TAM KWOK TUNG v. LAM WAI CHUN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. In the early afternoon of Sunday 9th September 1981, two vehicles followed with one another for some considerable distance up Route Twisk. They were both travelling in the direction of Sek Kong. The leading vehicle was a Honda motor cycle ridden by the plaintiff, who was then a school teacher aged 54. Second vehicle was a B. W motor car driven by the 1st defendant, and owned by the 2nd defendant company. They met somewhere near the bottom of Route Twisk, and climbed the hill together to a point somewhere near the 12½ milepost and Tai Mo Shan Road. At that point there is, understand, a sharp S bend. The left hand curve of the S was successfully negotiated. The motor cyclist started to negotiate the right hand part of the bend, and when he was in a position well within his own half of the carriage way, his machine was struck from the rear by the near side front corner of the BMW. He was thrown into the road. He suffered severe head injuries in the process and has no recollection whatever of these events. Indeed, at the time itself he may well not have realised what had hit him.

2. The 1st defendant's account of this incident goes something like this. She said that she had been following the motor cyclist up the hill in second gear at a speed of not more than 20 miles an hour. But she says that when she came round the left hand part of the S bend she suddenly found herself confronted by the motor cycle in the carriage way in front of her, and only about 15 feet away. It was, she said, too close to brake. She therefore swung her vehicle to the right and accelerated. The manoeuvre, had it been performed successfully, would have enabled her to have swung across the corner and past the motor cycle. But there was another vehicle coming the other way, a motor car driven by a Mr. Wong.  In the result the manoeuvre totally failed. She failed to swing out in sufficient time and struck the plaintiff in the process. She failed to return to her own side of the carriage way in time, and struck Mr. Wong's oncoming car head on.  Mr. Wong had braked violently when he saw what was about to happen. I believe his vehicle at the time of that impact as nearly stationary. The 1st defendant does not seem to have braked at any time during this manoeuvre.

3. It is unnecessary to determine whether this swinging to the right by the 1st defendant was a deliberate attempt to overtake, or something done in panic. That it was misjudged is painfully obvious. It is really sufficient for  this case to say that she should never have put herself in that position in the first place. She only put herself in that position by driving too close to the motor cycle and too fast. It is in my judgment regrettably plain that the plaintiff was in no way responsible for what happened, and that this accident was caused solely by the 1st defendant's negligence.

4. The consequences of being thrown into the road way were very serious. In the laconic terms of the Senior Medical Officer of Princess Margaret Hospital; "On admission he was found to be suffering from a fractured skull, a fractured right clavicle and a left subdural haematoma" Two operations were necessary. The first was an emergency burr hole exploration of the skull; and the second a tracheostomy. He was deeply unconscious and remained unconscious for ten days, with complete retrograde amnesia. He was eventually discharges some five weeks later on 11th October. Some time later a brain scan was performed which revealed changes in the left frontal, left parietal and left temporal regions of the brain. These it is said are "suggestive of cerebral infarction secondary to trauma or cerebral contusion". The immediate physical consequences have almost entirely resolved themselves. By physical consequences I am referring to the violent headaches, the dizziness and the nystagmus from which the plaintiff was suffering.

5. What has persisted, and is much more serious, are the underlying mental and personality consequences. Intelligence tests were conducted which suggested "a global intellectual loss": what is called "a severe specific memory impairment" making it very much more difficult for him to learn new material and to remember anything. He has been described to me as a man who was something of perfectionist and who was quick in thought and action before the accident. He can no longer be so described. There has been an obvious impairment of intellectual function and memory. He suffers from what is, I think, commonly called dysphasia: an inability to find the right word and to express the thoughts that he is trying to express. This was particularly pronounced in the months following the injury. When he could not get his family and his friend to understand, he became angry and cross, and on occasions actually violent.

6. As I said he was a teacher. He returned to teaching again some time early in 1982. I think it was fair comment when more than one witness said that he was tolerated by his colleagues at school. It was, I think, regrettably apparent upon the evidence that this impairment of intellect and difficulties of a memory made him quite unsuitable to continue teaching. He could no longer cope with the work, particularly the job of correcting exercises in the evening. I can well accept that there were occasions when his anger and frustration boiled over in the classroom. But he was determined to continue if he could, and remained so until about September 1983 when some serious incident occurred about which I have had no direct evidence. He was then, I think, persuaded to submit his resignation on the grounds of ill health, with effect from the 1st February 1984. This resignation was readily accepted, as I think, because his mental state after this accident had rendered him quick incapable of continuing his job as a teacher.

7. The overall affect of this upon the plaintiff has been very unhappy. Before the accident, he lived two things, his work and his church, where he also corked as a lay-preacher. He has now lost his job as a teacher, and as he put it no one asks him to preach now. His wife has gone through a very difficult period. Before the accident she said the marriage was not 100% but she was not thinking in terms of separation. They are now, in fact, physically separated, although they are living on the same complex. It seems to me that the plaintiff now presents a rather sad and lonely figure. He has few interests and I suspect was not unfairly described by his wife as a drifter. His marriage may well be at an end, and he now seems to have few friends. He may be now slightly simple, but I think more relaxed and less hostile than perhaps immediately following his injury. It is regrettably obvious that his retirement year are very different from what they might have been.

8. This brings me to the figures. I'll deal first with the items of special damages claimed. I am dealing with what is described as schedule one in the plaintiff's particulars. Item (A) the fee to Princess Margaret Hospital is made out in the figure claimed 185.00. As far as (B) is concerned no direct evidence was given about this at all, save that the wife made it plain that she was visiting him in Princess argaret as I think with some regularity. I think I am entitled to take judicial notice that to get from Kam Tin in the New Territories to Princess Margaret in not the easiest of journeys, and to allow the wife 10 each way for the trip is not excessive. Overall I shall allow this item at a sum of 700. (C) is made out at 24.......(illegible) (D) is the plaintiff's expenses of getting to that hospital, which I likewise I accept at 80. (E) has been reduced to 9 and is made out. The same is true of (F) at 20. (G) is made out at a sum of 60. In the absence of explanation I think I shall take (H) at 20 a round trip and allow 120 not 180. Nothing has been said in support of (I) so I shall ignore it. (J) the wife told me that he was eating more after the injury, which is not unexpected, and I prepared to allow a figure there of 500. (K) the evidence was a bit muddled but I am satisfied that the wife employed a substitute at the figure she named which was $40 a day for some considerable period, whilst she was forced herself to give up her own work to look after the plaintiff.  She was a little vague as to the whole period but thought it was about 3 months. I think it is appropriate there to allow $3,300. Those items collectively total 4,998 on my calculations, which I hope someone is going to check.

9. I turn then to schedule 2 which are the pre-trial loss of earnings which run from 1st February 1984 when his resignation as a teacher took effect, and for convenience they are calculated to 31st May last. The figures have all been supplied by the Department of Education. With the 5% deduction necessary for his compulsory contribution for pension purposes to the Provident Fund, the figure works out at 120,317.50.

10. Schedule 3 as amended contains 2 items. The first is a loss of earnings at the rate of 8,193.75 (that is the net earning after the 5% deduction) for 27 months, because he would have retired on 31st August 1987. That produces a total calculation of 221,231.25. The next calculation is the reduced benefit from the Provident Fund. I have had a detailed calculation put before me by Mr. Kee from the Department of Education, which shows the difference between the sum he in fact received when he retired and the sum he would have received had he retired at 31st August 1987, is not less than 122,532.75. Those three items together for loss of earnings or loss of benefit from the Provident Fund come to 464,081.50.

11. In respect of part of that loss of earnings, the future loss, and in respect of the diminution in the benefit from the Provident Fund, there is an element of accelerated payment. I have considered whether it is necessary to discount it for that purpose. I have decided that it is not for two reasons. The first is that the Provident Fund calculation is plainly the minimum. It is based upon the rule minimum of a 5% interest rate, not upon the actual rate which has applied now for some years, which is 11%. The second is that the loss of earnings claim is reasonably recent and reasonably short lived. It seems to me appropriate to give no interest on the past and no deduction for the future. So the total of those two heads of claim comes to 469,079.

12. I then come back to the appropriate sum to compensate this plaintiff for pain, suffering and loss of amenity; the sum which reflects the impact upon his life which I have sought to describe and also takes account of the fact that I am proposing to award him a considerable sum for loss of earnings. This is always a difficult and painful exercise. But doing the best I can I think the appropriate sum to aware by way of general damages here is 90,000 and that produces a global sum of 559,079.

13. As far as interest is concerned I think there are two sums which do carry interest. The sums in schedule one which are basically the hospital expenses. I am going to round them up to 5,000, and say they carry interest of 7%, which is roughly half the current rate over thin period from the 9th September 1981 until trial. Secondly the 90,000 award will carry interest at 2% from the service of the writ, which for convenience I am postponing for a few days to 19th September 1984, until today. For the reasons I have already given I award no interest on the past toss of earnings.

14. So far I have been dealing with this case as though it was an ordinary personal injuries claim. Indeed I have to. But sadly it is not. The defendants thought they were insured properly, and I assume in their favour they paid a proper premium. Unfortunately they paid it to the Bedford Insurance Company. This was so ineptly financed and managed that it is now in liquidation. This is a tragedy for both parties.  It is a tragedy for the plaintiff because he may well find himself the recipient of an empty judgment. It is a tragedy for the defendants because instead of finding themselves protected against this eventuality, they are facing an enormous judgment. The position is the more perverse in a sense, because had the defendants been totally irresponsible, both the plaintiff and they would be better off under the existing contractual relationship in this industry as I understand it. By totally irresponsible I mean in fact totally uninsured. There is I understand in active negotiation a new scheme which if implemented could I hope bring comfort to all the parties in this case. I only hope that these parties are able to bring their negotiations to a successful conclusion, because the crying need for scheme like this is pathetically obvious to those of us who sit in this building and have to try cases such as this.