaning, feeding and exercising done by the Husband to the Younger Son.  They are more than what ordinary parents would do because no one is going to expect their child being knocked down by a vehicle and the hospitalized for 3 weeks.

(b) The condition of the Younger Son improved as time went on.

(c)  A maid charging at $3,000 per month for 3 years will in my view represented more or less the extra care spent by the Husband on the Younger Son.

Medical and Travelling Expenses

8. Medical and traveling expenses were agreed at $220 and $1,087.  I therefore award a total sum of $1,307 under this head.

Tonic Food and Loss of Property

9. Having considered the allowance of tonic food in the claims of the Husband and the Wife as well as the fact that no specific receipt was adduced in support of the claim for tonic food for the Younger Son, I will order the payment of $10,000 for it.

10. I also order the payment of $270 for loss of property as the Defendant agreed to it.

Future Medical Expenses

11. The Defendant also agreed the future medical expenses. I will award a total sum of $125,700 for the Younger Son under this head.

Loss of Future Earning Capacity

12. Mr. Law asked me to award $1 m to $1.5 m loss of future earning capacity to the Younger Son.  Mr. Hemmings said that there should be no award under this head.

13. On balance, I agree to accept that the injury has caused damage to the Younger Son affecting his future earning capacity.

(a)   In the joint neurology report dated 15 August 2005, the expert for the Defendant Dr. Yu opined that:

“ 1.  Tsz Ho sustained a severe head injury on 6 July 2003, but has made a remarkably good recovery.  His mother, however, has observed deterioration in his memory.  His performance in the primary school appears to have dropped when compared to that in the kindergarten, but it is difficult to draw a conclusion since the two systems and the schools are different.  However, it should be pointed out that the K3 (post-accident) school performance did not show deterioration compared to the K2 (pre-accident) performance.  Under the circumstances, psychometry data are helpful.  I agree with Dr. Choa’s analysis of Professor Lee’s data.  I conclude that Tsz Ho probably has a mild degree of neurocognitive dysfunction as a result of the head injury.

  2.  Tsz Ho is relatively young and the potential for further improvement of his neurological deficits is better than that of an adult.  Recovery may still be evidence within 5 years from the time of head injury, but the maximum degree of recovery usually occurs within 3 years.  Since he sustained the head injury 2 years ago, further improvement of his neurological functions is expected in the next 12 months.  The percentage of impairment of the whole person at this stage is estimated to be 7%.

  3.  Tsz Ho is concerned about the unsightly scar over the right side of the head.  This may in turn adversely affect his self-image.  Psychological support from this parents and teachers would be helpful, and assistance from counselors may be required.”

(b)   On the other hand, the expert for the Younger Son Dr. Chao said that:

“ 1.  In Professor Lee’s testing, there are two essential findings: There was a wide scatter in Tsz Ho’s performance on various subtests: His performance ranged from being in the 25^th centile to the 91^st.  Another important finding that Professor Lee did not seem to put enough emphasis on was the discrepancy between Tsz Ho’s verbal and performance Iqs.  In general the verbal IQ (in the absence of specific damage to language areas) reflects the patient’s pre-accident intelligence.  When there is a big gap between that and his performance IQ, this is evidence that his performance has deteriorated significantly as a result of brain injury.  Tsz Ho’s figures of 112 and 98 respectively are highly suggestive of such a deterioration.

  2.  Looking at Tsz Ho’s school performance.  He scored as in most categories in kindergarten.  Although it is not clear as to how the children were assessed in kindergarten, it is reasonable to assume that he was near the top of his class.  Since the accident, Tsz Ho has dropped to the bottom 20 to 25% of his Form.

  3.  Children of Tsz Ho’s age still enjoy a considerable amount of “plasticity” in brain function.  This means that children can redevelop skills lost from areas of brain damage much more so that adults can, so Tsz Ho’s present performance is likely to be a considerable underestimate of his eventual intellectual capacity.  I estimate the permanent impairment to his person secondary to brain damage at 7% of his person.

  4.  The scar with its attendant area of hair loss is indeed noticeable and a significant cosmetic disadvantage.  However, it could be remedied with a hair transplant, either now or later (when there may be advances in technology).  The potential cost of such a procedure should be taken into consideration and the opinion of a cosmetic surgeon should be sought.  For this, and for his discomfort in the head, I assess a further 3% impairment to Tsz Ho’s person, brining the total up to 10%.”

(c)   Indeed, with respect to Dr. Yiu, I prefer to accept the opinion of Dr. Chao.

(i)    Both of them agreed the test done by Professor Lee.  Dr. Chao carefully analysed the data of Professor Lee, and of which Dr. Yu agreed.

(ii)  Objectively therefore, the Younger Son lost 14 points in IQ after the accident.

(iii)    Irrespective the difference in choice of description as to the extent of injury, both experts concluded that the Younger Son had suffered 7% impairment because of the brain damage.

(iv)    The scar is permanent and requires cosmetic surgeon.  A further of 3% impairment is a fair estimate.  Indeed, Dr. Yu probably agreed that there was implication but did not put up figures only.

14. With these in mind, I will follow and apply the approach as in the case of the aforesaid authority of Leung Pui Yuk.  I will adopt the figure of $8,000 as the basis, as suggested by Mr. Law, being the difference of the average earnings of a person in supervisory role and general worker.  A multiplier of 13 as well as a discount by 70% to reflect the uncertainties of life is also appropriate.  I then arrive at the figure of $374,400 ($8,000 x 12 x 13 x 30%).

Loss of Medical Insurance Benefits

15. In my decision, I decline to award any damages to the Younger Son for his claim of loss of medical insurance benefits.  On facts, as pointed out by Mr. Hemmings, there is no or insufficient evidence to support such claim.  On law, Mr. Law has not been able to provide authorities to back up his proposition.

Summary

16. To sum up, I award the Younger Son:  

		$
(a)	PSLA	400,000
(b)	Value of services of the Husband	108,000
(c)	Medical and travelling expenses	1,307
(d)	Tonic food and loss of property	10,270
(e)	Future medical expenses	125,700
(f)	Loss of future earning capacity	374,400
(g)	Loss of medical insurance benefits  -	1,019,677

Interest and Costs

17. As in the case of the Wife and the Husband, the Younger Son will be entitled to interest on PSLA at 2% per annum from the date of the Writ herein until today.  As to special damages as per paragraph 16(c) and (d), interest will be calculated at half of the judgment rate per annum until today.

18. The Defendant shall also pay costs of the Assessment, including all costs reserved and Certificate of Counsel on 6 and 7 May 2008, on High Court scale and party-and-party basis, to be taxed if not agreed.  This order nisi will become absolute 14 days later.

19. It concludes all three Assessments of Damages before me.  I have nothing further to add save to express my deep gratitude to the assistance offered to this Court by both Counsel.