LAM YIN FONG v. TSANG KAM CHEONG

HCPI 1458/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1458 OF 2000

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JUDGMENT - ASSESSMENT OF DAMAGES

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1. On 9 December 1997 this 7 year old girl (now 12 years of age) suffered life-threatening injures when she was knocked down and run over on a pedestrian crossing by a dumper truck driver by the Defendant.

2. She suffered a fractured pelvis, and right femur and a severe perineal injury. The abdominal injures were typical of the crush type. She was resuscitated on arrival at hospital and, following initial surgery on admission and further operation on 11 December, she was transferred to the Intensive Care Unit where she remained until 15 December. She was then moved to the general paediatric ward.

3. The laceration involving the perineal region was extensive and is demonstrated by a diagram in the medical reports. Understandably photographs of the extent of the resultant scarring in that area have not been taken but I can assess its nature and extent easily enough on the strength of the sketch and by reasonable deduction from the discreet photographs taken of other proximate or adjacent scarring. Initially external fixation was applied to her unstable pelvic fracture and a right calcaneal pin was inserted to deal with the fractured femur but it was necessary two days later, to perform open reduction and internal fixation.

4. An emergency laparotomy was performed to exclude any injury to intra-abdominal organs, but the other soft tissue injuries in the lower region required bowel and urinary diversion by means of colostomy and cystotomy. These were closed about four months later. In January 1999, just over a year after the accident, the surgical implants over her pelvis and right femur were removed.

5. This young girl suffered considerable pain as was apparent to Dr David Cheng from the drug charts, extreme shock and loss of blood, and was in a critical state. She also suffered a head injury evidenced by an entry in the hospital notes on 26 December, a little over two weeks after admission. Given her critical state on admission with blood loss and severe shock, it is perhaps not surprising that it was missed at the outset although one would have expected the A & E staff to be alert to the possibility of a head injury following such an accident. The entry reads: "occipital wound found ..." The remainder of the entry is unclear but it could be a reference to "head dressing". In any event she now has a permanent loss of hair over a 4 cm area corresponding to the injury in the occipital region.

6. In total this young girl has undergone five operative procedures at least and was an in-patient for seven months. She suffered recurrent urinary tract infections and extensive psychological and physiotherapy treatment in the appropriate paediatric units.

7. Her residual disabilities and problems are considerable and for the most part permanent. Orthopaedically she has made a remarkable recovery but that must not obscure the extent of her limitations.

8. Happily her right femur healed well without shortening, displacement or malalignment but the pelvic fracture was a serious one with resultant gross deformity and asymmetry, and a rotational deformity. It is this which accounts for the internal rotation of the right leg and a tilting of the lower lumbar spine.

9. She has right foot drop for which she needs to wear a splint. This was very likely due to an injury to the lumbosacral nerve plexus. Another obvious and chronic problem has been her sacral sore scar which is prone to breakdown.

10. She still has a poor walking gait with limp, difficulty in climbing stairs, and is unable to squat. Her participation in sports activities is severely limited. Although in the trusting environment of school and the Yan Chai Paediatric/Psychiatric Centre she indicates a greater degree of confidence in her physical ability than is displayed in other controlled environments, I think she is overstating her ability, to her credit.

11. She suffers from a neurogenic bladder requiring intermittent catheterization. This is likely to persist although she has adapted well to what, from anyone's view, is a significant and embarrassing condition, the more so for a young girl. As a consequence she needs permanent urological follow-up and monitoring. As she grows into womanhood this is bound to have a psychological impact.

12. Turning now to the gynaecological aspect, it is not difficult to anticipate the kind of future problems which she will experience. The report of Dr. Kenneth Chan is now three years old but its conclusions are valid for the future. It is mostly likely that any children she has in due course will have to be delivered by caesarean section. What he does not say, but which seems to me self-evident in view of her pelvic and leg injuries, is that she will have an uncomfortable time carrying a child in the later stages of pregnancy in particular.

13. The cosmetic aspect is set out fully in the reports of Dr. Gordon Ma dated 16 August 2000 (with photographs) and 26 May 2003. She has extensive vertical and horizontal abdominal scarring. There are smaller, but still noticeable surgical scars on the right and left sides of her lower abdomen.

14. The scars over both the iliac crests are extensive with the right sided one being particularly prominent owing to its concavity. The sacral scar is also extensive. A longitudinal scar over the outer aspect of the right upper leg is described as hyperpigmented.

15. I have not seen these scars for obvious reasons and neither counsel, exercising to my mind good judgment, has asked that I should. Dr. Ma also points out that the wearing of skirts and trousers will be troublesome as there is no bony support in the iliac region. Once again, for a girl and a woman in particular, this is a practical day-to-day disadvantage.

16. Some of the scarring can be improved by plastic surgery though it may well be some time before this young girl would be sanguine about embarking upon such procedures. The areas capable of improvement are: the bald occipital patch, the pulling scar over the right groin, and the sacral scar. It is reasonable to provide for the expense of these as an item of future cost not to be absorbed into the general damages for pain and suffering.

17. Finally I consider the psychiatric and/or psychological aspect. She missed a year's schooling. Her reports indicate, as in the case of many children of that age, ups and downs in performance both before and after the accident. She seems however to have settled back into a steady routine and performance. She clearly has her strengths and weaknesses. The former show that any cognitive deficit is minimal. Undoubtedly she has had, and still has to some small extent now, a degree of depression. I do not think I should set much store by her very diffident, monosyllabic and at times, barely audible evidence before me.

18. The very nature of a court, however relaxed we have all contrived to make it, is inhibiting for a young girl in her circumstances. She has had constant reminders of the accident and of the litigation from her home environment. Her parents have understandably been protective of her but have probably put enormous pressure on her as a result of which in their presence, I feel with some documentary support for my views, that she has underperformed. Miss Josephine Pinto for the Defendants has helpfully taken me to a considerable number of entries on the hospital records (I describe them thus in general terms) where this girl has demonstrated a degree of trust in and has confided in the staff with whom she has built up a very good relationship over time.

19. Of course, changing schools into the secondary level can be testing for many children, but I have to bear in mind that this girl, with her injuries and disabilities, finds acquiring friends and adjusting to the extent she can, to a new school curriculum and routine, quite difficult. At primary school her peers knew her before and after the accident and knew what she had endured. In her secondary school her peers have to acquire knowledge and understanding to enable her to make the transition but it will be slow-going at times.

20. Professor Peter Lee in a report of 31 January 2002, having been jointly instructed by both parties, carefully reviewed her then academic record. She had provided a conflicting clinical picture to him and it was clear that he had difficulty in reaching some objective conclusions. This did not indicate any lack of frankness on her part. The other objective assessments by those who have had her academic care and psychiatric/psychological care show her to be an extremely open, but troubled young girl who obviously wants to be as normal and participate in life as normally as she is allowed to. There is no doubt that she feels that she is an enormous burden to her family. Every effort must be made by her parents in particular, to remove this way of thinking from her mind. It is an obstacle to her continued progress and a significant exacerbating factor in her depression.

21. Professor Lee concluded that she is probably suffering from residual depression and post-traumatic stress disorder. In my view having reviewed all the independent record, the depression has a significant element which is not attributable directly or indirectly to the original negligence and the Defendants should not be saddled with liability for that element. The parents have passed on their concern about a number of matters which has caused a dilemma for their daughter and a degree of behaviour which is not the true consequence of depression. Professor Peter Lee was understandably reticent when he suggested that there was in her performance level in the cognitive tests a moderate to mild grade mental deficiency but that the impression given was likely to be highly inaccurate. Turning what we all now know, one can say, with relief, that there is no such deficiency. I accept his ultimate conclusion at paragraph 34.3 that:

"Her very poor performance, or lack of performance during my assessment of her cognitive and memory functioning are more likely due to her emotional difficulties and psychological problems rather than any genuine forms of cognitive or memory impairment".

In accepting his conclusion I am not dismissing that the undoubted head injury may well have been responsible for some short-term deficit.

22. I also resort to Professor Lee's perceptive assessment of the effect that the accident has had upon her:

"Yin Fong Lam ... suffered a drastic diminution in the quality of her daily life. She seemed to have been robbed of her childhood. She has become rather totally socially alienated. She has little sense of pleasure in her day to day living."

This is indeed a sad state of affairs. I discount for the purposes of this head of damages the degree of depression which was not caused by the accident and was not readily foreseeable as a consequence. Some degree of depression was clearly the natural consequence and must rank for compensation but that which persists is not, in my view on the evidence, the consequence of the trauma. It has its own specific cause.

23. There is however, as Professor Lee identifies, a number of factors which call for psychological treatment. Since his report she has benefited considerably from the skilled treatment at Yan Chai. As she goes through further phases of her development teenage and later womanhood she is likely to need some support and I must take this into account. The cost of such treatment is dealt with elsewhere in this judgment. It will be necessary for it to be provided in the private sector as there is no guarantee that the quality she has received in Yan Chai Centre will be replicated in an adult centre in a government hospital. It will I think require a specialist who needs to acquire her confidence and trust at these later stages of her life.

24. The final report of Professor Jack Cheng, dated 14 June 2003, underlines the extent of the physical disability. I have no doubt that if it is necessary to apply a category of injury introduced by the 1980 decision in Lee Ting-lan [1980] HKLR 657 then that of gross disability is appropriate. As I have indicated elsewhere, these categories do less than justice to the very broad range of injury, physical, mental and psychological which we now see in such cases. The full extent of the disability is not yet manifest but as I have indicated earlier it will appear in due course. It is not necessary to repeat the particular aspects. Anyone looking at this girl and reading the agreed reports would agree that the level of her injury and her disability is gross. In my judgment the proper level for general damages is an award of $900,000.

Past Medical & Travelling Expenses (Plaintiff & Mother)

25. These are agreed at $22,593.20.

Past Medical & Non-medical Consumables

26. These are agreed at $72,009.40.

Past Miscellaneous Expenses

Tonic Food

27. The sum claimed is $117,881. I think this is grossly excessive and although in the cultural context of Hong Kong it is, on the authorities, a valid item, there has to be some sense of proportion. Some of the items which make up this head of claim are normal nutrition. The Defendants are prepared to agree a sum of $20,000. In view of the length of time concerned over 5 years I will allow $30,000.

28. The value of personal effects destroyed is agreed at $500.

Past Value of Parental Care/Loss of Earnings

29. The amount claimed is $379,000. The Defendants are prepared to agree a figure of $350,000. In view of the nature of the Defendant's argument, I consider their figure reasonable. $350,000 is allowed.

Future Loss of Income/Loss of Earning Capacity

30. This is understandably the most contentious item. The loss of a year's schooling is difficult to make up. On present information, providing she has some extra tuition to help compensate for the interruption in her education, I think that she will not have missed out on her academic career although it is safe to assume that her earning career will have been delayed by one year.

31. There are obvious limitations on the type of job which she will be able to carry out. She will lack a degree of mobility. Her stamina may be affected. She will want to avoid a career which involves a display of her figure such as modelling clothes. The mobility problem alone rules that career out. She may thus need a sedentary job. This itself is likely to entail discomfort. Any job involving a degree of manual labour will be excluded. Waitressing, for examples, will be beyond her. On the other hand, if she is able to attain a management position her disabilities should not be an obstacle save if such a position demands long, active hours.

32. On the basis that I think she will not be affected academically in the long term it would be wrong to approach any loss on the basis of a hard and fast salary.

33. In think that she will have the capacity of earning more than the $5,000 per month. The figures advanced on her behalf are more likely to be reversed. I doubt her loss would be more than $5,000 monthly.

34. The first exercise is to calculate what a lost year means in financial terms i.e. the one-year delay in her entering the market place. If she was of tertiary level material educationally, I do not think the accident has altered that.

35. I think it is reasonable to take $12,000 monthly as her lost income for that first year. This means a loss of about $144,000 for the first year.

36. Thereafter there must be an element of conjecture. Although I have referred to a figure of $5,000 as a partial monthly loss to represent the reduced job opportunities, I think that may be a high figure and it may be lower. Annually I should proceed on the basis of a likely loss of $50,000. Bearing in mind that she will not reach the earning stage for about eight years, the multiplier must reflect an acceleration of receipt and should be no more than 16. This would produce a figure of $800,000. To that must be added the first year's loss (by reason of the year's delay) which, discounted to some extent for acceleration of receipt, will realise about $135,000. The total under this head will be $935,000.

Future Medical Expenses

Orthopaedic

37. I accept that public hospital treatment is appropriate but that I should allow, on a contingency basis, something for future surgery either in relation to the foot drop or the hip. The likelihood of arthritic change with the disruption of the pelvis is strong. I will allow $50,000.

Physiotherapy

38. I see no reason for her to move to the private sector for physiotherapy. I anticipate that the timing of the appointments can be adjusted to fit in with her school curriculum.

Occupational Therapy

39. I do not see any need for this. She has none at present. Her circumstances, as we know them to be from the records indicate that the input (from the hospital's various services) is meeting her needs.

Urological Treatment

40. The basic cost of annual treatment is agreed at $18,000. Thereafter a reduced cost applies, as the frequency lessens. The overall multiplier of 20 is not in dispute. Allowing for some future increase in the cost of services and that a life-time's treatment is essential with some risk attached I round the figure up to $250,000.

Cosmetic Surgery

41. The sum of $114,000 is agreed for these items dealt with in Dr. Gordon Ma's report and referred to by me earlier.

Psychiatric/Psychological

42. Whilst she is eligible for treatment at the Yan Chai Hospital she should continue to receive it there. It has clearly been successful and I doubt that resort to private services would provide the same degree of success.

43. In the future though, there is likely to be some need as she passes through certain phases. This should be on a private basis although it is difficult to predict the frequency or number of sessions of psychological counselling. I propose to allow a lump sum of $50,000 to cover all future treatment.

Future Cost of Medical Aids & Equipment

44. The orthotic support will be required for life although there remains a possibility with medical advance, of some ameliorative surgery. The cost is put in the range $200―$1,000 for a foot-drop splint. In the absence of more detailed information it would be reasonable to take the mid figure of $600 per item, or $1,800 per annum. Over 20 years this will cost $36,000.

Future Cost of Medical & Non-medical Consumables

45. It is not appropriate for the cost of tonic food to continue to form a head of damage. There is otherwise substantial agreement and I will adopt the Defendant's figure rounded down to $275,000.

Future Travelling Expenses

46. Two elements are agreed in relation to the Plaintiff herself. The Defendant suggests that the Plaintiff will need to be accompanied by the mother only for another two years. I think that this is a fair contention. The total figure allowed is therefore $74,400.

Future Cost of Domestic Services

47. I accept the Defendant's contention in respect of the mother's services and the sum of $46,800 is allowed.

48. As far as the replacement of domestic services is concerned the monthly sum of $780 is agreed but the Defendant suggests a multiplier of only 12. I think that this is too low. Many women perhaps most, are able to deal with heavy household work well beyond the age of 65. I think a multiplier of 18 (from the age of 15) discounted to 16 is more realistic. This realises $149,760.

Future Cost of Extra Tuition

49. As indicated earlier, this is essential although I do not think it will make up for the lost year. A further four years is reasonable. I think one hour per day is not enough but will approach it on the basis of 30 hours per month for ten months of the year. I agree that a multiplier of 3 is reasonable. The sum allowed will therefore be $3,600 x 10 x 3 = $108,000.

Case Management

50. I think that the Plaintiff's fund requires strict control through the court with reliance upon the services of the Official Solicitor. Therefore I do not make any provision for a case management.

Loss of Society/Services

51. I have deliberately left this head of damages claimed to the last because it calls for special consideration in the circumstances of this girl. This is essentially a claim by her parents for a sum of money to compensate them for being deprived of her normal personality and her existence as a normal family member. Put in another way it is claimed as compensation for the extra burden which has devolved upon them by reason of her condition. Section 20C of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23) is applicable. The parents quality under subsection (1)(e), although for some reason the term 'deceased' is used whereas it should say 'injured person'. (If the injured person in fact dies the claim should be made for a bereavement award under the Fatal Accidents Ordinance.)

52. Where a child is injured in such circumstances as these, and those injuries do not fall within a category which makes the child wholly dependent upon the parents, great care in my judgment should be exercised so as not to diminish the meaning and force of this particular provision. In my view the intention was to provide essentially, though perhaps not exclusively, for situations in which there was a permanent deprivation of the society of the injured person, as opposed to a transient loss. It should be borne in mind that the maximum award under this section is the same as the maximum bereavement award. In my view therefore the award should essentially be for those tragic situations whereby the injured person has suffered injuries of maximum severity, a more felicitous term used in Kemp & Kemp or the term 'Injuries involving Paralysis' which features in the "Guidelines for the assessment of General Damages on Personal Injury Cases" of the English Judicial Studies Board. To extend this head of claim to every situation in which extra demands are put upon parents by reason of a child's injury which falls short of the extreme, and which demands are essentially during a period of infancy, is to risk creating a disproportionate view of such a claim. In the case of this Plaintiff I have to bear in mind the arguments which Miss Pinto validly advances on the strength of the perceptive and factual comments in the medical records. Having said that, I do not consider that I should dismiss the head of claim altogether but make only a modest award so that a sense of proportion is maintained. In the initial stages this very severely injured girl of 7 years, hospitalised for about 7 months, needed an extra-ordinary amount of parental concern, love and care and her parents were deprived of the company and pleasure of a normal, healthy, active young daughter. Miss Pinto concedes that if there is to be such an award it should be $25,000. I think that is the absolute maximum in this case and I allow that sum.

Summary

53. There will therefore be judgment for the Plaintiff for $3,489,062.60 damages with costs to be taxed, if not agreed, on a Common Fund basis. Since such costs are to be on that basis, no sum should be deducted from the Plaintiff's damages for any other costs. On this basis I make no order for a Legal Aid taxation there is no need or justification for such. As I have indicated on other occasions the Common Fund basis covers all reasonable and necessary costs. If any costs have been incurred which fall outside this criterion, then they cannot, sensibly, be charged against the Plaintiff's damages. For the avoidance of doubt the provision of costs includes one hearing for the purposes of any payment out of sums of money. So that this is not dealt with on a piecemeal basis, thereby wasting effort and cost, a carefully prepared schedule should be submitted to the Court.

54. The Plaintiff is also entitled to interest on the usual heads of damages which rank for interest, at the prevailing rates. These calculations will be prepared by the Solicitors for lodging with the Court in due course.

55. Finally I should say how much I appreciated the sensitivity and realistic arguments of Miss Corinne Remedios for the Plaintiff and Miss Josephine Pinto for the Defendant in a case which had some problematic aspects. They both made my function easier to discharge.