CHEUNG WOO CHI v. KOT MAN TAI AND ANOTHER

HCPI 169/2000 (No. 2)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 169 OF 2000

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J U D G M E N T

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1. This 76 year old lady suffered injuries when the Defendants' vehicle reversed into her whilst she was sweeping outside the Temple where she worshipped, on 10 January 1998. Judgment was entered against the Defendants on the 21 March 2001 under Order 18 Rule 19, the defence served having been adjudged to be an abuse of the process of the Court; it also disclosed no reasonable defence and was frivolous [see Cheung Woo Chi v Kot Man Tai HCPI 169/2000 (28 March 2001)],

Pain and Suffering and Loss of Amenity.

2. She suffered an unpleasant and unsightly degloving injury to her right leg, the nature of which is illustrated by the photographs. She was detained in hospital for 34 days. Skin grafts were carried out, the donor site being the upper right thigh. She is left with noticeable scaring particularly from a very deep 36 centimetre long laceration. There is also a substantial degree of stiffening of the right lower limb with pain radiating from her hip to her foot. She walks with a limp and uses an umbrella for support. Having seen her in court, although she did not give evidence, she seems very different from the elderly lady, then 74 years of age, who was agile enough to be sweeping the area in front of the Yuk Dai Temple. She was listless, almost unaware of her surroundings and clearly needed physical support when she was sitting in the seat in the public gallery.

3. The orthopaedic picture is fully covered by the reports of Dr Brian Chan and Dr Lau Hoi Kuen which are in essential agreement.

4. It is not surprising that the experience of being run down by the Defendant's vehicle and the crippling effect of the injuries has caused her anxiety and depression. There are features suggestive of dementia having developed since the accident.

5. Dr Peter Ho examined her in May 1999. He was satisfied that her mental state was brought about by the accident. Some psychiatric treatment, preferably in the private sector, was desirable for a few months. She also need domestic help as support at home.

6. Dr Chung See-yuen also concluded dementia had set in but labelled it 'pseudo-dementia'. He saw her in June 2000. Her intellectual function was impaired. In categorising her mental problems, the first he identifies is an adjustment disorder with depressive mood. It is directly caused by the trauma of the accident and the resultant physical problems. It is, he says, "an understandable psychological reaction". The second, the dementia, he says, is not related to the accident. I confess I find a certain inconsistency in his evaluation. He accepts categorically that her intellectual function was impaired and gives examples of this which are significant indicia of intellectual impairment. Then, when discussing dementia, he indicates that there are no examples of cognitive defects; dementia he says, is a syndrome characterised by multiple impairments in cognitive functions such as general intelligence, learning and memory, language problem solving, orientation, perception, all matters which he accepted were evidenced by her.

7. In a later report he repeats much of his first report and his third report, by way of clarification of pseudo-dementia, again seems to set out a contradiction. Pseudo-dementia is a condition seen in depressed old aged people. The primary problem is depression. Remove the depression and the pseudo-dementia goes. Since he agrees that the adjustment disorder with depressive mood was caused by the accident, so must the pseudo-dementia have been. We seem to have gone round in circles. He states positively "[she] has displayed features of dementia since the accident for around 3 years".

8. The labels applied are of no consequence in terms of causation. I find that her mental state, whatever terms are selected for it, was a direct result of the accident, and entirely predictably so.

9. There is negligible disagreement between Dr Ho and Dr Chung in respect of the extent and cost of treatment whether in the public or private sector.

10. The assessments of impairment of the whole person under the American Medical Association Guidelines are irrelevant to an evaluation of common law damages.

11. General Damages will be $500,000.00

Special Damages

12. The loss of earnings of the Plaintiff's son and daughter-in-law were agreed in the course of the hearing in the sums of $13,574.00 and $8,910.00 respectively.

13. The medical expenses have also been agreed at $7,356.00, and the travelling expenses of the Plaintiff at $900.00.

14. The travelling expenses of son and daughter-in-law are also agreed at $4,400.00.

15. Nourishing food is also a contentious item. It is claimed at $10,830.00. An examination of the receipts for the items bought by the son show that the items are more accurately described as herbal remedies - they are Dearhorn and ginseng (including Korean ginseng). The latter is regarded as a having good therapeutic value world-wide. Given this lady's age, cultural tradition and need for support following her painful and unhappy experience, I am prepared to allow it in full in the circumstances of this case. It does not require a prescription to support its efficacy whether it be part of a cultural tradition or a modern acceptance of such remedies.

16. Finally under this head of damages the figure for damaged clothing and shoes is agreed at $300.00.

Future medical Expenses

17. Dr Ho and Dr Chung are agreed that she needs psychiatric treatment. Dr Ho says private treatment is preferable because the public facilities are overloaded. Weekly sessions for six months is his suggestion, a total of 26 sessions at between $1,000.00 to $3,000.00 per session. If her condition deteriorated she might require in-patient treatment at $3,000.00 per day with a duration of approximately three to four weeks.

18. Dr Chung suggests ten sessions - one every fortnight - at $1,500.00 to $2,500.00 per session in the private sector. He does not accept that she is in need of in-patient treatment. I think he has misread Dr Ho's report. Dr Ho said "if" and "might". He sets out the cost of treatment in a public hospital at $68.00 per day as an in-patient. Out-patient treatment costs $50.00 each session.

19. There are certain imponderables as far as in-patient treatment is concerned. I doubt that there will be a significant degree of improvement but with the worry of this case behind her and proper support at home, and aided by some out-patient sessions I think she will make some progress with a brighter outlook on life. I will allow $50,000.00 to cover all treatment. I think use will be made of public medical facilities to some extent.

Future Domestic Care

20. It is agreed that she needs domestic help in particular. I think a day shift is appropriate. I do not think nursing experience is necessary, just an awareness of her condition and the ability to act sensibly and quickly in the event of any problem emerging. I will allow $5,000.00 per month and I consider a multiplier of 3 is sufficient - $60,000.00 per annum x 3 = $180,000.00.

Summary

21. There will therefore be judgment for the Plaintiff for $776,270.00 damages with costs, and with interest to be calculated at the usual rate for the appropriate periods.

Plaintiff's Disability

22. Before the trial started my reading of the papers suggested that at present, by virtue of her condition occasioned by this accident, she is incapable of managing her own affairs and therefore is under a disability. Mr Edward Shum who appears on her behalf obviously had the same thoughts and he handed to me a certificate from Dr Peter Ho to that effect.

23. Accordingly on all the evidence I am satisfied that she falls within the provisions of Order 80 rule 1, that she is a person under a disability, and that a next friend must be appointed. This case will return to the list before me as soon as the necessary formalities for the appointment of the next friend have been completed.

24. At the hearing on the 11 May I ordered that an interim sum of $500,000.00 be paid into Court by the Defendants within 14 days of that date. As soon as it was paid in the monthly sum of $10,000.00 was to be paid out to the Plaintiff's son to enable him to hire, straightaway, the services of a domestic assistant for his mother.

The basis of the costs

25. Mr Shum applied for costs to be on a common fund or indemnity basis in view of the way the Defendants had conducted these proceedings hitherto and by reason of the Plaintiff's position now as a person under a disability.

26. My earlier decision in this case set out in the first paragraph of this judgment does not need repeating. The Defendants were wholly unrealistic in their stance. They wasted time and costs on both sides, by advancing a spurious defence. They maintained it in the face of common sense principles and delayed the progress of the action by some 12 months. In my view they should pay common fund costs from the time of service of the Defence (14 March 2000) which raised unjustifiably allegations of contributory negligence and liability for costs on that basis will continue until the final hearing.