LO CHEUK HUNG v. LO WING SHUN AND ANOTHER

Action No. 5115 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. On 7th January 1982, at about 6.10 p.m., the Plaintiff while crossing King's Road was knocked down by a goods vehicle owned by the 2nd Defendant and driven by the 1st Defendant. He sustained serious injuries and claims substantial damages. The Plaintiff says that on that evening he was on his way home with one of his colleagues Chik Kai-yan. They walked along King's Road until they got to its junction with Oil Street. When the Plaintiff reached the pedestrian crossing across King's Road, he found the pedestrian light was red. He paused, and when it changed to green started to cross on the pedestrian crossing. He reached the tramlines platform, carried on and was hit by something and lost consciousness. The next thing he remembers is waking up in hospital.

2. Before he was hit, he was walking in front and Chik was walking behind him. There were some pedestrians crossing from the other side but they had not yet reached him. The weather was fine. The road was dry and clean. The traffic was normal, vehicles did sot have their lights on.

3. He was sure the pedestrian lights had changed from red to green, and that the traffic had stopped before he started to cross. He said he did not see whether the traffic lights controlling vehicular traffic had turned red when the pedestrian lights turned green. The traffic stopped, of that he was sure and therefore he assumed that the traffic lights had changed to red.

4. Chik Kai-yan confirmed the Plaintiff's evidence. The traffic at the junction of King's Road and Oil Street was not too congested. They stood at what he termed the mouth of the pedestrian crossing waiting to cross. There was traffic that was why he did not cross. After a little while the vehicles started to slow down and to stop. He and the Plaintiff started to cross and when he stepped on to the pedestrian crossing he looked at the pedestrian light and saw it showing a green figure. Initially he had paid attention only to the traffic but when he stepped on to the pedestrian crossing he was in no doubt that he looked at the pedestrian light and that it was green.

5. There were three lanes on King's Road. The vehicles in the lane nearest the kerb had already stopped. He could see the vehicles is the second lane for some distance; they were slowing down and beginning to stop. The Plaintiff was walking a little to the front of him and a little faster than he was. There was a safety island on the pedestrian crossing immediately before the tram lines. It had a sign post on it. The Plaintiff was to the left of him and traffic approached from the right. When he got to the sign post he took a look to the right and noticed a goods vehicle about to reach him. He stopped at once. The vehicle brushed past and he heard a bang. He looked that way and saw the Plaintiff rolling over into the yellow box to the left of the pedestrian crossing. He went over to see what had happened to the Plaintiff and found him bleeding.

6. Immediately after the bang he looked up and noticed that the pedestrian light was green. The road was dry. It was not too bright. The sun was setting. Vehicles did not have their lights on. Road conditions were normal and not particularly congested.

7. No other pedestrians crossed from his side, but some, very approximately three or four, were crossing from the other side. They had not yet reached the point of the accident when it occurred.

8. The 2nd Defendant was not present at the accident. The 1st Defendant says he was on his way back after delivering some goods. He was travelling from east to west in King's Road. When he reached the junction with Oil Street, traffic was rather congested. It was getting dark although the light was not very dim. He was driving in the third lane from the kerb, the lane with the tram lines. The first and second lanes were a bit more congested.

9. His speed was about 17 to 18 m.p.h. in third gear. There were 2 traffic light posts at the junction with Oil Street. After he passed the first light post he spotted 8 to 10 persons stationary but about to cross the road. The traffic light was green so he carried on. On the second light post there was a large traffic sign consisting of a disc with an arrow on it. A person emerged from behind the post. The 2nd Defendant did not expect him to emerge. He was very close. The 2nd Defendant tried to stop, even so he hit the person. He alighted and found him lying in the yellow box. His view is that the injured person had not seen the traffic light and that it was that person's fault in emerging without making sure about the light.

10. Under cross-examination he said he had seen that the light was green from a long way off. When he was 15 feet from it, it was still green. When he first saw the Plaintiff, the latter was 10 feet or less from him. The traffic sign was obscuring the upper part of his body. When he emerged and the 2nd Defendant saw his entire body he was only 4 or 5 feet away.

11. The 2nd Defendant says there was a van in front of him and that he kept about 4 feet behind it. When he first saw the Plaintiff, the latter was already past the light post and behind the van.

12. There was therefore a clear conflict between the evidence of the Plaintiff and Chik Kai-yan, on the one hand and that of the 2nd Defendant on the other. The Plaintiff and Chik have given a consistent version of the events throughout. Both impressed me as honest witnesses and neither tried to improve his evidence to exaggerate the injuries sustained by the Plaintiff. On the other hand the 2nd Defendant was vague and unconvincing. He had never mentioned the van or the 8 to 10 pedestrians before. It would have been suicidical for Plaintiff to have allowed the van to pass and then to attempt to cross through the 4 foot gap between it and the 2nd Defendant, which is what the 2nd Defendant would have me believe. Also he contradicted himself as to whether or not he slowed down from his initial speed of 17 to 18 m.p.h. In more than one respect his evidence differed from that he gave the magistrate's court when he was prosecuted in respect of the accident, and from his statement to the police. I am unable to accept his evidence. I am satisfied the Plaintiff and the witness Chik Kai-yan are telling the truth.

13. Quite apart from that the 1st Defendant was in respect of the accident, convicted by the magistrate's court of dangerous driving and the 2nd Defendant was also convicted as the registered owner of the vehicle which was found to have defective hand brakes and a worn tyre. The onus is therefore shifted on to them to disprove negligence. They have not discharged that onus.

14. As to contributory negligence on the part of the Plaintiff, there is no evidence whatever of this. He was acting with reasonable care and was entirely within his rights in crossing with the pedestrian lights in his favour.

15. I find that the "accident" was caused by the negligence of the 1st Defendant who was acting within the scope of his employment as the 2nd Defendant's driver. I find that there was no contributory negligence on the part of the Plaintiff.

16. I proceed now to the question of damages. The Plaintiff sustained the following injuries:

17. The Plaintiff was taken to Tang Shiu Kin Hospital treated there and the same evening removed to Queen Mary Hospital. He suffered post-traumatic amnesia for about a month. He also exhibited frontal lobe symptoms in consequence of which he was taken to St. Paul's Hospital for a brain scan while suffering from post-traumatic amnesia, and again about a month later. He was found to have 2 hygroma i.e. accumulation of bloody fluid on the surface of the brain. These were drained by burr holes on either side of the skull and the Plaintiff made a rapid recovery. Altogether he was in hospital for 42 days, the last week or so in Grantham Hospital.

18. After his discharge from hospital he reported to the Sai Ying Pun Orthopaedic & Neurosurgical Departments, and referred by them to the United Christian Hospital Psychiatric Department for an unspecified psychiatric disorder. Because of difficulty in walking and fear of going out he did not report to the United Christian Hospital till August.

19. He suffered severe headache, initially once or twice a week, and lost interest in his surroundings for one or two minutes. In his report of 3rd January 1983 Dr. Wedderburn thought this was post-traumatic epilepsy. He recommended a comprehensive report from the Psychiatric Unit. The Plaintiff testified that he now seldom gets headaches, perhaps once every 10 days, and he has got used to it. He also realises that he now loses his temper easily.

20. The Plaintiff's sister Lo Ying-fong confirmed the Plaintiff's mental deterioration. He now loses his temper and for instance shouts at his father. His memory is not as good as before. He complains of headaches. He has become very untidy and uncaring about his dress. He seems now not to notice the taste of food and is also now inclined to eat too much. His active social life has come to a virtual halt; from being out most nights and week-ends he now does not go out at all except to work and for treatments.

21. At the Psychiatric Unit of the United Christian Hospital, the Plaintiff was examined by Miss Betty Kwong the clinical psychologist. She first saw him in October 1982, February and March 1983 and December 1984. She secured background information from the Plaintiff, from his sister, and from his previous employer. Taking that into account, in particular the Plaintiff's results in the School Certificate Examination, his driving licence and the fact that he took a two year evening course in mechanical engineering at the Polytechnic, she concluded that the Plaintiff's intellectual functioning was within the average range prior to the accident. She then subjected the Plaintiff to a series of standard tests, which she described, and came to the conclusion that he had suffered a total loss of 37% of intellectual functioning. In particular there was evidence of deterioration of memory and intelligence. She did not consider that the Plaintiff was faking his condition or malingering. That was in March 1983.

22. She examined the Plaintiff again in December 1984, almost 2 years later. She carried out the same tests again and found a significant improvement. The Plaintiff was less irritable and showed better concentration. He still took some time to recall matters. This was noticeable during the hearing when the Plaintiff paused for anything up to 20 seconds and more when he had to recall matters from the past. Miss Kwong concluded that her original assessment of loss of intellectual functioning i.e. 37% had diminished to a loss of only 14%. But she was still sure that the Plaintiff remained below averages The Plaintiff's memory was that of a mental defective, and his overall intelligence in the low average range. She could not say whether there would be further improvement or not, there might be no further improvement at all. In her view the traffic accident was the most likely cause of the loss of intellectual functioning.

23. As the request of the Director of Legal Aid, Dr. Edmund Cheung reviewed all the medical evidence and himself examined the Plaintiff on 10 December 1984. He submitted a report on 17 December 1984 the material contents of which are as follows: -

"Mr. Lo was knocked down by a lorry on 7th Jan., 1982. He was found to be drowsy. There were signs of head injury. He had penetrating injury to the abdomen and fracture of the bones of the right forearm.

4 weeks after the injury, he was found to have bloddy fluid accumulated on the surface of the brain. This was drained by operation of "Burr holes". Dr. C.P. Yu expected Mr. Lo to have a full recovery from his head injury.

While he was recuperating in Grantham Hospital, he was observed to have behavioral abnormality with irrelevant speech.

In March 1983, 1 year after the injury, he was assessed by a clinical pathologist and she concluded that Mr. Lo had 37% loss of intellectual functioning.

Dr. Wedderburn assessed him in January 1983. He remarked that the fracture of the right ulna bone had healed with very good function. Dr. Wedderburn noted some abnormal neurological signs, and he suggest neurosurgical assessment to the degree of permanent brain dys. function.

 

THE INTERVIEW (10th December 1984)

Mr. Lo Cheuk-hung attended the interview by himself. He says that he is now living with his parents. He has been working as a daily rate working with a Gammon Cement-mixing company since July 1984. His job involves recording and keeping files. There is no special knowledge necessary. He gave a vague account of his injury and his treatment. He has regain normal use of his right arm, but his left leg is still stiff, especially when he walks down steps. He has not attended neurosurgical clinics or receiving any treatment for some time.

He says that he is not as healthy as before. He gets tired easily but he has not taken sick leave at his present job. He suffered from severe headache in the early stages of his recovery, but now the headache comes once or twice a month. No drug treatment is taken. He has no further attack of unconsciousness to suggest epileptic attacks. When asked, he admitted having episodes of mental confusion during which the mind went blank, and for 10 minutes or so, he did not know what to do.

 

EXAMINATION

Mr. Lo was alert looking. He was well behaved, he answered questions quickly but the facts given were vague.

His sense of smell was normal.

His vision was normal.

His hearing was normal.

Muscle tone of his arms and legs were within normal limits and equal on both sides.

Tendon reflexes were normal.

Plantar reflexes were normal.

 

INVESTIGATION:

Brain Scan (Computerized Tomography of Brain) 14th December 1984.

No evidence of accumulation of fluid or brain damage is seen.

Brain Scan is within normal limits.

 

COMMENT

Mr. Lo sustained serious injuries, at the traffic accident on 7th January 1982.

The injuries to his abdomen has healed without residual effect.

The fracture of his right forearm has healed with normal function of the arm. The metal plate is still left inside his arm.

The injury to his brain seems to be more serious. For a time he was confused. The psychological test done 1 year after the last brain operation showed some residual disability. Mr. Lo is now taking on a regular job. It appears that he is contented in working in a less demanding job than his previous one.

At the examination on 10th December, I could not find any definite abnormal neurological sign to confirm residual brain damage, and the brain scan was also normal.

In view of his head injury and the psychologists report, I took longer time at the interview, trying to have a better impression of his mental ability. I can conclude that Mr. Lo is a pleasant individual, but he is not as bright, as I would expect him to be, knowing his past educational backgrounds and working experience.

Two observations/informations seem to indicate he has some mental change and brain damage.

 

 

These two observations are not conclusive, and it will be necessary to have confirmation of these "Confusion episodes", and his "Euphoric and contented" mental state from his friends and employer.

 

CONCLUSION

It is difficult to make a definite conclusion and assessment. Taking into consideration the reports and my observations, I think Mr. Lo has residual mental and intelligence disability from injuries sustained on 7th January 1982 and his earning capacity is expected to be reduced by 20%."

 

24. In his evidence Dr. Edmund Cheung clarifed some of the contents of his report. He gave an example of what he meant where the certificate stated that the Plaintiff "answered questions quickly but the answers were vague". With reference to his headaches, when asked how, where, and when, the Plaintiff was not able to give precise answers or descrip-tions but did not hesitate.

25. With reference to the brain scan, Dr. Cheung said that notwithstanding that it did not reveal any further accumulation of fluid or brain damage that was in no way inconsistent with residual disability. There would not necessarily be evidence on such a scan.

26. With reference to the Plaintiff being contented in a less demanding job, Dr. Cheung obtained this information from the Plaintiff.

27. Dr. Cheung confirmed that frontal and parietal lobe damage often resulted in intellectual behaviour including loss of temper. He did not consider the Plaintiff was faking his symptoms.

28. Dr. Cheung added that a 14% mental deficit could translate itself into a 20% loss of earning capacity.

29. What gave me most difficulty about Dr. Cheung's report was his view that the Plaintiff's earning capacity is expected to be reduced by 20%. In his evidence he explained that this was based on a combination of factors including:

He evaluated these factors in the light of personal experience. He considered that the Plaintiff could have earned double what he was earning when he examined him i.e. $200 per day instead of $100. Cross-examined by the 2nd Defendant on the latter, Dr. Cheung conceded that it was a judgment not based on medical knowledge and experience and that he would be happy to accept any alternative assessment of earnings before the Plaintiff's accident.

30. Before leaving the medical evidence I should mention that Dr. Wedderburn examined the Plaintiff on 4 January 1985, immediately before the hearing commenced. He gave evidence and confirmed that a fear of going out was quite common, and that loss of temper not uncommon after brain damage. While conceding that that was a matter for judicial consideration, he also emphasised that a minor degree of mental impairment could have a severe effect on the earning capacity of persons in certain occupations. He understood that the former work of the Plaintiff involved export and import. The loss of memory, and of initiative and judgment could mean that such former work could not be resumed.

31. The medical evidence in this case has been generally consistent and there is no conflict between the several sources. I accept it except as regards loss of earning capacity to which I shall give further consideration.

32. Proceeding then to specific heads of damages I propose to commence with pain, suffering and loss of amenities.

33. In HUNG PEI-NAM v CHEUG SAI-KIT (Martin & Rhodes p.96) the Plaintiff, a 20-year old man, was in June 1976 injured in a traffic accident. He suffered a 2 inch haematoma with lacerations to the skull, face, trunk, arms and right leg. He was unconscious on admission and suffered amnesia on regaining consciousness. He was in hospital for 5 days Medical evidence was given that the Plaintiff suffered a severe intellectual and emotional loss as a result of brain damage. He had become withdrawn, could not socialise with other people, was unable to communicate properly, could not concentrate and became irritable and tense as a result. The registrar considered that the severity and permanence of these abnormalities called for a substantial award under loss of amenities. He noted that awards had ranged from $50,000 to $90,000 and awarded $90,000. The loss of amenity in that case was clearly more severe than in this.

34. In CHO SUK-YING v YUNG MUK-HOI (Martin & Rhodes p.110) the Plaintiff, a 17-year-old female, in September 1977 was injured in a traffic accident. She suffered a 2½ inch wound on her forehead, a swollen right eyelid, a 1½ inch laceration over the upper lip, a fracture of the left radius, the loss of 4 lower teeth, and cerebral contusion. She spent one month in hospital and 3 months receiving daily out-patient treatment. There was some scarring of the face and right arm but it was not serious. She suffered brain damage which caused partial paralysis of the right arm and right leg, memory disturbance, and a slight risk of epilepsy. A psychiatrist placed her intellectual deficit at 20%. Her loss of complex, integrated cerebral function affected her comprehension, and was assessed as a 5% impairment of the whole woman. $75,000 was awarded. Again the loss of amenity in that case very considerably exceeds the Plaintiff's.

35. On the Lee Ting-lam scale (1980 HKLR 657) the Plaintiff's disability would in my view be towards the bottom of the lowest  category - serious injury, in which the general range of awards was recorded at $60,000 to $80,000. To take that range up to October 1983, it should be increased by at least 50% (Chan Wai Tong v Li Ping Sum - Privy Council Appeal No. 22 of 1984). Placing the Plaintiff's disability towards the bottom of that range, where 1 think it should be, and allowing 60% for, post-1980 inflation (an additional 10%) 1 consider that $100,000 should be awarded for pain, suffering and loss of amenities.

36. Next, proceeding to the loss of future earnings, the Plaintiff in the particulars given in his statement of claim recorded his former average monthly income as $3,090.25 from the Hong Kong Automatic Vending Company Ltd. and $350 from his work as a self-employed salesman. In his evidence he said his average monthly income from the Hong Kong Automatic Vending Co. was $3,000 and "a few hundred dollars, about $500 a month" from his own business Maxflow. The Hong Kong Automatic Vending Co. certified for the Director of Legal Aid the Plaintiff's gross monthly earnings at $2,200 plus overtime at,1½ times his ordinary rate. I accept his evidence that he was earning about $3,000 a month from the Hong Kong Automatic Vending Co. As to his monthly profit from his private sales through Maxflow, he did not explain the escalation of his claim from $350 to $500 a month. The profit and loss account of Maxflow contained in the Agreed Bundle of documents show the profit at $355.25 per month, and I find that was the average rate of monthly profit made by him. This produces a monthly total of $3,355.

37. According to the Plaintiff he is now earning approximately $2,990 per month making bricks and concrete blocks, on the basis of a 6½ day week, 3 hours overtime every day and one day off every fortnight. On a bare mathematical basis that would represent a drop of $365 per month.

38. As to whether his former income could be expected to increase, the Commissioner for Census and Statistics' figures for the average monthly wage rate of electronic engineering male technicians engaged in the electronics industry, admitted by consent, are -

39. It seems clear from these figures that the Plaintiff was earning substantially more than the going rate. However he had held his job with the Hong Kong Automatic Vending Co. for only 3 months, as a mechanic repairing vending machines. Before that he was a production manager for a cosmetic company for half a year. And before that a laboratory assistant testing bricks for about a year. As a laboratory assistant he earned about $1,300 a month, and as production manager about $2,500 a month.

40. There was no evidence of the prospects for Maxflow which had only been going for a few months. Finally in his former employment the Plaintiff did not have to spend virtually all his time working as he now has to do to earn his present average monthly wage of $2,990 In all these circumstances I accept the submission made on behalf of the Plaintiff that his monthly loss of earnings should be taken to be $700. Coincidentally that is very close to the 20% loss of earning capacity estimated by Dr. Edmund Cheung.

41. The appropriate multiplier should I think be 14, similar to that in Chan Chi-nun v Cheung Wai-chung (1984 HKLR 286) where the Plaintiff was a 30-year-old male. Applying that multiplier of 14 to the multiplicand of $700 produces a sum of $117,600.

42. I now proceed to the special damages. In terms of the amounts claimed, these can conveniently be set out as follows:-

43. As to loss of wages, the Plaintiff was in hospital for 42 days. Thereafter he found it very difficult to get a job. Eventually through the Social Welfare Department he got casual work in December at a battery factory, filling powder into cases, at $50 per day. After a month of that, through the influence of a friend, he got a job as a messenger in an office at $1,700 per month. This was not extended beyond the 3 months probationary period. A period of unemployment followed for which I do not think the Plaintiff could be blamed in any way. In June 1984 he commenced his present employment making bricks and concrete cubes.

44. So the Plaintiff's earnings from 7 January 1982 to 30 June 1984

were:

During that period he would have earned $3,000 per month for 29 months i.e. $87,000, plus $355 per month profit from Maxflow i.e. $10,295. Deducting his earnings of $6,250 for the period, produces the sum of $91,045, which I find was the actual loss of wages.

45. As to nourishing food a reasonable amount for which I am satisfied is now normally allowed, Lo Ying-fong, the Plaintiff's sister testified that the Plaintiff was provided with nourishing soups every other day for about 2 months and 2 or 3 times a week for about another month. The reduced sum of $1,000 would thus work out at under $25 per day, which I think not unreasonable.

46. Receipts were produced for the CT Scans and in-patient and out-patient medical expenses and fees. These must clearly be allowed.

47. The Plaintiff's sister also testified that one or more of the Plaintiff's family visited him every day during the 42 days he was in hospital, sometimes more than once a day, and that a nurse told them the doctor wished them to go. Sometimes taxis had to be used and sometimes buses. Searing in mind the route and distance, I think this amount of $1,000 is also reasonable.

48. Accordingly the award I would make for the Plaintiff is as follows:

49. There will be interest on the general damages for pain, suffering and loss of amenities at the rate of 2% from the date of service of the writ until judgment, no interest on the damages for loss of future earning capacity, and interest on the special damages at the rate of 7% from the date of the accident to judgment. Costs to the Plaintiff, to be taxed in accordance with the Legal Aid Regulations.

50. The Defendants' insurers are now in the process of being wound up, most unfortunately for them, particularly the second Defendant who very properly insured himself. That is also likely to mean that the Plaintiff will recover only a fraction of the damages awarded. The Director of Legal Aid may therefore consider that he ought not to enforce his statutory charge on the damages recovered at all or only in part.