TANG SIU KIT v. LAM PO AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The Plaintiff who was only 7 years of age at the time, was walking across Castle Peak Road near Tuen Mun Clinic at 4.10 p.m. on 6 October 1980. At this time he was knocked down by a private motorcar owned by the 1st Defendant and being driven by the 2nd Defendant as the employee of the 1st Defendant. As a result the Plaintiff suffered severe injuries including a fractured left thigh and on admission to the orthopaedic unit of Princess Margaret Hospital was unconscious and later was put on skeletal traction and skin traction for a period of 2½ months. The plaintiff was discharged from hospital on 24th December 1980 and received follow-up out-patient treatment for 6 weeks while using 2 crutches.

2. As the Defendants have taken no steps in these proceedings and did not give any notice of their intention to defend this action, interlocutory judgment was entered against them on 19th September 1983. Both defendants were served by post with notice of this assessment of damages but did not attend the hearing.

3. A total of 6 medical reports on the plaintiff from Dr T.C. Lee, 2 reports from Dr Janie LEE, an educational psychologist, and 3 reports from Dr R. E. M. Wedderburn ,were produced in evidence. Furthermore, a total of 6 school reports relating to the plaintiff, TANG Siu Kit, were adduced. Dr Wedderburn in his 3 reports considered that the Plaintiff, who is now 11 years of age, has suffered no permanent impairment from the fracture of his left thigh, even though, his left leg still shows 3/8ths of an inch of shortening in comparison with his right leg. He considers that as the plaintiff continues to grow his left leg will become equal in length to the right. It is noteworthy that the plaintiff still suffers pain from his left leg when he partakes in physical activity for any extended period of time.

4. The real issue in this assessment is whether or not the Plaintiff suffered a head injury in this accident which has affected his learning ability. The plaintiff's mother claims that an x-ray of the plaintiff's skull on admission to hospital was normal, even though he was unconscious for about 10 hours and there is no record of the x-ray in the hospital report After the plaintiff had been thoroughly examined and subject to a variety of tests, Dr Janie LEE, an Educational Psychologist, concluded that he has deficiencies in intellectual ability and in spatial-perceptual ability. The various school reports produced confirm the plaintiff's poor academic record and that he is already 1 or 2 classes behind other students of his age. The plaintiff's learning problems were first noticed after this accident by his school teachers who recommended that he should be placed in a special school. The plaintiff's chances of obtaining reasonably paid employment in his young adult life are prejudiced and restricted by his learning disability. Because of this alteration t o his longterm employment prospects, Dr Wedderburn has assessed by way of a guideline only that the Plaintiff has a 5% impairment of the whole man in this respect.

5. Oral testimony given by the Plaintiff's mother and the plaintiff himself did not contradict the medical and school reports produced but rather corroborated that evidence.

6. The assessment of damages will be considered under the following heads:-

Pain, Suffering and Loss of Amenities

7. Counsel for the Plaintiff referred to various decisions set out in Martin & Rhodes textbook on Damages for Personal Injuries and the Hong Kong Law Journal and suggested that the left thigh and head injuries suffered by the Plaintiff came within the classification of "serious injury" as set out in LEE Ting-lam [1980] H.K.L.R. 657 for which $90,000 - $100,000 would be an appropriate award taking into account inflation since most of the earlier awards were made. In my opinion the plaintiff's disability in this case must be towards the bottom of the lowest category (serious injury) on the Lee Ting-lam scale for which the general range of awards in 1980 was $60,000 to $80,000. To update that range an increase of 50% should be allowed for inflation since then, so that an appropriate lump sum award for pain, suffering and loss of amenities is $90,000.

Loss of Future Earning Capacity

8. Counsel's submission was that because of the plaintiff's age and the uncertainty about his future working life a global award under this head would be more appropriate. Following the authority LAM Mei-lan v. LEUNG Yuk [1979] H.K.L.R. 600, which has certain similarities with the present case, the plaintiff's reduction in future income is assessed at $1,000 per month. It is appreciated that this assessment is somewhat arbitrary but cakes into account, firstly, that the plaintiff was a below average student before this accident and was unlikely to have completed a tertiary education regardless of his learning disability; and secondly, that the average monthly working wage for the manual occupations that the Plaintiff is Likely to take up has increased significantly since 1979 when the aforesaid case referred to was decided. Turning to the question of an appropriate multiplier to adopt in this case, it should be noted that the plaintiff is still only 11 years of age and it will be several years before he urns any income. After taking account of the following considerations; the usual vicissitudes of life for the plaintiff; the normal working life in Hong Kong; and the effect of increasing inflation on the Lump sum payment he will receive; the usual multiplier of "10" in such cases will be applied. The assessment for loss of future earning capacity is therefore $1,000 p.m. x 12 x 10 = $120,000.

Special Damages

(1)    Loss of Mother's Earnings:

9. I accept the evidence of the plaintiff's mother that her salary as a textile factory worker was reduced from $1,300 -$1,400 a month to $700 - $800 for the time taken off work to visit her young son every day he was in hospital (79 days). Further I accept her evidence that she suffered a loss of $400 in salary for the month or so that the plaintiff was at home on crutches and before he was able to return to school.

10. The award for loss of mother's earnings is allowed on the authority of the Court of Appeal in HO Kwai Loy v. Leung Tin-hong [1978]H.K.L.R. 72 and more recently in CHEUNG Yuk-chun v. MITSUI CONSTRUCTION CO. LTD. and another in a judgment of Deputy High Court Judge O'Dea given on 8th November 1984.

11. This loss is computed as follows:-

(a)     $600 a month x 79 days (period plaintiff in hospital)		=	$1,600.00
(b)    $400 for month after plaintiff released from hospital TOTAL		=	400.00 $2,000.00 ========
(2)                The CLAIM by the plaintiff's mother for expenses of $20 a day to travel by bus and taxi from her home to visit her son in hospital is allowed - ($20 x 79 days)		=	$1,580.00
(3)                Tonic and nourishing food prepared for plaintiff while in hospital and for 1 month after his discharge is allowed at $10 a day ($10 x 110 days)		=	$1,100.00
(4)                Hospital expenses of $5 a day for which most receipts are available is allowed ($5 x 79 days)		=	$395.00
(5)	Hire of walking crutches allowed	=	$150.00
(6)	Plaintiff's damaged clothing allowed TOTAL	=	$30.00 $5,255.00 =======

 

SUMMARY OF ASSESSMENT

(1)	Pain, Suffering and Loss of Amenities	$90,000.00
(2)	Loss of Future Earning Capacity	$120,000.00
(3)	Special Damages TOTAL	$5,255.00 $215,255.00 ==========

12. There will be interest on the general damages awarded for pain, suffering and loss of amenities at 2% p.a. from the date of service of the writ. There will be no interest on the sum awarded for loss of future earning capacity. On the special damages interest will be awarded at 5.6% from the date of the accident to judgment.

13. The plaintiff is to have have costs against the defendants to be taxed if not agreed and the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations. A certificate to issue for Counsel instructed by the plaintiff on this assessment of damages.