FUNG WING YEE v. CHEN JUNG CHIEN

HCPI 657/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 657 OF 2007

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J U D G M E N T

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1. This is an assessment of damages in respect of a claim by the plaintiff, a minor suing by her next friend, for damages for personal injuries sustained by her on 5 February 2006 when she was knocked down by a taxi driven by the defendant whilst crossing Po Hong Road in Tseung Kwan O. 

2. Liability having been agreed between the parties with the plaintiff bearing 25% of the blame for the accident, interlocutory judgment was entered on 9 January 2008 herein for 75% liability against the defendant with damages to be assessed. 

INJURIES AND TREATMENT

3. The plaintiff was 12 years old at the time of the accident. 

4. After the accident, she was taken to the Accident and Emergency Department of Tseung Kwan O Hospital where she was provisionally diagnosed to have sustained :

(a)  right temporal-parietal epidural haematoma;

(b)  left temporal subarachnoid haemorrhage; and

(c)  fracture of the right tibia and fibula. 

5. The plaintiff was then transferred to Queen Elizabeth Hospital (“QEH”) for admission and further management. 

6. She was admitted into the Intensive Care Unit (“ICU”) of the Pediatric Department of QEH.  Her Glasgow Coma Scale dropped to 7/15 soon after admission and emergency craniotomy and intracranial pressure monitoring was performed.  The plaintiff was put on ventilator care and her head injury was managed with maximal medical therapy.  The plaintiff remained unconscious for some 10 days during which time she remained in the ICU.  After regaining consciousness, she was transferred, first to the Neurology Department of QEH, then later to the Orthopaedic and Traumatology Unit of QEH. 

7. CT of the abdomen on the same day revealed a 2 cm diameter perinephric haematoma of the right kidney, which subsequently healed with conservative treatment. 

8. Orthopaedically, the plaintiff sustained a 15 cm open wound over her right leg and x-ray showed compound fracture of the right tibia and fibula. 

9. Emergency operation for debridement of the right leg wound and external fixator were performed on 5 and 9 February respectively.  This was followed by skin grafting for the right leg wound done on 14 February and bone grafting carried out on 13 March to promote bone healing. 

10. The plaintiff was discharged home from QEH on 1 April 2006 with out-patient follow up and physiotherapy on a weekly basis. 

11. The external fixator was removed on 6 July 2006 and she was put on a sarimentio brace for walking. 

12. The compound fracture injury to her right leg was complicated by non-union and also post-traumatic flexion contracture of the right toes which did not respond to physiotherapy. 

13. Close reduction and intra-medullary nail to the right tibia and Z-lengthening of flexor tendon of right foot were performed by operation on 5 March 2007.  For this operation, she was re-admitted into hospital from 3 to 12 March 2007. 

14. There was also superficial wound infection over the proximal wound after the operation in March 2007 and the infection only subsided after a course of antibiotic and removal of the proximal locking screw on 7 June 2007. 

15. The plaintiff was re-admitted to QEH between 16 and 20 March 2008 for yet another operation to remove the tibial nail and for tendon lengthening surgery of the right foot which still suffered from right toes contracture. 

16. At the time of the assessment hearing, the plaintiff still faces problems of the toes contracture and there are indications from her treating doctor that there is a possibility of yet a further operation to take place in August (being after the plaintiff’s School Certificate Examination) this year to deal with the toes contracture. 

OPINION OF EXPERTS

17. The plaintiff was examined and reports obtained from experts in three different disciplines, namely, neurology (Dr Edmund Woo, the single joint expert for both parties), orthopaedic (Dr Lam Kwong Chin, the single joint expert for both parties) and cosmetics (Dr Daniel Lee and Dr Ian Nicholson). 

Neurology expert

18. Dr Edmund Woo examined the plaintiff on 26 October 2007. 

19. Dr Woo noted from the medical records that the plaintiff did not regain consciousness for 10 days after the accident, but that at the time he examined her, she only complained of once or twice monthly occasional headaches at the right temple region lasting some 10 to 15 minutes. 

20. Dr Woo further noted that since two months after the accident, the plaintiff has not been on any anti-convulsants and no history of seizures. 

21. Dr Woo came to the conclusion that although the plaintiff had suffered a severe head injury, she had made a remarkable neurological recovery and has only mild residual headaches and absent-mindedness which is akin to mild post concussional syndrome. 

22. Dr Woo further took the view that from a neurological perspective, there should not be any limitation on her future employment potential. 

Orthopaedic expert

23. Dr Lam Kwong Chin first examined the plaintiff on 21 September 2007.  On that occasion, Dr Lam found the plaintiff to walk with a normal gait without aids or support, although she could not fully squat on the right side. 

24. Her right leg was shorter by 1.2 cm but without muscle wasting and ankle extension and eversion were reduced.  X-ray revealed sclerotic change with bony thickening at distal shaft of the right tibia. 

25. As for the toes contractures, Dr Lam recommended excising the long flexors and also recommended removing the nail (which was later done at QEH). 

26. Dr Lam examined the plaintiff again on 24 September 2008. 

27. On this occasion, the plaintiff complained additionally of a slight limp when walking and she needed to rest after 1-2 hours. 

28. Dr Lam found her complaints and the examination findings to be by and large the same as previously, except for the additional complaint of the limp.  The limp was described by Dr Lam as an occasional slight limp. 

29. On this occasion, X-ray revealed that the fractures had healed in satisfactory alignment. 

30. Dr Lam noted the contractures in the toes were better but the plaintiff still had difficulty wearing leather shoes. 

31. Dr Lam opined that further functional improvement was unlikely.  He recommended more exercise and physiotherapy.  He also added that the plaintiff should be able to continue to play the piano. 

Cosmetic experts

32. A joint examination was held on 10 November 2008 by Dr Daniel Lee and Dr Ian Nicholson. 

33. The examination revealed scars on her occipital region of her scalp and both her legs including surgical/graft scars. 

34. Two very noticeable and ugly scars stand out among them, being one on the side of her right knee and another at the rear of her right calf which is a depressed skin graft scar. 

35. For this latter scar, a composite flap with wide release and excision was recommended to improve the disfigurement and contour defect of the right calf.  Plastic surgery was also recommended for the alopecia (loss of hair) on the scalp. 

36. Both Dr Lee and Dr Nicholson were agreed that the scars would all be permanent and obvious despite what can be done to alleviate somewhat the unsightliness of them. 

ACADEMIC PERFORMANCE OF PLAINTIFF

37. The accident happened in February 2006 when the plaintiff was a student in Form 1A of the Hong Kong Taoist Association the Yuen Yuen Institute No. 3 Secondary School (“the HKTA school”). 

38. Before the accident, the plaintiff had obtained very good results in her primary 6 examination as well as in the class selection examination and was therefore assigned to Form 1A of the HKTA school, being one of two “Elite” class out of seven classes in Form 1. 

39. After the accident, because of the hospitalization and the aftermath from her injuries, the plaintiff could not attend classes for the rest of the second term. 

40. However, the plaintiff, by special arrangements with the school, was allowed to take the final examination of the second term relying solely on her own self studies for that remainder of the second term when she was unable to attend classes. 

41. Gauged by the overall results obtained by the plaintiff in Form 1A including the final examination for the second term, the plaintiff succeeded in obtaining promotion to Form 2 at the HKTA school, but her results were not good enough for her to be assigned to the “Elite” class in Form 2.  She had to settle for Form 2F, being a class for the under-achievers.  

42. The plaintiff resumed her schooling in September 2006 in Form 2F, going to school on two crutches each day. 

43. During the time the plaintiff was in Form 2F, her class attendances were further disrupted by her having to leave classes early, usually on Mondays, Wednesdays and Fridays to attend the hospital either for physiotherapy or out-patient follow ups.  There was further disruption for her class attendance when in March 2007, she had to be re-admitted to hospital for operation for insertion of the nail to the fractured right tibia as well as for Z-lengthening of the tendons of her right foot. 

44. At the end of the Form 2 term, the plaintiff was promoted to Form 3D of the HKTA school. 

45. During her term in Form 3D the plaintiff’s studies and class attendance continued to be disrupted by her still having to leave school early on Mondays, Wednesdays and Fridays for physiotherapy and follow up, but on a less frequent scale than when she was in From 2.  Unfortunately for the plaintiff, the classes for most of the science subjects (namely, Physics, Chemistry and Biology) were scheduled for the afternoon on those days when the plaintiff had to leave school early. 

46. Her class attendance was further disrupted when she had to be re-admitted into hospital to undergo the second operation in March 2008 for removal of the nail in her tibia. 

47. After completing Form 3D, the plaintiff succeeded in being promoted to Form 4 at the HKTA school.  Form 4 was the time for students at the HKTA school to elect the stream (Arts, Science or Commerce) into which they would wish to continue their studies.  However, the plaintiff’s results in Form 3 were not good enough for her to get into the Science stream in which she had wanted to be.  She had to settle for the Commerce stream because she was not interested in Arts. 

48. At the time of the assessment hearing, the plaintiff was studying in the Commerce stream in Form 5, at the end of which she will have to sit for the Hong Kong School Certificate Examination, being one of the more important public examination for all Hong Kong students. 

FACTUAL EVIDENCE

49. Factual evidence was adduced by the plaintiff.  Live evidence was called from the plaintiff herself, her mother and the vice-principle of her school.  A further witness, the plaintiff’s piano teacher who had given a witness statement, had her witness statement adduced into evidence since the defendant’s counsel indicated that this witness was not needed for cross-examination. 

50. The plaintiff adopted her witness statement and three other supplemental witness statements as her evidence.  Apart from those witness statements, the plaintiff further elaborated on some of the contents. 

51. In summary, the plaintiff’s evidence was that when she was discharged from hospital on 1 April 2006, she was originally on crutches, but because she found it difficult and slow using the crutches, she was provided with a wheelchair for convenience.  She continued using the wheelchair for more than a year. 

52. However, when she resumed her schooling in September 2006, it was not convenient for her to go to school in a wheelchair, therefore she relied on crutches when going to school.  As the school was near to her home, it took her about 5 minutes to walk to school with the aid of crutches and accompanied by her mother.  It was only some time after her operation in March 2007 that she was able to walk without the assistance of crutches. 

53. As for her schoolwork and performance, that was greatly affected by the accident. 

54. She had missed attending classes for the remainder of the second term in Form 1A after the accident.  Although the school had suggested to her to repeat Form 1, the plaintiff did not wish to repeat Form 1 but studied on her own at home after her discharge from hospital and was able to arrange with the school for her to sit the final examinations for Form 1 after the second term. 

55. However, her overall results in Form 1 including the final examination were not good enough for her to be promoted to the “Elite” class in Form 2, but that she was assigned to Form 2F. 

56. The other students in Form 2F were not well motivated to learn and there were also disciplinary issues with the students in that class.  Therefore the teachers had to spend more time dealing with disciplinary matters in that class resulting in less time being spent on teaching.  This made her unhappy since the learning atmosphere in Form 2F was very different from that which she was used to in the “Elite” class of Form 1A.  

57. There was also evidence from the plaintiff that other classmates in Form 2F would tease her and discriminate against her by saying that she was pretending or feigning her injuries and disabilities.  As a result she felt herself further and further apart from her classmates in her relationship with them. 

58. During the year that she was in Form 2F, she had to leave school early, usually on Monday, Wednesday and Friday afternoons to attend physiotherapy and follow up treatments at the hospital, and this further disrupted her class attendance at school.  Also being re-admitted to hospital for the operation in March 2007 meant she also missed classes during her re-admission to hospital. 

59. Apart from these disruptions in attending classes, the plaintiff also had difficulties studying at home when the pain from her wounds came on it would affect her mood for studying and concentrating. 

60. However, despite these hindrances, the plaintiff was determined to catch up on the classes and lessons which she missed at school by asking for assistance from her teachers after school especially for those days following the day when she had to leave school early thereby missing some classes.  However, there was a limit as to the assistance which could be given her in this way by the teachers since there were no remedial classes which could make up for those she lost due to her inability to attend. 

61. Due to such perseverance by the plaintiff, she managed to obtain a pass at the end of the school year in Form 2F and was promoted to Form 3D. 

62. In Form 3D, once again the learning atmosphere was similar to that in Form 2F since the students were not motivated in learning and again there was a lack of discipline in the class as a whole. 

63. There was also similar disruption to her class attendance, albeit on a lesser scale as she still had to attend physiotherapy and follow up on many of the Monday, Wednesday and Friday afternoons.  Moreover, since many of the science subjects were scheduled for these afternoons, she missed attending many of these science classes in Form 3D. 

64. Again when she went for her second operation in March 2008, she had also to miss those classes while being in the hospital. 

65. Despite all her extra effort in trying to catch up with her studies as a result of these disruptions, she was not able to obtain good enough grades to allow her to choose to enter into the Science stream when it came to having to select the stream upon her entry to Form 4.  In consequence she was only able to enter into the Commerce stream and not the Science stream in which she was interested. 

66. This inability to get herself into the Science stream meant that subjects such as physics, chemistry and biology were no longer included in her curriculum and that her all-time ambition of becoming a doctor could no longer be attained. 

67. At present she is now in the Commerce stream in Form 5 and will be sitting for the Hong Kong School Certificate Examination at the end of the school year. 

68. Despite all the obstacles which she had met in the past several years of her schooling, she is still determined to perform her best in the forthcoming public examination but with the realization that her hopes of becoming either a doctor or even a nurse can no longer materialize. 

69. She still harbours some hopes of becoming either a teacher or a social worker, but as she is now in the Commerce stream, she thinks that she may end up doing accountancy work after her studies. 

70. After the accident, the plaintiff was excused by the HKTA school from taking part in physical education classes, being the only student in her class to be so exempted.  It was only in Form 5 that she has resumed on a limited scale physical education activities in class but cannot run as fast as the other students due to the contractures of her toes. 

71. As for her piano playing, the plaintiff gave evidence that at present, she still had difficulty using her right foot on the piano pedal which is a constant hindrance to her piano playing.  For the time being, she has temporarily stopped taking piano lessons until her School Certificate Examination is over later in this school year, before she will resume her piano lessons. 

72. As for her daily living, the plaintiff gave evidence that she depended very greatly on her mother for assistance, particularly during the time when she was hospitalized and even after discharge from hospital when she could only move about on crutches or on a wheelchair. 

73. She also gave evidence that when her father bought a second hand car at the end of 2006, it became more convenient for her and her mother to go to physiotherapy and follow up when they were driven there by her father, instead of having to take taxis or public transport.  She also felt better when the family was able to go out to the New Territories for family outings and picnics during holidays with the family car. 

74. The plaintiff’s mother, Kam Siu Yung Sandy, gave evidence adopting her witness statement and two further supplemental statements to be her evidence.  She also elaborated on parts of her witness statements in the witness box. 

75. In summary her evidence was to the effect that during the time the plaintiff was in hospital, she was at the hospital daily to take care of the plaintiff, either bathing the plaintiff or assisting her to the toilet or just keeping her company because the plaintiff was scared or felt painful and required her to be by the plaintiff’s side most of the time. 

76. Even after the plaintiff’s discharge from hospital she would have to constantly take care of the plaintiff’s daily living at home, helping her for taking baths or going to the toilet because of the lack of mobility of the plaintiff.  She would also help the plaintiff with her physiotherapy exercise at home. 

77. When the plaintiff resumed her schooling in September 2006, the mother would walk with the plaintiff who was using crutches to and from school each day.  She would also prepare lunch at home and take it to the plaintiff at school during the lunch break, but that was something which she normally did, even before the accident due to the fact that the plaintiff did not like the food provided at her school’s canteen. 

78. She also gave evidence that she would normally accompany the plaintiff to physiotherapy or follow up consultations usually on Mondays, Wednesdays and Fridays afternoons.  As a result on those days that the plaintiff had to attend such treatments, the plaintiff will have to apply to leave school early for those afternoons.  At times they would take taxis for such treatments and consultations unless the plaintiff’s father was able to take leave and drive them there in the family car. 

79. She further confirmed that when the plaintiff studied at home, there were times when the pain was such that the plaintiff could not concentrate on her studies. 

80. From about the end of 2007, the plaintiff had to take additional tuition classes (outside of the school) in mathematics and English in order to catch up with her studies at school.  That also came about due to the substantial drop in the plaintiff’s academic performance after the accident. 

81. She gave detailed evidence as to the special damages incurred resulting from the accident. 

82. It was also the mother’s evidence that after the second operation in March 2008, the plaintiff had substantially recovered from the fracture to her right leg but the contracture of the toes was and still is a continuing problem for the plaintiff. 

83. She further confirmed that the plaintiff’s piano playing has been adversely affected by the inability of the plaintiff to use her right foot to effectively step on the right piano foot pedal.  

84. To help the plaintiff to recover quicker, she had prepared extra tonic food such as aweto, fish maw, sea cucumber and shark’s fin for consumption by the plaintiff and which, up to October 2008, has already cost about $17,000. 

85. As for the purchase of a second hand car by the plaintiff’s father, she explained that before the accident, the plaintiff frequently went out with her friends, but after the accident because of the pain from the wounds, the plaintiff could not go out with her friends.  Staying at home and feeling the pain from her injuries made the plaintiff emotional and caused her to be easily upset.  She then discussed with her husband to buy a second hand car which they did in December 2006 so that they could take the plaintiff out on family outings.  The car was also used at times to take the plaintiff to physiotherapy and follow up, which was more convenient to the plaintiff than going in a taxi. 

86. The vice-principle of the HKTA school, Cheung Jet Wing, also gave evidence.  He adopted his witness statement and supplemental witness herein as his evidence as well as elaborating on its contents. 

87. He confirmed that before the accident, the plaintiff had won the bronze medal several times in the Stamina Reward Programme when she was in primary 6 in Pok Oi Hospital Chan Kwok Wai Primary School before she was admitted to the HKTA school, which showed her to be an active and competent sports person. 

88. However, after the accident, she could not attend physical education classes but could only sit and watch other students do so during physical education lessons. 

89. As for the plaintiff’s academic performance, he confirmed that her academic performance and results were very good before the accident, so much so that she was placed in the “Elite Class” in Form 1A.  He added that amongst the students in the “Elite Class”, the plaintiff’s performance was considered to be average. 

90. He further considered that with her good performance in English Language, Mathematics and computer studies, gauged by her results before the accident, there should have been no difficulty for her to have continued studying in the “Elite class” as she progressed. 

91. After the accident, and due to the disruption it caused to her studies, he had discussed with the plaintiff’s parents the possibility of her repeating Form 1, but because the plaintiff did not wish to be a repeater, special arrangements were made for the plaintiff to sit the final examination at the end of the Form 1 year based on the plaintiff’s own self-study. 

92. However, since the results obtained by the plaintiff, though sufficient for promotion, was not good enough to promote her back to the Elite class in Form 2, the plaintiff was placed in Form 2F. 

93. He further confirmed that most of the students in Form 2F were under-achievers academically and also that there were known disciplinary issues with those students in that form. 

94. He further confirmed that the plaintiff had to frequently leave school earlier than usual when in Form 2F to attend physiotherapy or follow up at the hospital.  He attribute this to be part of the disruption to her studies which has adversely affected the plaintiff’s progress in her studies, although she was able to be promoted to Form 3D, also a normal class as opposed to the “Elite class”. 

95. In Form 3D, the plaintiff continued to have to leave school earlier, usually on Mondays, Wednesdays and Fridays, but less frequently than in Form 2.  However, since in Form 3, the science subjects were divided into physics, chemistry and biology, and most of the lessons for these three science subjects were scheduled for the afternoon on those three weekdays when the plaintiff had to leave school early, the plaintiff’s learning of those three science subjects were further affected. 

96. He also gave evidence that on one occasion in the mid-term examination in November 2007, the plaintiff was caught together with other classmates to having cheated.  He was shocked and disappointed to learn of this since the plaintiff had always been known to be a well-disciplined and well-behaved student.  Ultimately the explanation given by the plaintiff as to why she committed that transgression was that she was worried that she could not get good results for the subject.  It was also revealed that the plaintiff did not initiate such transgression, but on seeing other students peeping into the textbooks during the examination, the plaintiff herself also took a peep. 

97. After the matter had been discovered, the plaintiff was given a caution and had apologized for her misdeeds with the promise never to commit the same again. 

98. He also gave evidence that he had noticed in the HKTA school, there were times when the plaintiff was teased or discriminated or even ostracized by other students because of her lack of mobility due to the injuries. 

99. However, the plaintiff remained hard working and determined in her academic work and conduct and was well behaved towards her teachers. 

100. He further explained that there was a great gap between Primary 6 and Form 1 such that for students entering Form 1, they would usually have to spend some time to adapt to the changes as to the syllabus being taught. 

101. He also gave evidence that for the Elite class in the HKTA school, the quality of the teachers is better and the syllabus taught would be stricter and more difficult.  On the other hand, the students in the E and F classes were generally less keen to learn and they had more serious disciplinary issues. 

102. Accordingly, the better students were usually in the Elite class which created a positive study atmosphere.  Most of the students from the Elite class would choose the Science stream when the division was made in Form 4. Accordingly, the Science stream was usually made up mainly of students from the Elite class. 

103. As for the plaintiff, in his view, had it not been for the accident, she would very likely have continued in the Elite class after Form 1.  However, she had been seriously disadvantaged when she was assigned to Form 2F due to her overall results in Form 1A.  Although he had sympathized with the plaintiff, he explained that the school had no discretion to grant her any favour by placing her in the Elite class in Form 2. 

104. In the case of the plaintiff, he saw her as a very determined student and he believed that she would have done much better academically had it not been for all the disruption which the plaintiff had to face.  As matters now stand, although he understood that the plaintiff had all along wanted to pursue a university education, and he had no reason to doubt her ability to do so had the accident not happened, but the serious disadvantage caused to the plaintiff being now in the Commerce stream, he is of the view that she may not even be able to advance to a university because of all the disadvantages now faced by the plaintiff. 

105. The plaintiff’s piano teacher, Wong Yuk Ling’s evidence is as contained in her witness statement. 

106. Her evidence was to the effect that the plaintiff started taking piano lessons with her since 2001 and was both talented and interested in playing the piano. 

107. In September 2004, the plaintiff obtained a “merit” grading in her piano examination. 

108. In October 2005, the plaintiff sat for and passed her Grade 4 piano examination. 

109. Thereafter the plaintiff had decided to take the Grade 6 piano examination within the next two years. 

110. On the same day that the accident happened to the plaintiff in February 2006 the plaintiff had attended her home for a piano lesson in theory of music before the accident happened. 

111. After the accident, the plaintiff stopped taking piano lessons and only resumed in November 2006 sitting on a wheelchair.  At that time the plaintiff had difficulty applying the piano pedal with her right foot.  This had affected her playing the piano.  It would also seriously affect the plaintiff in taking the Grade 6 piano examination. 

112. The plaintiff had tried to overcome that difficulty by using her left foot to apply the pedal (which should normally be applied with the right foot).  But that caused her sitting position to have to be adjusted.  This also affected her performance. 

113. The plaintiff took the music theory examination in February and October 2007 but failed both times. 

114. Had it not been for the accident, the plaintiff should have sat for and passed the music theory examination at the end of 2006. 

115. Her development in piano playing had been slowed down by her injuries. 

116. In her condition, even if the plaintiff could pass Grade 6, she may not be able to pass the Grade 8, being the top grade or performance grade for piano. 

117. No factual witness was called by the defendant. 

FINDINGS

118. I found both the plaintiff and her mother to be thoroughly honest witnesses doing their best to recount the occurrences over the last four years since the accident, albeit that there were times when their memories slightly faltered in remembering dates or minor details of less significant events which they were giving evidence on, but that was only to be expected from someone recounting events over a long period of time. 

119. I also accepted the evidence given by the vice principle of the HKYA school as well as the plaintiff’s piano teacher.  They were both neutral witnesses and their evidence merely supported and confirmed many aspects of the evidence given by the plaintiff and her mother. 

120. As far as the plaintiff’s academic performance as a student is concerned, I have no difficulty in finding that the plaintiff was a hard-working and very determined student.  I accept the evidence of Mr Cheung, that had there not been any accident to the plaintiff, through her hard work and conscientiousness as a student, she should have no difficulty in keeping her place in the Elite class in Forms 2 and 3 before the separation of streams in Form 4.  In like manner, I also accept the evidence of Mr Cheung, that had there been no accident to the plaintiff, her scholastic and academic performance would likely have enabled the plaintiff to move on to a tertiary education in one of the local universities. 

121. Focusing in on the plaintiff’s desire of becoming a doctor, and having found in general, as stated above, that likely the plaintiff would have obtained a university education, I also take the view that although the plaintiff was said by Mr Cheung to be “average amongst the other students in the Elite class” at the HKTA school, the reports of the plaintiff quite consistently paint the picture that the plaintiff was not a brilliant student even if she was determined, hard working and conscientious. 

122. This can be gleaned by the fact that in all her report cards, what stand out consistently is that she obtained better grades in her assignments and homework, but often faltered when it came to examinations.  The plaintiff’s explanation for that was the disruption caused to her class attendances by the injuries from the accident as well as her lack of concentration studying at home due to the pain from the wounds.  However that explanation, if true, should affect both her assignments and homework grades as well as her examination grades. 

123. The better view would appear to be that the plaintiff, being the serious, determined and hard-working student that she is, makes up for those short-comings of hers by sheer hard work and preparation such that she can obtain better grades in her assignment and homework, and also by the fact that she behaves well and conducts herself properly in class.  In that sense, there can be no doubt but that she is a model student. 

124. However, her failure to obtain similar good grades when it came to examination speaks for itself in that when she has to rely on her own memory or initiative and not be able to resort to her books or notes, she seemingly does not perform as well when compared to her homework and assignments. 

125. It is therefore in that sense that I categorize her as not being a brilliant student, in other words not being the cream of the crop. 

126. The effect of that for the purpose of this case must be that although I have made the finding that the plaintiff would likely have gotten a university education, had there been no accident, it is by no means a foregone conclusion that she would have been good enough academically to have entered medical school.  In a place like Hong Kong, it would not take very much to conclude that it is only the cream of the students generally who would be able to fight their way into medical school here.  Even for those who do succeed in getting into reading medicine, there is no guarantee that they will succeed in completing medical school or qualifying ultimately to become a medical practitioner. 

127. Moreover, I have no difficulty in making the finding, should it be necessary, that the poor performance of the plaintiff in failing to maintain her place in the Elite class in both Form 2 and Form 3 were due to the disruption caused to her studies by the accident.  These disruptions took the form of the plaintiff having to miss attending classes in the remainder of the second term of her Form 1A after the accident, her having to leave school early to attend physiotherapy and follow up treatments at the hospital when she was in both Form 2F and Form 3D as well as having to miss school attendances due to her operations in March 2007 and March 2008. 

128. I also find that it was not unreasonable of the plaintiff to have rejected the suggestion of repeating her Form 1.  Albeit, with hindsight, that might have been the wise move in so far as her career and her future were concerned, however, given that in a place such as Hong Kong the kind of stigma as well as the shame that is usually associated with a “repeater” and also given the fact that the plaintiff is a person who is highly sensitive to such a stigma, and also being such a determined person, I am unable to say that it was unreasonable for the plaintiff to have taken the course that she did. 

PAIN SUFFERING AND LOSS OF AMENITIES

129. In this respect, in so far as pain and suffering are concerned, the injuries, treatment and consequent disabilities therefrom have already been set out above. 

130. It is to be noted that although the plaintiff was unconscious for some 10 days after the accident, likely due to her severe head injuries, it would appear from the evidence of Dr Woo, the joint neurologist, that the plaintiff has made a remarkable recovery neurologically. 

131. Her remaining disability appears to be related to her right leg injury, in particular the contracture of her toes, as well as the cosmetic aspects from the scars left behind. 

132. As for her loss of amenities, I take into account the fact that before the accident, the plaintiff was an active and very sports-oriented person.  The evidence from Mr Cheung, the vice principal of the HKTA school was that the plaintiff had won the bronze medal in the Stamina Reward Programme several times when she was in primary school as well as when she was at the HKTA school. 

133. There is also evidence from the plaintiff herself that she enjoyed playing rugby at school before the accident, something which she could no longer do after the accident due to her leg injuries.  In the same way, she had to sit out all her physical education classes in school after the accident and it was only in the last one or two years that she was able to take a limited part in the physical education classes in school. 

134. Another aspect of her loss of amenities would be her piano playing.  Not only has the accident disrupted and delayed her piano lessons as well as her taking piano grading examinations, it has also in a more permanent way affected her in reaching a higher level of achievements in piano playing due to the fact that she can no longer use her right foot as effectively on the piano pedal as would otherwise be the case. 

135. For someone as tender in age as this plaintiff, such loss of amenities translate to depriving this plaintiff of the kind of enjoyment in life in more or less a permanent way and for which it would be difficult to find a substitute or replacement for. 

136. One further aspect of loss of amenities comes in the form of the accident having adversely affected the academic performance of the plaintiff. 

137. Whilst it is true that that will also be the basis of the claim for loss of future earnings (which will be dealt with later in this judgment), but in so far as loss of amenities is concerned, I can and do take note of the fact that firstly, the accident has resulted in the plaintiff missing out on the Elite class in both Form 2 and Form 3 and which has caused tremendous disappointment and unhappiness to her in that she, being the conscientious and dedicated student that she is, has been thrown into a class with other students who do not share the same kind of motivation to learn.  Secondly, the plaintiff will, for life, be left with the feeling of knowing that she could have attained a better academic achievements given her own ability had it not been for those disruptions to her studies caused by the accident and its aftermath.  In other words, she will not have the satisfaction of knowing that she has been able to achieve the best results academically commensurate with her own ability. 

138. A still further aspect of loss of amenities which has to be taken into account concerns the very unsightly scars left on the plaintiff’s right leg.  Being a girl of young and impressionable age, these scars have already caused her untold embarrassment which can be seen by the fact that this plaintiff would insert sheets of A4 size paper inside her stockings so as to make the indent less noticeable to others.  Furthermore these scars may well affect the plaintiff’s prospects of finding a partner in life or getting married. 

139. Given all the above circumstances, I assess the reasonable and fair amount to be awarded under this head of damage to be $750,000. 

SPECIAL DAMAGES

140. Under this head, there is agreement between the parties that :

(a)  travelling expenses are agreed at $48,570.00;

(b) medical expenses are agreed at $24,643.80;

(c) cost of the fracture healing system agreed at $9,800; and

(d) tuition fees incurred are agreed at $17,908.

141. Agreement however cannot be reached in respect of tonic food, cost of the second-hand car and cost of care and attention of plaintiff’s mother.  These three items in dispute will have to be dealt with individually.

TONIC FOOD

142. Plaintiff’s claim is for $21,064 as being the amount spent on tonic food. 

143. In the Answer to the Revised Statement of Damages, the defendant admits $15,000 for tonic food. 

144. However, in closing submission, the defendant was prepared to concede an amount of $18,032 being the median of the two above amounts pleaded by the parties in their respective pleadings. 

145. The evidence from the plaintiff was to the effect that the special food was prepared for her and served at dinner time.  Although the rest of the family did take part in eating some of the special tonic food, it was specially prepared for the plaintiff and she did consume most of it. 

146. The figure claimed by the plaintiff as being the amount spent on tonic food is not disputed by the defendant. 

147. What is disputed by the defendant can only be the reasonableness of the amount claimed.  However, in so far as reasonableness goes, I cannot see any real difference between what the defendant is prepared to offer and what is claimed by the plaintiff. 

148. Accordingly, I am prepared to accede to the amount claimed by the plaintiff as being reasonable and will assess the amount under this head at $21,064.  

COST OF SECOND HAND CAR

149. The plaintiff claims the amount of $116,200 being the cost of a second-hand car (a 2002 Honda Jazz) which was purchased as a family car in December 2006. 

150. That car, after its purchase, was driven by the father of the plaintiff who had a driving license even before the car was purchased. 

151. After the car was purchased, at times the father of the plaintiff would drive the plaintiff, accompanied by her mother, to the hospital either for follow up or for physiotherapy treatment.  At other times, when the father was not free to do so, the plaintiff and her mother would travel by taxi particularly during the times when the plaintiff was still dependant on crutches. 

152. There were other times when the father would use the car and take the family out to the countryside for a family picnic, especially during the time when the plaintiff did not have full mobility and required crutches to move about, since it was felt by the plaintiff’s parents that the plaintiff would feel happier to be taken out of the house. 

153. There was also evidence that at other times, the father might drive the car off to work. 

154. There can be no denial that there was no medical basis to say that a car was reasonably necessary for the plaintiff due to her injuries sustained in the accident.  Moreover the plaintiff’s lack of mobility when dependent on crutches was only temporary and not permanent. 

155. While there can be no doubt that it would be more convenient for the plaintiff to be driven by a family car to follow up treatment or for physiotherapy, convenience is not, per se, the test for whether an item of special damage claimed was or was not reasonably necessary given all the circumstances, and whether the defendant should have to bear that item of expense incurred. 

156. Given that the car was purchased in December 2006 and the medical evidence from Dr Lam showed that the plaintiff was able to walk unaided by May 2007, one would have expected that although the car was used at times during that six months for the benefit of the plaintiff, there could have been other less expensive alternatives such as the taking of taxis or even the rental of a car for the odd day for family outing. 

157. Therefore given that those six months may well have been the time when the family car was of greatest benefit to assist the plaintiff in her recovery from her injuries, I am prepared to allow only $24,000 under this head on the basis that without a family car, it would have been reasonable that a further $4,000 be spent for each of those six months by way of enhanced traveling which the family car was able to achieve. 

COST OF CARE AND ATTENTION OF MOTHER

158. Under this head of damage, the plaintiff claims $3,000 per month for a total of 3 years in respect of the extra care and attention which her mother had to put up in taking care of the plaintiff after the accident. 

159. The defendant does not dispute the rate of $3,000 per month.  What is disputed is the fact that such a rate was used for the entirety of the 3 years. 

160. The defendant suggests that during the hospitalization of the plaintiff totaling some 2.5 months, the claim under this head be computed at $3,000 per month.  For the remaining 33.5 months, the defendant submits that a rate of only $1,500 should be used. 

161. In my view, that suggestion of the defendant loses sight of the fact that the extra care and attention of the mother was not only during the plaintiff’s hospitalization period, but also after the plaintiff was discharged home and while she was still on wheelchair and/or using crutches. 

162. There was evidence from the mother that during such period when the plaintiff was quite immobile on her own, the mother had to help her to go to the toilet and to bathe.  After the plaintiff had regained some of her mobility herself, the mother would still have to take care of the plaintiff as a result of the accident, but on a less onerous scale. 

163. I am therefore of the view that the line to be drawn should be when the plaintiff was able to dispense with her crutches which was some 15 months after the accident, in May 2007. 

164. Accordingly, a reasonable amount of damages under this head would be :

($3,000 x 15 months) + ($1,500 x 21 months) which gives $76,500. 

SUM TOTAL OF SPECIAL DAMAGES

165. The total of all special damages above-stated comes to $222,485.80. 

FUTURE LOSS OF EARNINGS/EARNINGS CAPACITY

166. On the facts which have been found above, and whilst I do not dispute that the plaintiff had always wished to become a doctor by profession, that lost chance of the plaintiff to becoming a doctor due to the accident must be viewed against the facts as found. 

167. At present, the plaintiff will, in the next few months, be sitting for her public examinations in the Hong Kong School Certificate Examination.  How she performs in that examination remains to be seen, but those results will likely be the first step to determining whether the plaintiff will be good enough to secure for herself a place in one of the universities here. 

168. From the plaintiff’s own evidence, she said in evidence that if she could not become a doctor, she would have wanted to become a nurse, a social worker or a teacher, in that order of priorities.  However, due to the fact that the plaintiff could not get herself into the science stream in her secondary school allocation, it would appear that the basic qualifications needed for her to become a nurse is no longer attainable by her.  The plaintiff is still on course to becoming a social worker or a teacher, but that may still greatly depend on whether she can make it into university. 

169. At the moment there are far too many imponderables for the court to be able to say with any degree of certainty what the plaintiff would end up as by way of employment after her schooling, or whether she would be good enough to enter university. 

170. However, what is quite certain is the fact that her academic achievements and results have been sufficiently and adversly affected by the accident to the extent as already described by Mr Cheung, the vice principal of the HKTA school, in his evidence and whose evidence I do accept.  In that respect I have little doubt that the chances of the plaintiff in securing for herself a place at a university has been greatly jeopardized by the accident. 

171. Given all the imponderables in this case, it is impossible for any court to calculate loss of future earnings using the multiplier/multiplicand method when there is little certainty as to what kind of employment the plaintiff will end up in. 

172. In the circumstances I feel that I am relegated to assessing loss of future earnings by using a lump sum method. 

173. Given all the circumstances already referred to above, and on the findings made above, I will assess loss of future earnings at a lump sum of $1,800,000 which I consider to be appropriate compensation for the plaintiff for her lost chances due to the accident. 

174. When that lump sum amount is cross-checked against a multiplier of 20 it gives a monthly loss of $7,500 which, in my view, would not be excessive given the setbacks which the plaintiff had experienced due to the accident.  

175. It should also be noted that the lump sum assessed in the present case is just below the lump sum of $2 million assessed by Deputy High Court Judge Carlson in the case of Chu Man Ting v Kwan Kam Kei [2003] 1 HKLRD 404 in very similar circumstances to the present case except that the plaintiff in that case suffered slightly more intellectual and psychological disability which would have affected her loss of future earnings, but not so the present plaintiff in the present case. 

FUTURE MEDICAL EXPENSES

176. Future medical expenses are also agreed by the parties at $318,000 and the same will be awarded as agreed. 

INTERESTS

177. Interests on general damages for PSLA will be awarded at 2% from the date of the Writ. 

178. Interests on all special damages will be awarded at half judgment rate from the date of the accident.  The calculation of interests on special damages also takes into account of the interim payment of $150,000 ordered to be paid within 14 days from 8 March 2008. 

SUMMARY OF ASSESSMENT

179.

PSLA	$750,000.00
Total Special damages	222,485.80
Future Loss of Earnings/Earnings Capacity	1,800,000.00
Future medical expenses	318,000.00
Interests on PSLA	40,000.00
Interests on specials	24,710.00
Sub-total :	$3,155,195.80

180. To take account of the agreed contributory negligence, 75% of the total sum assessed comes to $2,366,396.85. 

181. From this figure will need to be deducted the $150,000 already paid by the defendant by way of interim payment. 

182. The final figure therefore comes to $2,216,396.85. 

CONCLUSION

183. Accordingly, there will be judgment to the plaintiff in the sum of $2,216,396.85 to be paid into court by the defendant within 21 days to be held by the court pending application by the plaintiff for directions as to payment out since the plaintiff is a minor. 

COSTS

184. There will be a costs order nisi that the defendant do pay the plaintiff’s costs of the assessment including the costs of the further application for payment out to be taxed if not agreed. 

185. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.