LEE KAM HAN v. FAN LIK MING AND ANOTHER

HCA000339/1975

1975 No. 339

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN
LEE KAM HAN an infant by LEE FAT CHEUNG her next friend Plaintiff
and
FAN LIK MING 1st Defendant
TANG MING SUN 2nd Defendant

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Coram: Mr. Registrar Cameron in Chambers.

Date of Judgment: 11 January, 1977.

P.K.M. Longley of the Legal Aid Department for the Plaintiff.

R. Wong (Johnson, Stokes & Master) for Defendants.

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DECISION

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1. On 30th October 1972 the Plaintiff who was crossing Lyemun Road in Kowloon upon a pedestrian crossing was struck and knocked downby a vehicle bearing the registration number AU5085 owned by the 2nd Defendant and driven by the 1st Defendant.

2. Judgment by consent was entered on 19th August 1976 for the Plaintiff for 75% of the damages to be assessed by the Registrar.

3. The Plaintiff was admitted to the Neurosurgical Unit, Queen Elizabeth Hospital, in an unconscious state with spasticity of the left-sidedlimbs and flaccidity of the right-sided ones. There were multiple superficial abrasions and lacerations. There was a high fever lasting15 days and the period of unconsciousness extended to 23 days during which period a tracheostomy was done. On regaining consciousnessshe was noted to have a right-sided hemiparesis and dysphasia. For a period of 10 she was unable to see. She was later dischargedto Kwun Tong Rehabilitation Centre on 4th January 1973 where she remained until 17th March 1973. Between March 1973 and October 1974she received private treatment from Acupuncturists as well as attending Queen Elizabeth Hospital for out-patient treatment.

4. Dr. Michael L.K. Lee first examined the Plaintiff on 28th October 1974. In his report dated 11th November 1974 he states that duringthe interview it was obvious that she had complete indifference to her own disabilities. She showed a failure to grasp as she hadlittle idea what the interview was all about and during the period of consultation she frequently giggled and smiled vacantly. Assessmentof her mental function showed her recent memory was not very much affected. She could read aloud but without any full comprehension.Her quality of writing was affected because of the weakness of her right hand. When tested in mental arithmetic there was a repetitivepattern of inaccuracy indicative of a lesion in the fore part of the brain. She walked with a visible limp in the right leg and herright arm hung limp as she walked. There were multiple scars on her limbs and trunk with keloid formation. An E.E.G. disclosed aninstability in certain areas such that an epileptic attack could easily occur given the right stimulus. Dr. Lee concluded that althoughthe Plaintiff had made considerable recovery in the past two years she still had definite right-sided weakness reflecting a left-sidedcortical lesion resulting in residual speech disturbance. His examination pointed to a substantial damage to the fore part of thebrain and the residual changes noted by him were likely to be more or less permanent.

5. A later examination was carried out by Dr. Lee on 22nd January 1976. On this occasion he found that the Plaintiff had shown definiteimprovement in her attitude and behaviour during the interview. She did not giggle or smile vacantly. She could understand the meaningof simple proverbs and could read with understanding. Her writing had improved. The repetitive inaccuracy in mental arithmetic wasnot apparent. Her mental facilities were still noticeably slow and below par. Muscle power had improved in the right leg but shestill walked with a limp. An E.E.G. was. repeated and confirmed previous findings of the tendency to develop epilepsy. Dr. Lee concludedthat here had been an improvement in the mental performance and behaviour pattern in the Plaintiff although she was still mentallyobtunded (of dull intellect).

6. At the time of the accident the Plaintiff was aged 12 years. Two months prior to the accident she had obtained a place at St. AntoniusGirls’ College after being successful in the Secondary School Entrance Examination. Her marks in the First Term Test were satisfactoryand she was expected to take her School Certificate Examination eventually. She was active in sport and was a member of the SchoolBasketball Team having been selected from a large number of girls. She took part in the usual school activities and would go outhiking or to barbecues or to the cinema with her friends. She was therefore a normal healthy and happy schoolgirl who could lookforward to higher educational attainments and the consequential financial rewards that these might bring. She might have gone onto University or to a Teacher Training College but if not, it is not unlikely that she would have become a Clerk. After a time shemight have married and had children.

7. Since the accident she has been unable to resume her studies. Her mental function is such that she cannot make any useful decision.She is not capable of sufficient concentration to do simple work such as assembling plastic flowers. She has difficulty in walkingand because of the weakness in her right arm has difficulty in writing and handling things. She is unable to go out on her own. Shestays at home and assists in a small way in the household chores such as washing the floor, washing her own clothes, washing dishesand bowls. She does some reading but cannot concentrate for long. She listens to music and watches television. She no longer sharesthe company of her former friends. She is easily irritated. She is able to look after her own basic necessities by way of washing,dressing and feeding herself. She will never enjoy the life that she was looking forward to of taking up a career or perhaps latermarrying and raising her own family.

8. I adjourned the hearing of the assessment so that a report could be obtained from the Director of Social Welfare as to the possibilityof the Plaintiff performing some light work. The Plaintiff was placed with Data General (H.K.) Ltd. for job trial. She was unableto follow instructions and was dismissed after nine days trial.

9. As regards General Damages I will deal with these under the following heads:-

(1) Pain and Suffering and Loss of Amenities

Mr. Wong for the Defendants referred me to the case of FU YUK MING and LEE FUK CHOI and Another 1975 HKLR at p.250. Theinjuries suffered by the Plaintiff (who was aged 14) in that case were appalling and more extensive than in this present case. Asum of $90,000 was awarded for pain and suffering and loss of amenities. Mr. Wong however did refer to a later case in the Courtof Appeal namely LEE WOON (or WAN) SUN and WONG KIN KEUNG @ WONG KEUNG and others Civil Appeal No. 26 of 1976 where the Court ofAppeal in deciding whether or not an award of $90,000 for pain and suffering and loss of amenities for injuries suffered by the RespondentWONG KIN KEUNG somewhat similar to those of the Plaintiff in this case considered that the award in the FU YUK MING case under thishead was on the low side and should not be adopted as a yardstick. Whilst Mr. Wong agreed with this he did submit that in this presentcase a sum of $90,000 would be a reasonable award for pain and suffering and loss of amenities this being the sum awarded to WONGKIN KEUNG @ WONG KEUNG under this head and upheld in the Appeal Case above referred to.
Mr. Longley for the Plaintiff did not agree that $90,000 was a reasonable figure. He referred to the case of HARRIS v. HARRIS [1973] 1 Lloyd’s Rep. 445 where a girl of 12 ½ suffered injuries somewhat similar to the Plaintiff in this case and an award of £20,000 was upheld. In HARRISother cases involving severe brain damage were referred to and in these cases the awards ranged from £17,500 to £24,000. Mr. Longleysubmitted that the award under this head should be in excess of $150,000.
This case can be distinguished from that of WONG KIN KEUNG. In WONG KIN KEUNG there was medical evidence that further physicalimprovement was expected and that when the legal problems pertaining to his accident were concluded and he found some form of workhe would show considerable improvement. Wong Kin Keung had in fact worked since the accident once as a Labourer for a period of 5months and once in his former employer’s shop for a period of 12 months. Miss Lee is unlikely to show further improvement. Accordingto the medical evidence the residual changes are likely to be more or less permanent as ample time has already elapsed for any significantor striking improvement to have taken place. She is also considered to be unplaceable in the open market due to her limited residualabilities. I therefore assess damages under this head at $150,000.

(2) Loss of Future Earnings

Mr. Wong suggested that I apply a multiplier of 15 to a salary of $650 per month. Mr. Longley agreed that the multipliershould be 15 but suggested that I should apply this to a salary of $800 per month. Taking into account the known facts in this case,the uncertain factors or vicissitudes of life and the factor of present payment in a lump sum I consider that a multiplier of 15is appropriate. Whilst the Plaintiff on completing her education might not immediately have earned $800 per month I would have expectedher earning capacity to have improved and a figure of $800 per month does not seem to me to be unreasonable. I therefore assess damagesunder this head at $144,000 i.e. $800 x 12 x 15.

(3) Cost of Future Care and Attendance

It is clear that the Plaintiff will never be able to look after herself completely and will never be able to run her ownhome. At the moment her family copes and the parents because they work different hours have not found it necessary to give up theirrespective employments. As the Plaintiff is only 16 a time may well come when she will have no parents to care for her. Mr. Longleysuggested the sum of $50,000 and in view of the sums I have already awarded for loss of amenities of life and loss of future earningsI am of the opinion that $50,000 is a proper sum to award under this head.
The total General Damages are therefore $344,000.
As regards Special Damages I will deal with those in order shown in the Statement of Claim.
(a) Hospital Fees
The sum of $132 was claimed for which receipts were produced. There was no argument on this item and I will allow it infull.
(b) Father off work
The Plaintiff’s father was away from work for about one month. A sum of $800 was claimed which was not disputed by Mr. Wong.The sum of $800 is therefore allowed in full.
(c) Mother off work
The Plaintiff’s mother was away from work for 15 days. A sum of $140 was claimed. Mr. Wong did not object and the sum of$140 is allowed in full.
(d) Travelling expenses
The sum of $611 was claimed. Mr. Wong did not dispute this claim. The sum of $611 is therefore allowed in full.
(e) Fees for Acupuncture
A sum of $8,325 was claimed in respect of this item. The Plaintiff received treatment from two Acupuncturists between March,1973 and October 1974. A Mr. Chan Lui Chow rendered treatment from March 1973 to July 1974 for which he submitted monthly accounts.A total of $7,155 was paid to Mr. Chan and receipts were produced verifying this sum. From July 1974 to October 1974 a Mr. Wong Pingtreated the Plaintiff. A sum of $1,170 was paid to him for this treatment and a note was produced from Mr. Wong Ping confirming this.
There is no doubt that during the two years following the accident the Plaintiff’s condition did improve. When the Plaintiffwas discharged from the Rehabilitation Centre, she could hardly work. She had little strength in her right arm or hand. She couldnot speak clearly. She could not write. After two years she could walk, though with a visible limp, she could write, though not welland her speech had improved. She did attend the Out-patient Department at Queen Elizabeth Hospital but it appears that the only treatmentshe received there was in the form of pills to calm her down.
From the evidence I heard it is not clear what part acupuncture played in the Plaintiff’s improvement but I am satisfiedthat it did play some part. Mr. Wong suggested that 3 months treatment was reasonable. Mr. Longley submitted I should allow thisitem in full. I will allow the sum of $7,155 being the sum paid to Mr. Chan for his treatment between March 1973 and July 1974.
(f) Damaged clothing and shoes
The sum of $58.40 was claimed. As there was no argument on this item, the sum of $58.40 is allowed in full.
(g) School Fees wasted
The sum of $46 was claimed. There being no dispute in respect of this item, the sum of $46 is allowed in full.
(h) Special shoes and equipment
The sum of $150 was claimed and again as there was no dispute the sum of $150 will be allowed in full.
(i) Special Foods
The sum of $3,561 was claimed in respect of this item.
The Plaintiff’s father stated that for nourishing food he paid:-
$11 per day for 51 days i.e. $561
$5 per day for 30 days i.e. $150
$12 per day for 75 days when Plaintiff
at Rehabilitation Centre i.e. $920 and since her discharge he had spent a further $1,950 on nourishing food.
Mr. Wong submitted that $7 a day for nourishing food supplied whilst the Plaintiff was in the Rehabilitation Centre wasreasonable.
I will allow a sum of $2,000 in respect of this item being:-
51 days at $11 = $ 150
30 days at $5 = $ 150
75 days at $8 = $ 600
and for nourishing food supplied after discharge = $ 689
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$2,000
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10. The total Special Damages are therefore $11,092.40.

11. As judgment was entered for 75% of the damages to be assessed the resultant total of $355,092.40 must be reduced to $266,319.30.The sum of $112,500 being 75% of the sum awarded for Pain and Suffering and Loss of Amenities will carry interest at 8% per annumfrom 17th July, 1975 to today and the proportionate amount of the Special Damages, namely $8,319.30 will carry interest at 4% from30th October 1972 also to today.

12. The total damages are to be paid into Court. The Special Damages of $8,319.30 may be paid out to the Plaintiff’s next friend LEEFAT CHEUNG. The General Damages of $258,000 will be invested by the Registrar at his discretion with liberty to apply.

13. The Plaintiff is entitled to the costs of the assessment and the action.

14. Dated this day of January, 1977.

(P.A.G. Cameron)
Assistant Registrar

11 JAN 1977

Representation:

P.K.M. Longley of the Legal Aid Department for the Plaintiff.

R. Wong (Johnson, Stokes & Master) for Defendants.