NG YAT YING v. LAM MING KWAN AND OTHERS

1977 HCA Nos.2495/2496

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. These claims arise from a traffic accident which occurred on 6th November 1974 and subsequent interlocutory judgments of the High Court, to which I shall make reference later. As a result of the accident the child victim in the first claim ("2495") suffered injuries the exact nature of which took some time to determine, she being a baby in arms at the time. The second claim ("2496") is three-fold in nature: (1) by the busband of the deceased and father of the child, who received multiple injuries (2) a claim on behalf of the estate of the deceased and (3) for the dependants of the deceased under the Fatal Accidents Ordinance ("F.A.O."). The deceased, it will be apparent, was the child's mother, was carrying the child at the time of the accident, and suffered fatal injuries in the accident.

2. Much of the evidence was agreed, and the amended schedule of damages was submitted, by consent, as part of the pleadings. A list of agreed document Nos. 1 - 23 was handed in, under deletion of items 6, 19 and 20. In addition, there was agreement in respect of the following items of claim.

3. As has been noted, the mother died as a result of this accident, the father suffered multiple injuries and the child injuries quite specific in that they could be described, but defiant of exact prognosis until she attained true maturity of bone - hence the range of medical reports upon her.

4. The medical evidence was all agreed and it was essentially straightforward :

Ng Yat Ying the child suffered -

Concussion

                    skull fracture

                    fracture of right superior pubic ramus (pelvis)

                    double fracture of left tibia and fibula

                    fracture of lower end of right tibia and fibula

all as particularly set forth in the Report of Dr. J.C.Y. Leong dated 8.12.75 - and sundry other consequential conditions and discomforts, as set forth particularly in the several Reports of Dr. Wedderburn (phased out, for the reasons stated, over a long number of years).

5. Mr. So for this child Plaintiff conceded that it was difficult to find closely comparable cases where damages had been awarded but referred me to cases numbered 1, 2, 3, 5 and 6 of his list of authorities and considered that against that background and taking into account the inflation factor, a proper award for pain, suffering and loss of amenity ("P.S.L.A.") would be $90,000. Miss Mok argued that certain factors were clear from all the medical reports (as indeed they were) and should be considered, the principal being that the child suffered no permanent impairment of any consequence and that the head injury left doubt as to whether the intelligence factor was in any way affected by the accident. She referred me to the authorities set out at B 1, 2, 3 and 4 of her written argument (marked "Z"). Miss Mok suggested an award of between $35,000 and $40,000 as being appropriate.

6. This is not an easy head of claim to assess. The child, an infant in arms when the accident occurred has made quite spectacular recovery over the years. The earlier fears of a caesarian section delivery at childbirth have effectively evaporated; she is, according to the medical evidence viewed as a whole, a normal, healthy and happy child with unimpaired perception and outlook. One of the imponderable factors mentioned was the extent to which she may have suffered distress and anxiety as a result of all the medical examinations, and the possibility of a residual concern in her own mind that future child - bearing might not be as straightforward as it might have been but for the injuries.

7. I consider it likely that some measure of anxiety must have attended the child in her many hospital visits but I doubt that much, if any, lingers. And it is highly questionable whether she gives serious thought to the possibility of problems with pregnancy, or that she will do so if and when that eventuality arises.

8. Looking at all the circumstances including inflation and at the range of awards in the cases cited to me - none of which comes very close to being analogous to this one - I consider that an appropriate award for P.S.L.A. for the Plaintiff, Ng Yat Ying is $65,000. The agreed special damages of $3,205 make a total award of $68,205. 

The Claim of the First-named Plaintiff Ng Wing-fai

9. The figure agreed between the parties for Mr. Ng's claim under the head of P.S.L.A. is $50,000 and I accordingly award that sum.

Loss of Earnings

10. The accident took place on 6th November 1974 and or account of it Mr. Ng was injured and admitted to hospital for 1 month. For some 11 months thereafter he was unable to walk without the aid of crutches. He had been employed as a lorry-driver, owning his own lorry. Earning no income during this 12 month post-accident period he had to sell the lorry and live off the proceeds of sale. Mr. So produced a colour chart showing Mr. Ng's working pattern from the date of the accident and the essential features of this were not challenged. What was challenged by Miss Mok for the Defendants was the extent to which, and when, Mr. Ng could have obtained better employment and also the details of his claimed earnings at various points down the years.

11. Mr. Ng gave his evidence as P.W.3. He described his working pattern as set forth in Mr. So's Schedule 1 at part A 1.1 to 1.8. This shows that it was not until September 1986 that he resumed work as a self-employed lorry-driver earning, what he claimed in his evidence to be, a constant income of $4,000 per month.

12. Mr. Ng impressed me as an earnest man of quite robust appearance who was careful about his physical well-being, and essentially truthful in his evidence. I accept that his primary desire throughout the post-accident period was to return to his job as a self-employed lorry-driver but that he was hindered in this by 2 factors: his inability to buy a vehicle for financial reasons, and his injuries and the emotional and psychological inhibitions arising from them which affected his will to drive.

13. Miss Mok took issue with inter alia this last factor and I should like to concentrate on it. Miss Mok contended that Mr. Ng could and should have started working as early as August 1975. I believe that this man was the type who would have done so had he been fit enough and I accept therefore that he was not fit to do so.

14. He described his continuing uncertainty about driving as the years went by; how his confidence had become eroded and how he postponed a decision to return to self-employed driving until his confidence had returned and he had found a partner who, it appears, paid the cost of the vehicle which they used.

15. I am inclined to accept Mr. Ng account of things. Apart from the physical injuries he sustained, he must to some extent have suffered trauma from the loss of his wife and anxiety about the welfare and progress of his daughter.

16. A former employer Ho Cheong-pui (P.W.4) described Mr. Ng's period of employment under him from August 1980 to August 1986. A table of earnings (marked "X") for that period was submitted as agreed.

17. I accept the table of earnings as set forth in Mr. So's amended Schedule including the period from August 1986 when Mr. Ng claimed a constant income of $4,000 per month. By this time he was happy doing the job he always wanted to do and was well into a second marriage. There was the obvious artificiality about a figure of $4,000 which remained constant as Miss Mok observed, but as I have stated, I found Mr. Ng to be essentially a man of truth and in his situation, the absence of a record of earnings and outgoings is understandable. I find Mr. So calculation of the total pre-trial period during which Mr. Ng could not work as a self-employed lorry-driver to be correctly stated at 11 years and 9 months - a total of 141 months. At the time of the accident, he was earning $1,200 per month and in September 1986 (I accept) $4,000 per month. From this, it follows

x 141 = $366,600.

18. His actual earnings during the same period were, accepting as I do, para. 1.10 of Mr. So's Schedule, $219,833.45. This gives a pre-trial loss of earnings as $366,600 under deduction of $219,833.45, which is $146,766.55.

First Plaintiff's Loss of Earning Capacity

19. This is a difficult item to adjudicate on. As has been noted, Mr. Ng is engaged once more in his favourite work and despite his slightly shortened leg end possibly recurring spinal discomfort, the element of risk attending him in his future at work must be small. I do not, however, accept, as Miss Mok urged, that it is non-existent, but consider equally that Mr. So's estimate of $20,000 is on the high side. The fact remains that his back injury might well prevent him lifting weights and it is well within judicial knowledge that from time to time a lorry-driver is, of necessity, required to do that. His potential efficiency is, therefore, somewhat impaired and taking into account inter alia Dr. Wedderburn's prognosis and a 5% impairment of the whole man, I assess the loss of earning capacity at $10,000.

The L.A.R.C.O. claim of the deceased Chong Suet-wah

20. Here, as has been noted, a multiplier of 16 for the "lost years" claim has been agreed. The multiplicand falls to be assessed. It was claimed on her behalf that she was earning $450 per month making garments at home, at the time of her death, aged 24; and that but for the accident she would have been able to earn $3,000 per month at the time of trial. She was wholly supported by her husband and no significant personal expenses or contribution to family expenses came out of her earnings.

21. Miss Mok took issue with those figures and claimed that the witness Mr. Fong exaggerated the productivity and potential earning capacity of the deceased. To some extent I must agree with her. Her actual earnings must have been affected by the birth of her 2 children in 1972 and 1973 and it is to be doubted whether the exigencies of running a home would have enabled her to earn the full $3,000 claimed. I incline to state her earnings at home to be $300 per month and her potential earnings at the time of trial at $2,500 per month.

22. The total pre-trial period is 151 months. The figure under this head is therefore $211,400.

23. Taking the multiplier of 16 as being agreed for "lost years" we have 16 x 12 - 151 = 41 months x $2,500 = $102,500.

Miscellaneous Special Damages

24. Mr. So suggests a calculation which includes payments by the husband to the grand-parents to look after the children from the point of commencement of payments in December 1975 to May 1985 when he claimed he paid $1,000 per month. Miss Mok insists that this is not a competent claim where the claimant is deceased. I do not consider it incompetent but feel that at least part of the payments made to the grand-parents were intended to be for their use also. The best one can do is hazard a guess at a fair figure overall and I would state an inclusive figure of $30,000.

25. As stated, the funeral expenses have been agreed at $6,500.

The F.A.O. claim

26. The deceased left 2 parents, still alive, the father Chong Shing Po being now 78 and the mother Ng Kam, now 74. A multiplier of 4 has been agreed.

27. The father claimed that the deceased at the time of her death gave her entire-earnings to her parents. Miss Mok questioned the truthfulness of this and again to some extent she has my sympathy. She was doubtless a generous and considerate daughter but she must have kept something for herself. I shall deduct something reasonable from the multiplicands already fixed and make them $1,000 and $2,000 respectively.

28. The total pre-trial period is 151 months, which at $1,000 gives us $151,000 in total. With the multiplier of 4, we have a post-trial loss of 4 x 12 x $2,000 =$96,000.

29. Finally,we come to the F.A.O. claim for the children - Ng Yat Sun, a boy born 5.5.72 and Ng Yet Ying, daughter born 11.12.73.

30. A multiplier of 14 has been agreed for loss of services as a housekeeper and loss of personal attention and care. The question that remains is multiplicand. The authorities and evidence I have considered persuade me that a reasonable figure, taking account of the interests of the husband and the children, would be $400 under each head of claim.

31. This makes the F.A.O. claim for the children as follows:

and, of course, means $67,200 per child.

32. Mr. So claimed for the husband under F.A.O. in respect of loss of the deceased's services as a wife and housekeeper. He seeks $1.000 per month for that and - on account of the husband's re-marriage - suggests a multiplier of 3.

33. This I do not consider an unreasonable claim. A less-than-adequate substitute for the deceased would be an amah, and she would attract wages of at least $1,000 per month on a part-time basis.

34. So I allow that and the multiplier too and assess that head of claim as $1,000 x 12 x 3 = $36,000.

35. It is common ground that the respective F.A.O. claims will merge with the L.A.R.C.O. claims if the latter are the greater.

36. I therefore summarise the assessment thus :

37. From the foregoing figures, on account of merging of awards referred to earlier, there will be no F.A.O. awards to the children and the husband, which causes the figures $134,400 and $36,000 above, to be deleted from this assessment.

38. This leaves the question of interest, and it is not insignificant in this case.

39. Clearly the case has dragged on. I do not see why interim assessments could not have been made somewhere along the way. The statement of claim is dated September 1977. Judgment against 1st Defendant was entered in February 1978. Judgment against 3rd Defendant came in December 1983.

40. By January 1984 the child's injuries had assumed a stable and definitive form. Dr. Wedderburn's report of 8.3.84 makes this clear. It would appear that nothing of consequence was done by the Plaintiffs for some 3½ years, by way of advancing these claims. I propose, therefore, to award interest only up to June 30th 1984, and not after that date. There will be interest on the general damages at the rate of 2% per annum from the date of the writ to 30.6.84. There will be no interest on the award for loss of future earning capacity, but the other special damages will attract interest at 3.5% per annum from the date of the accident to 30.6.84.

41. The Plaintiffs will have the costs of this assessment, which shall be taxed if not agreed.