LAU CHUNG NAM v. AU WAI MAN

HCPI 335/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.335 OF 2002

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J U D G M E N T

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1. The plaintiff claims damages against the defendant as a result of personal injuries sustained by him when he was knocked down by the taxi driven by the defendant (Registration No. GW211) at about 1:35 a.m. on 1 April 2000 when he was crossing Castle Peak Road in the vicinity of Hong Kong Gardens where the plaintiff lived.

2. Both liability and quantum are in issue in this case.

THE ACCIDENT

3. At the material time, the defendant was driving his taxi along the eastbound carrigeway of Castle Peak Road heading towards Tsuen Wan. The plaintiff had just alighted from a public light bus on the opposite carrigeway (i.e. heading towards Yuen Long) and was intending to cross Castle Peak Road to the other side where his home at Hong Kong Garden was.

4. It is common grounds that at the time of the accident it was raining.

5. The plaintiff successfully crossed the westbound carrigeway of Castle Peak Road. When he was crossing the eastbound carrigeway, he was hit by the nearside front of the defendant's taxi. It appeared that the initial collision caused the plaintiff to be tossed up and his body hit against the nearside front windscreen of the defendant's taxi and then the plaintiff fell onto the road beside the nearside rear door of the defendant's taxi after it came to a stop.

6. As a result of the accident, the defendant was charged with and convicted after trial of careless driving in the Magistrate's Court and was fine $3,500.00

7. It is the plaintiff's case that the defendant was negligent in causing the accident in that the defendant had failed to keep a proper lookout, was driving at an excessive speed in the circumstances, failed to give any sufficient warning of his approach and failed to stop in time to avoid hitting the plaintiff. The plaintiff relies also on the conviction for careless driving. It is the plaintiff's contention that the defendant was wholly to blame for the accident.

8. On the other hand, the defendant denies negligence on his part but say that the accident was either caused wholly or contributed to by the negligence of the plaintiff in that the plaintiff crossed the road when it was unsafe to do so, that the plaintiff ran across the road without paying any heed to the defendant's taxi and failed to keep any proper lookout for traffic on the road.

9. The plaintiff was the only witness who gave evidence for the plaintiff on the issue of liability.

10. His evidence was that it was raining lightly when he alighted from the public light bus. He was not carrying an umbrella nor wearing a raincoat. After alighting, he stood on the pavement on the westbound carriageway. He then checked the traffic to his right and to his left before he crossed the road at normal walking pace. From where he alighted from the public light bus, although there was a slight bend in the road to his left side, he was able to see traffic coming from the eastbound carriageway for some 50 metres. When he checked the traffic, he did not see any cars coming and so he crossed.

11. When he got to the double white line dividing the two carriageways of Castle Peak Road, he stopped at the double white lines for some 30 seconds when he again checked the traffic on his left (i.e. from the eastbound carriageway) before he proceeded to cross that carriageway. Again he could not see any traffic coming from the eastbound carriageway for that entire 30 seconds and then he proceeded to cross at normal walking pace. Before he succeeded in crossing the eastbound carrigeway, he was hit and lost consciousness. The next thing he realized was that he woke up in hospital.

12. For the defence, the defendant was the only witness of fact on the issue of liability.

13. After the accident, the defendant had given two statements to the police investigating into this accident. The first statement was given only a matter of hours after the accident occurred. The second statement was given in July 2000.

14. In his first statement to the police, the defendant said that at the time of the accident, it was raining heavily and he had his windscreen wipers on as well as the high headlights. He was traveling at about 50 kph along Castle Peak Road heading towards Kowloon and there was no other vehicle ahead of him. As he was driving, the middle front of his vehicle hit something and he heard a bang sound. Then he saw a man knocked down by the front of his vehicle. His whole body was on the left side of the bonnet of his vehicle and hit against the left side of the windscreen. He then stopped the vehicle and the police was summoned.

15. In that first statement, the defendant was asked whether he saw where the injured person was before the accident and he replied saying that when he first saw him (the injured person) he was already one to two feet away from the middle of the front of his vehicle.

16. After that statement was recorded by the investigating officer, the defendant was asked whether he had any corrections alterations or additions to make. In response, the defendant added a supplemental statement to say that at the time, the injured person ran across from the opposite side. His (the defendant's) speed was 50 kph and therefore the left headlight of his vehicle hit the injured person. He then stopped the vehicle immediately.

17. The second statement given to the police by the defendant was given on 19 July 2000 some three and a half months after the accident. In that second statement, the defendant said that at the time of the accident, he had his high beam and fog light on as well as his wipers because it was raining heavily. His visibility was about one bus' length and he was traveling at 50 kph. He agreed that 50 kph was probably too fast because of the low visibility and that he should have slowed down but added that there was no vehicle in front of him.

18. When giving his evidence in court, the defendant in his evidence in chief conceded that he had been careless in knocking down the plaintiff. However, when asked further by his counsel, he could not give any reason to say why he had been careless.

19. In cross examination, although the defendant maintained that the plaintiff had ran across his vehicle, he was not able to answer whether the plaintiff had run from left to right or from right to left across his vehicle.

20. In assessing the evidence before me, I am conscious of the fact that the head injury to the plaintiff is such that it will have an impact on his evidence. This is particularly so when he is asked to estimate time and distance. For example, his evidence that he had waited on the pavement for some 30 seconds and again on the middle of the road for another 30 seconds to check the traffic before crossing when on both occasions he did not see any traffic coming on both sides of the road has to be taken with some leeway being given to his mental state which is the result of his head injury suffered in the accident. This is all the more so when compared to the time of 10 minutes which he gave before the Magistrate as the time that he had spent on the pavement and on the middle of the road checking for traffic.

21. In the same way, his evidence of the estimate of the length of the road in the direction from which the defendant's taxi came has also to be taken with the same reservation.

22. I accept the plaintiff's evidence that he got off the PLB at the end of the crash barrier on the Yuen Long bound lane of Castle Peak Road and it was from that spot that he crossed Castle Peak Road. The crash barrier is also depicted in the sketch plan prepared by PC 21325 and produced in evidence.

23. I also accept the evidence of the defendant (as contained in his first statement to the police) that it was the nearside front of his taxi which hit the plaintiff and that the plaintiff's body then hit against his windscreen on the nearside. That is corroborated by the damage to the windscreen which can be seen on the photographs showing the defendant's taxi immediately after the accident.

24. In order for the plaintiff to be hit by the nearside front of the defendant's taxi, it would necessarily mean that the plaintiff had to cross almost the whole width of the defendant's taxi on the Kowloon bound carriageway of Castle Peak Road before he was hit. That would involve at least three or four steps from the middle of the road. That in turn would mean that the plaintiff, if he had looked, ought to have seen the taxi approaching albeit that there is a very gentle bend along that part of Castle Peak Road in the direction from which the defendant's taxi came.

25. It was argued by counsel for the plaintiff that although the defendant admitted to driving his taxi at about 50 kph, even then the speed of the taxi could have been very much greater than that so that when the plaintiff started to cross the Kowloon bound carriageway, the defendant's taxi may not have been in sight.

26. I am not persuaded by that suggestion. By looking at the sketch plan, assuming the plaintiff had crossed the road perpendicularly from the end of the crash barrier where he alighted from the PLB, then that would indicate that the distance from the point of impact to the final resting position of the taxi and where the plaintiff fell after being hit (as shown on that sketch) was less than 10 metres which in turn suggests that the taxi could not have been traveling at a speed greatly in excess of 50 kph.

27. When the case of the plaintiff is framed on the footing that he had, in the middle of the road, checked the road to his left for traffic but did not see any cars coming before he crossed, and then was hit by the nearside of the defendant's taxi after some three or four steps, the only conclusion that I can come to must be that such evidence of the plaintiff cannot be accepted.

28. It was also contended for by counsel for the plaintiff that it was possible for the plaintiff to have missed seeing the defendant's taxi based on the defendant's admission that visibility was down to a bus' length.

29. Again I do not accept that contention. While it is one thing for a driver behind the wheels of a taxi to have his visibility hampered in heavy rain because of the rain splashing onto his windscreen just in front of him, it is very different for a pedestrian out on the street even with the same heavy rain falling because the pedestrian has not a windscreen in front of him on which the heavy rain is splashing and which is obstructing his visibility.

30. Accepting in this case as I do that the defendant had his high beam on, there can be no reason for the plaintiff not to have seen the defendant's taxi if the plaintiff had looked to check the traffic to his left when crossing the road, even in heavy rain.

31. I therefore come to the finding that the plaintiff after alighting from the PLB made a dash across Castle Peak Road because it was raining heavily and in doing so had failed to properly check to see that there was no traffic approaching. The failure to check for traffic was probably also due to the fact that at 1:30 a.m. that stretch of Castle Peak Road is relatively free from traffic which the plaintiff on this occasion took for granted.

32. As for the defendant, I have little doubt that what was stated by the defendant in his first statement to the police come closest to the truth of the matter in so far as this accident was concerned.

FINDINGS OF FACT

33. From all the evidence before me I find the following facts :

(a)	The defendant was driving his taxi along the east bound carriageway of Castle Peak Road at a speed of around 50 kph at the material time immediately before it hit the plaintiff;
(b)	The weather at the material time of this accident was that it was raining quite heavily;
(c)	The visibility of the defendant driving the taxi was very low, not more than one and a half car's length;
(d)	Due to such low visibility, the defendant did not see the plaintiff until the plaintiff was about one or two meters in front of his taxi and at which time it was impossible for the defendant to stop in time or to avoid hitting the plaintiff;
(e)	As for the plaintiff, I find that he got off the PLB at the end of the crash barrier as shown in the sketch plan prepared by PC 21325 and it was from there that he crossed Castle Peak Road; and
(f)	I further find that because it was raining heavily, and because the plaintiff neither had an umbrella nor raincoat, he had dashed across the road without properly checking the road for traffic.

LIABILITY OF THE DEFENDANT

34. The defendant was convicted of careless driving by a magistrate. Where there is a conviction for careless driving, it is quite clear that the onus of disproving negligence is shifted to the defendant. (see Stupple v. Royal Insurance Co. Ltd [1971] 1 QB 50).

35. Far from having disproved negligence in this case, the defendant, when giving evidence in the witness box, confirmed his carelessness for this accident when he said that he believed both he and the plaintiff were each to blame for the accident.

36. Moreover, from the findings made above, I am of the view that the defendant was driving at an excessive speed, albeit that 50 kph was within the speed limit of that stretch of the road where the accident occurred. It was excessive because the defendant's visibility was only down to "about one and a half length of a taxi". And that, from the findings above, was precisely one of the main causes of this accident.

37. In the circumstances, I have no hesitation in holding that the defendant was negligent for this accident.

CONTRIBUTORY NEGLIGENCE

38. Contributory negligence is alleged against the plaintiff in a number of ways.

39. One of my findings above was that the plaintiff had dashed across the road without checking the condition of the traffic before doing so for the reasons given.

40. On that basis there is clearly contributory negligence on the part of the plaintiff.

41. I turn now to deal with the amount of contributory negligence.

42. In the present case, not only was the defendant driving at an excessive speed in the circumstances but also in condition which severely limited his visibility such that he did not see the plaintiff until it was too late. The plaintiff on the other hand did not keep a proper lookout for traffic condition and was dashing across the road.

43. In all the circumstances, it would be reasonable to attribute 20% contributory negligence to the plaintiff in this case.

QUANTUM

44. I turn now to deal with quantum in this matter.

INJURIES AND TREATMENT

45. After the accident, the plaintiff was taken by ambulance to the Accident and Emergency Department of Tuen Mun Hospital and then admitted to the Neurosurgical Ward of the same hospital.

46. He was unconscious when he first arrived at Tuen Mun Hospital. He was found to have sustained a severe head injury with radiological investigation revealing a right intercerebral haemorrhage and a left frontal epidural haematoma as well as a right frontal cerebral contusion. He also suffered a fractured cervical spine at the C3 spinal process. There was a comminuted fracture of his left tibia and fibula.

47. Emergency operation for evacuation of epidural haematoma and for closed reduction and external fixation of the fractured left tibia and fibula was performed on the plaintiff the same day. The plaintiff was then found to have persistent elevated intracranial pressure and a further operation for right frontal lobectomy was performed the next day. Post operatively, the plaintiff was transferred to the Intensive Care Unit where he stayed until 19 April 2000. The fracture to his spinal process at C3 was treated conservatively.

48. The plaintiff was transferred to Kowloon Hospital for rehabilitation on 27 April 2000.

49. When first admitted to Kowloon Hospital for rehabilitation, the plaintiff was disorientated, still in post-traumatic amnesic phase and non-communicative showing non-purposeful movements of limbs. Motor power of the left limbs were reduced to grade three out of five and tightness of left finger flexors were noted.

50. He was initially bed-bound but with rehabilitation regained sitting balance by the third week and began to be able to follow instructions. His cognition continued to improve and was out of post-traumatic amnesia by early June. Full cognitive assessment in mid-June showed mildly impaired intelligence, mildly impaired attention and visual memory. His verbal intelligence and memory were slightly better than non-verbal performance. Mini mental status examination on 19 June 2000 was 18/30 showing moderate cognitive impairment. He needed assistance in daily activities but motor function did show some improvement.

51. On 28 June 2000 the plaintiff was transferred back to the Department of Orthopaedic and Traumatology of the Tuen Mun Hospital for slow healing of the tibial fracture and pin tract infection. Bone grafting and adjustment of external fixation was performed on him on 4 July 2000. The plaintiff was discharged home on 24 July 2000.

52. The plaintiff was re-admitted to the orthopaedic department of Tuen Mun Hospital on 18 August 2000 for removal of the external fixator from his lower left leg. During that occasion in the hospital, the plaintiff suffered an epileptic convulsion. Since that time, he has had regular epileptic seizures and convulsions, very often resulting in the dislocation of his left shoulder. When that happened he had to be hospitalized for two to three days each time. A handwritten record kept by his father starting from March 2001 shows that the plaintiff has had about 28 such epileptic convulsions in the space of two years between March 2001 to March 2003.

53. The epileptic attacks to the plaintiff had improved since he began consulting Dr Jason Fong in December 2002. There had been only one such epileptic seizure between March 2003 and the trial of this matter and that seizure took place in June 2003.

54. The plaintiff was examined by Dr Lau Hoi Kuen whose report dated 24 November 2001 stated that the plaintiff had made an excellent recovery from his fracture to the left tibia and fibula and that the range of movement of his left knee and ankle joint is well preserved. Dr Lau was also of the view that the fracture to the spinal process at C3 has completely recovered.

55. Dr Lau agrees with Dr Brian Choa that the plaintiff's main handicap is his uncontrolled epilepsy with the repeated dislocation to his left shoulder. Although he found the shoulder to be normal when he examined the plaintiff, he commented that it could become unstable with recurrent dislocation if the epilepsy remains uncontrolled.

56. Dr Lau further states that although orthopaedically there should be nothing preventing the plaintiff from returning to his pre-accident work as a cook, in fact he cannot do so because of the permanent cognitive impairment resulting from the head injury.

57. The plaintiff was also examined by Dr Brian Choa, a specialist in neurology. In his first report given in September 2001, Dr Choa was of the opinion that the plaintiff sustained a serious cerebral injury in the accident and which necessitated the removal of part of his right frontal lobe. As a result the plaintiff has been left with cognitive deficits, behavioural regression and mild emotional liability in the form of inappropriate mirth. However, his major handicap is his uncontrolled epilepsy.

58. Dr Choa is somewhat critical of the hospital treating the plaintiff for his epilepsy in that since its onset, the plaintiff has been on a single antiepileptic drug. It seems that no steps had been taken to try out newer antiepileptic drugs in the case of the plaintiff albeit that the newer drugs are more expensive but are able to control otherwise uncontrollable epilepsy. If these newer drugs fail, Dr Choa suggests epilepsy surgery as another possibility.

59. Dr Choa is further of the opinion that only when his seizures and fits can be controlled will the plaintiff become employable again. With his uncontrolled fits the plaintiff has to lead a supervised existence.

60. Dr Edmund Woo, a neurologist instructed by the defendant, states in his report dated July 2002 that the plaintiff has suffered a severe head injury in the accident but has made a good recovery being independent in his activities of daily living although he has not returned to work.

61. Dr Woo agrees that the plaintiff has post-traumatic epilepsy, headaches and subjective memory loss. His seizures (at the time of examination) occurs at a frequency of once a month. The neurological deficits have improved since the examination in September 2001 by Dr Choa and tests of cognitive functions yield normal results.

62. Dr Woo says that the plaintiff needs regular follow up for management of his epilepsy but that there is no reason for the plaintiff's epilepsy care to be transferred to the private sector.

63. Dr Woo agrees that it may be difficult for the plaintiff to return to his pre-accident job as an assistant cook because of his epilepsy but that he is suitable for less onerous work as a clerk, cashier, messenger or receptionist.

64. Dr Choa gave a second report in October 2002 after examining the plaintiff again. In his second report, Dr Choa once more repeat the opinions he had expressed in his first report. The only change made by Dr Choa in his second report is that his earlier prognostication that the plaintiff may be fit to work by 2003 was too optimistic and that the possibility that he may never be fit enough to be competitive in the open market is very real.

65. Finally, there is also a psychological report on the plaintiff prepared by Professor Peter Lee before me. That report is dated July 2003 and was prepared by Professor Lee after examination of the plaintiff.

66. Professor Lee shares the opinion of the other medical experts that the plaintiff has suffered a severe head injury from the accident but has made a relatively good recovery except that he still has unresolved post-traumatic epilepsy and a moderate degree of cognitive impairment. His intellectual functions were globally impaired.

67. Professor Lee comes to the conclusion that the plaintiff does not suffer from any psychiatric or psychological disorder and does not require any psychological treatment. However he is still bothered by headaches and his epilepsy is still not fully under control. Because of his epilepsy the plaintiff is not allowed to go out on his own thus his repertoire of social and leisure activities have narrowed significantly and he has not been in contact with his previous friends. Otherwise he is fully independent in all activities in his daily life.

68. Professor Lee is further of the view, from psychological consideration alone, that the plaintiff will have great problem coping with open employment in the immediate future and should best be placed in the sheltered workshop for the coming one year for rehabilitation and training. Over time, the plaintiff should be able to cope with simple non-intellectually demanding work.

PAIN SUFFERING AND LOSS OF AMENITIES

69. Under this head of damage, the plaintiff claims $900,000.00 on the basis that the plaintiff should come under the category of "Gross Disability" as it is understood in Lee Ting Lam's case.

70. On the other hand the defendant contends that $650,000.00 would be a reasonable amount.

71. I have been referred to a number of local decisions for awards under this head as follows :

(a) Siu Leung Sing v. Wong Fook Wing, HCPI 1096 of 1999;

(b) Wong Sin Lam v. Kuen Fung Construction Ltd, HCPI 1286 of 1999;

(c) Chan Kwun Tak v. Kwok Chung Fong, HCPI 676 of 1998;

(d) Lam Mo Bun v. Hong Kong Aerosol Co. Ltd, [2001] 1 HKLRD 540; and

(e) Yim Fat Fong v. Wong Kim Hung, HCPI 1173 of 1996.

72. While the awards given in the above cited cases may be viewed generally as a yardstick, the award under this head of damage must be made in the context of the pain suffering and loss of amenties to this plaintiff having regard to the injuries and resultant disability suffered by him.

73. With some reservation as to the opinion expressed by Dr Edmund Woo, I accept all the other opinions of the other medical experts which I have detailed above.

74. My reservation as to the opinion of Dr Woo is that it seems to me when reading his medical report, he has arrived at his opinion by taking an over simplistic view of the plaintiff's disabilities. He has not fully taken into account the plaintiff's slow response, thinking process, poor memory, borderline or limited intelligence and childish behaviour. He has also skirted over the plaintiff's epilepsy without considering the effect it has on the plaintiff. That is particularly so when all the other experts have stressed over these defects which the plaintiff still experiences.

75. In determining the amount to be awarded under this head of damage, I have taken into consideration that the plaintiff has almost fully recovered from his orthopaedic injuries to the extent that he is quite independent in his activities of daily living. For this reason, I have some reservation as to whether this plaintiff can be said to come within the "Gross Disability" category.

76. I accept that he is still suffering from moderate cognitive impairment and together with his epilepsy, which has only began to show some improvement in the early part of this year, they have resulted in the plaintiff's social and leisure activities having been significantly reduced. This amounts to a serious loss of amenities in a young man like the plaintiff.

77. I have also taken into consideration the number of operations which the plaintiff had to undergo as well as the frequency of his epileptic attacks which usually leave him with a dislocated shoulder. These go towards the pain which the plaintiff has had to endure.

78. In the final analysis, I am of the view that a reasonable amount to award under this head will be $800,000.00.

PRE-TRIAL LOSS OF EARNINGS

79. It is agreed between the parties that the plaintiff's pre-accident earnings as an assistant cook was $7,600.00 per month.

80. There are two issues in dispute between the parties relating to the damages under this head. Firstly the plaintiff pitch his case on the footing that had it not been for the accident, he would likely have been promoted from an assistant cook to Third cook by April 2002. He relies on the evidence of Man Lap Sun. The defendant on the other hand says that there is not sufficient evidence to warrant the award of damages under this head on that basis.

81. Secondly, the defendant contends that based on the opinion of Dr Edmund Woo, the plaintiff should have been able to resume gainful employment by April 2002 and therefore damages under this head should only be awarded up to that date.

82. As for the first issue in dispute, the evidence of Man Lap Sun is that it takes normally one to two years for a person to be promoted from assistant cook to Third cook and as the plaintiff's superior before his accident, he found the plaintiff to be a hardworking young man who was well able to cope with the duties assigned to him.

83. However, Man Lap Sun, although he was the plaintiff's superior at the plaintiff's pre-accident job and as such may have a say in the plaintiff's promotional prospect, he was not the plaintiff's employer. In so far as the plaintiff's promotion is concerned, it is not just his ability and competency which counts. Another factor must be the availability of a higher position or vacany for the plaintiff to fill before he can be promoted. In this respect although there is a letter from the pre-accident employer of the plaintiff, there is nothing to suggest in that letter that the plaintiff would have been promoted had it not been for the accident.

84. I therefore decline to accede to the suggestion of the plaintiff on this issue.

85. As for the second issue, I have already indicated above my reasons for declining to accept the opinion of Dr Edmund Woo. For the same reasons I much prefer the opinion expressed by the other medical experts, in particular Professor Peter Lee, when it comes to the employment prospects of this plaintiff.

86. I would therefore award loss of earnings for the pre-trial period at the pre-accident earning rate of $7,600.00 per month. In doing so, I have taken account of the economic downturn and that the restaurant business has been one of the industry to greatly suffer from it. In those circumstances, it seems unlikely that the plaintiff would have experienced any raise in salary even if the accident had not happened. Indeed that is quite apparent from the evidence of Man Lap Sun who is effectively receiving less salary now than at the time before the plaintiff's accident, albeit that he has changed employers several times.

87. The pre-trial loss of earnings therefore comes to $7,600.00 x 42 1/2 months which gives $323,000.00. In addition there will be the usual loss of MPF which is 5% of the monthly salary from December 2000 (when MPF became mandatory by law). The loss of MPF for the pre-trial period comes to $13,110.00.

88. Totally the damages under this head comes to $336,110.00

CLAIM FOR CARE AND ATTENTION

89. There is a claim for the cost of care and attention provided to the plaintiff by his family members, in particular his father and his mother.

90. This claim is based on the evidence of the plaintiff's father as to the care provided by him and his wife to the plaintiff. On that basis it is claimed the cost equivalent to that of a full time care assistant for the first 12 months after the accident and half the cost of a care assistant for the rest of the pre-trial period.

91. The evidence in this case was that the plaintiff was in hospital after the accident until his discharge home on 24 July 2000. When he was discharged from hospital, the plaintiff was relying on crutches to walk. By 17 January 2001 the plaintiff was able to walk without aids. When he was examined by Dr Choa in September 2001, Dr Choa was of the opinion that the plaintiff was quite independent in his activities of daily living.

92. On this evidence I am of the view that the plaintiff would likely have required regular care and attention after his discharge from hospital up to the time when he could be independent in his activities of daily living. It would be reasonable to assume that h e would become independent in his activities on daily living some three months after he was able to walk without aids.

93. In the circumstances it would not be unreasonable to make an award under this head but only in respect of the nine months after he was discharged home from hospital.

94. In taking such a view I am aware that one of the basis for this claim by the plaintiff is the fact that due to his epileptic attacks he had to be supervised at home and was not allowed to go out of the house unaccompanied. That in my view is not the same as the kind of regular care and attention given to a person who cannot take care of himself in his daily living because of the injuries sustained. The emphasis must be that such care and assistance has to be given on a regular basis during the period of incapacity.

95. Where as here, the plaintiff is kept under supervision by his family because of the fear of epileptic attacks, they are merely keeping an eye on him in the event that such an attack occurs. There can be no question that he is receiving regular care and attention in between attacks. Indeed when no attacks occur, he is well able to take care of himself.

96. As for the monthly value of such care and attention, I accept the suggestion of defence counsel and would value it at $7,500.00 per month. The amount of the claim under this head comes to $67,500.00

OTHER SPECIAL DAMAGES

97. In so far as other special damages are concerned, the parties have agreed $8,865.00 for hospital/medical expenses, $4,552.60 for traveling and $3,000.00 for a special mattress.

98. Quite apart from what has been agreed by the parties as stated above, there remains several items in dispute between them. The disputed items relate to medical fees paid to various bonesetters, medical fees paid to Dr So Wing Shun and Dr Jason Fong, traveling expenses, expenses paid to Crystal Health Club, special foods and medicines. I shall deal with the disputed items individually.

(A) Bonesetters fees

99. This claim relates to $450.00 paid to Wong Cheong totally for three visits in October 2000 when the plaintiff dislocated his shoulder during one of the epileptic attacks and to $800 paid to another bonesetter Seung Mo between 29 to 31 July 2002 when the plaintiff again dislocated his shoulder during another of his epileptic attacks.

100. Admittedly there is some overlap in engaging bonesetters when the plaintiff could have been treated at the Tuen Mun Hospital where he was normally taken for such purpose.

101. However overlapping in medical treatment does not per se prohibit a plaintiff from claiming the medical expenses paid. The overriding factor is whether it was reasonable.

102. When looked at against the number and the frequency of his epileptic attacks resulting in his shoulder dislocation, visits to bonesetters on only two such instances of shoulder dislocation is not unreasonable. Moreover the amounts paid to the bonesetters cannot be said to be excessive or unreasonable by any yardstick. Accordingly the amounts claimed will be allowed in full.

103. For the same reasons above, the $90.00 claim for travelling to the bonesetter will also be allowed.

(B) Fees paid to Dr So Wing Shun

104. There is a claim for $2,340.00 fees paid to Dr So Wing Shun and travelling expenses to visit him at $100.00.

105. The evidence from the father of the plaintiff was that because in September 2000 the plaintiff was still walking with a limp, the father took him to see an orthopaedist, Dr So Wing Shun to see if something more could be done for the plaintiff on two occasions. Each time he paid Dr So $1,170.00 and some medicine was prescribed by the doctor.

106. Again although there is clear overlap, it is quite understandable for a father to feel concerned for the severe injuries sustained by the plaintiff. Being only two visits to Dr So is not unreasonable in the circumstances and the claim will be allowed as well as the travelling expenses. Together they come to $2,440.00. The fees paid to Dr So are supported by receipts.

(C) Fees paid to Dr Jason Fong

107. There is also a claim for $3,800.00 being fees paid to Dr Jason Fong and travelling expenses relating to visiting Dr Fong in the sum of $288.00.

108. The evidence from the father of the plaintiff is that during the visit to Dr Brian Choa in October 2002, Dr Choa recommended the plaintiff to consult Dr Jason Fong. Dr Fong is a neurologist in private practice.

109. This is supported by what is stated in the penultimate paragraph of Dr Choa's medical report dated 10 October 2002 in which it is stated that neurologists in private practice may be more ready to try new medication in an attempt to control the plaintiff's epilepsy than government hospitals.

110. There is also a letter from Dr Jason Fong that the plaintiff came to see him first in December 2002 when he introduced Tripleptal to the plaintiff and gradually tapered off Dilantin and Lamictal (being the drugs prescribed by the hospital).

111. It is not in dispute that the frequency of the plaintiff's epileptic attacks and seizures have lessened markedly in the first half of this year. It is the father's evidence that the reduced frequency of the attacks came about after the treatment by Dr Fong. On balance the lessening in the frequency of the attacks was likely due to the change in the medication prescribed by Dr Fong.

112. In the circumstances, it was indeed beneficial, and therefore not unreasonable for the plaintiff to have consulted Dr Fong. The fees paid to Dr Fong are supported by receipts but that those receipts add up to only $3,600.00, being $200.00 less than the amount claimed.

113. In the circumstances, $3,600.00 will be allowed as will the travelling expenses of $288.00. Together they come to $3,888.00

(D) Travelling expenses

114. The plaintiff claims travelling expenses of $2,840.40, $551.20 and $8,316.00 all of which are disputed by the defendant.

115. The amount of $2,840.80 relates to his parents visiting him for 67 days when he was hospitalised in Tuen Mun hospital between 1 April to 30 August 2000. It is calculated on the basis of $10.60 per round trip by public light bus for each parent twice a day.

116. The amount of $551.20 relates to his parents visiting him for 26 days when he was hospitalised in Tuen Mun hospital between 29 September 2000 and 12 April 2002 on the basis of $10.60 per round trip by public light bus for each parent once a day.

117. The amount of $8,316.00 relates to his parents visiting the plaintiff for 63 days when he was hospitalised in Kowloon Hospital between 27 April to 28 June 2000 on the basis of $33.00 per round trip by MTR and public light bus for each parent twice a day.

118. Considering that the above claims are all by public light bus and MTR the mode of transportation cannot be unreasonable. Nor can it be unreasonable for the parents to have visited him twice a day for the period between the 1 April (the date of accident) and 30 August 2000 which is inclusive of the time he was rehabilitating in Kowloon Hospital since there are restrictions to visiting hours.

119. In the circumstances, the amounts claimed under this head will be allowed in full. They come to $11,708.00 in all.

(E) Crystal Health Club

120. The claim here is for $84,300.00 paid to the Crystal Health Club for crystal therapy given to the plaintiff.

121. The evidence from the plaintiff's father was that crystal therapy treatment was suggested to him by a friend who was not a doctor and had no medical background. It was also the father's evidence that the crystal therapy treatment was not benefitting the plaintiff and for that reason it was stopped. Moreover, no proper medical advice was taken before this treatment was embarked upon.

122. In all the circumstances, the amount spent on crystal therapy was not reasonable and will not be allowed. For the same reason the amount claimed for travelling to such crystal therapy treatment is also disallowed.

(F) Special foods

123. There is a claim for totally $69,000.00 for special foods. Of this $60,000.00 relates to the two years from accident until the issue of the Writ and $9,000.00 relates to the time from issue of the Writ until trial.

124. The evidence from the plaintiff's father was that after the plaintiff regained consciousness in hospital, the plaintiff was tube-fed in the hospital. Thereafter they made him special food and soups to help his recovery. The special foods and soup included chicken, fish with Chinese medicine which he purchased spending about $2,500.00 per month for the ingredients.

125. Considering the time spent by the plaintiff in hospital and thereafter in recovering and taking into account his epileptic attacks which only subsided in the earlier part of this year, I shall allow a lump sum of $50,000.00 for the special foods claim as being reasonable in all the circumstances of this case.

FUTURE LOSS OF EARNINGS

126. For future loss of earnings, I shall adopt the figure of $7,600.00 as the multiplicand.

127. Both parties have agreed a multiplier of 15 for this plaintiff.

128. In view of his present condition which shows good prospect of his epilepsy being able to be brought under control in maybe a year or so, I am quite convinced that the formula suggested by Professor Lee is a workable one, namely to place the plaintiff in a sheltered workshop for a year before he is let into the open employment market for some simple and intellectually non-demanding work.

129. There is evidence before me that the salary which is paid at the sheltered workshop averages around $1,000.00 per month.

130. As for the open market, a normal healthy individual would likely be looking at salaries in the region of around $5,000.00 as a cleaner, gas station attendant or other simple non-intellectually demanding work to which this plaintiff will be suited. However, the plaintiff, in the condition that he is in, having moderate cognitive impairment and with some childish like behaviour, will probably not be able to command such a salary even if he should be able to secure such a job.

131. I therefore accept the suggestion by counsel for the plaintiff that even if the plaintiff should be able to secure such a job, he would probably be paid only half of what would be paid to a normal healthy individual.

132. Future loss of earnings therefore is worked out as follows :

[($7,600 - $1,000) x 12] + [($7,600 - $2,500) x 12 x 14] = $936,000

133. Loss of MPF in respect of the future earnings would be 5% of the above figure which gives $46,800.00.

134. The total amount under this head of damage comes to $982,800.00.

INTERESTS

135. There will be the usual interests on the award for pain suffering and loss of amenities at 2% p.a. from the date of Writ.

136. There will also be interests on all pre-trial awards at 4% (being half judgment rate) from the date of the accident.

SUMMARY OF AWARDS

		$
PSLA		800,000.00
	Interests on PSLA	24,000.00
Total of all pre-trial awards		489,403.60
	Interests on pre-trial awards	70,148.00
Future loss or earnings		982,800.00
	Total :	2,366,351.60

137. From this total amount of $2,366,351.60 will need to be deducted 20% to take account of the plaintiff's contributory negligence. That will give a figure of $1,893,081.30. From this figure the $200,000.00 interim payment paid to the plaintiff in January 2003 will be deducted. This will give a final figure of $1,693,081.30.

138. Accordingly there will be judgment for the plaintiff in the sum of $1,693,081.30.

COSTS

139. There will be a costs order nisi that the defendant do pay to the plaintiff the costs of this action to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.