Leung Chi-ming v. So Ki-yim
Read the full judgment text of HCA 433/1976 on BabelCite. This High Court CFI judgment.
1. The plaintiff's claim is for damages for personal injuries resulting from an accident in which he was, while crossing a stud-crossing near Fu Mei Street bus terminus, knocked down by a private car driven by the defendant. I have had no difficulty in reaching the conclusion that the accident was caused through the negligence of the defendant alone and that the plaintiff in no way contributed to the accident by his negligence. At the date of the accident the plaintiff was 4 ½ years' old, the ac
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HCA000433/1976
----------------- Coram: Leonard, J. Date of Judgment: 7th June, 1978. ----------------- JUDGMENT ----------------- 1. The plaintiff's claim is for damages for personal injuries resulting from an accident in which he was, while crossing a stud-crossing near Fu Mei Street bus terminus, knocked down by a private car driven by the defendant. I have had no difficulty in reaching the conclusion that the accident was caused through the negligence of the defendant alone and that the plaintiff in no way contributed to the accident by his negligence. At the date of the accident the plaintiff was 4 ½ years' old, the accident occurring on the 25th July, 1973 and the plaintiff having been born on the 31st October, 1968. I have found as a fact that shortly before the accident the plaintiff, in the company of his mother and a younger brother and sister, was crossing Fu Mei Street on the stud-crossing in question from east to west; the party of four had negotiated the first half of the street and reached the safety of a traffic island. While the party was stationary on the safety island the plaintiff's mother had one child on her back, held a second child by the hand with her left hand and in her right hand she carried a basket. The plaintiff had his hand on this basket, but, unfortunately, he at that stage left his mother and continued to cross the second half of the road. Whilst he was within the studded-crossing, he was knocked down by a car driven by the defendant, driving at what must have been an excessive speed. The impact knocked him off the pedestrian crossing. He was thrown up in the air and his body travelled some twenty feet before coming to rest. It was the defendant's case that he had suddenly dashed out, not from the safety island but from the pavement on the left of the defendant's car. This was quite clearly not the case. The defendant was obviously not keeping a proper look-out, and equally obviously travelling at an excessive speed, because he was unable to bring his car to a stop until it had not only traversed the entirety of the studded-crossing but its rear wheels had also travelled a distance of twenty-one feet from it. 2. The defendant had pleaded guilty at the Magistrates Court to negligent driving and in denying negligence before me, he, a police sergeant, said that he had pleaded guilty to negligent driving because the witness on whom he relied had not been available to give evidence for the prosecution when the case was before the magistrate. He was patently prevaricating and I did not accept his evidence as truthful. It was clear that the plaintiff, being then aged only five years, had run out from the safety of the traffic island apparently without looking. His conduct was only that to be expected of a five year old child crossing on a studded-crossing at a place where the defendant, had he been driving with due care and attention, might have expected such an event to occur. In these circumstances, I considered the defendant to be solely responsible for the accident and so held. 3. After the accident, the plaintiff was admitted to the Neuro-surgical Unit of Queen Elizabeth Hospital where he remained totally unconscious for a period of ten days. The x-ray disclosed a cracked fracture of the skull on the right parietal region. He was treated conservatively, and after ten days he gradually recovered consciousness remaining "drowsy" a further period of two weeks. When he recovered full consciousness he was unable to sit up as the supporting muscles had weakened. He was discharged from hospital on the 10th of September, 1973 but had to be re-admitted on the same day because of a minor injury from a fall he sustained as a result of his condition. He was admitted for four further days and he was discharged on the 14th September, 1973. The clinical diagnosis was contusion of the brain and brain stem injury. 4. Two years after the accident, the Consultant Neurosurgeon at Queen Elizabeth Hospital noted:
5. Having heard the evidence of the parents of the plaintiff I am quite satisfied that prior to the accident he was a normal intelligent child. I was particularly impressed with his parents. The father was obviously devoted to him. The affection which he displayed towards him throughout the trial was quite obvious to me. His mother struck me as a practical common-sense woman. Although she may have exaggerated his mental ability prior to the accident, (what mother does not with her eldest son!) I accept her evidence as indicating that he was perfectly normal. Unfortunately, this condition has not been regained since the accident, although the extent of his disability as a result of it was the subject of considerable medical disagreement. 6. The child has, since his release from hospital, been the subject of many tests and attention from neurologists, psychologists and psychiatrists. He was first seen by Dr. John Hunter on the 27th July, 1974. At that time, his father complained that he suffered from recurrent nose-bleeding, red eyes, toothache, he was clumsy in walking and constantly fell, his speech was affected as was his general behaviour and obedience, and his writing skill had deteriorated. On that occasion, Dr. Hunter felt that the chief residual damage, one year after the injury, was a disturbance of the sense of balance, a mild alteration of behaviour, a disinclination to speak and a loss of ability to write fluently. He found these consistent with the severe head injury and commented that:
and that the effect of the injury seemed to be a reversion to a behaviour pattern inappropriate for a four year old and more appropriate to an infant. At that stage, Dr. Hunter recommended psychometric evaluation. 7. Presumably, as a result of the initial recommendations of Dr. Hunter, the child was seen by a Mr. P.N. Gilchrist, a consulting psychologist. He was almost seven years of age when first seen by Mr. Gilchrist, who describes him as of "very patchy, cognitive development" which "represented a serious regression from his performance prior to the accident". His sense of balance had improved but he still fell occasionally. His articulation was adequate but vocabulary limited and he was in general inhibited in his use of speech. Mr. Gilchrist regarded it as probable that he would require a special educational provision for the educationally sub-normal. His condition would have a retarding effect on his school progress, as he was incapable of normal spontaneous speech and unwilling to talk. His I.Q. was below average range. Later his condition was found to have improved somewhat but he "needed careful and special educational provision if he was to be helped to overcome his current difficulties". 8. He was seen again by Dr. Hunter in November and December 1976. He was alert and co-operative but would not speak when spoken to nor spontaneously. His gait had improved but he was awkward and he appeared to have slight difficulty in the use of his right leg. There was considerable abnormal behaviour in reluctance to answer questions and to be tested. Dr. Hunter considered him to have generally improved over the two years but considered that a psychiatric opinion should be obtained because of the disturbance in his behaviour. 9. The child was subjected to examination by four electro-encephalograms. All of these were abnormal and Dr. Hunter regarded them as indicating a strong possibility that epileptic attacks might develop. It was, however, clear that from his evidence, Dr. Hunter did not anticipate epileptic fits but rather epileptic disturbances which might affect his learning capacity and his behaviour. 10. The boy had recommenced schooling in 1973 and changed schools once. He had had to repeat his Primary One examination and had to a large extent lost his powers of concentration. The picture painted by Dr. Hunter was of a child who had lost two or three years of his most formative development. Whilst he considered that he was unlikely to suffer from convulsions he was satisfied that from the E.E.Gs, and from his study of the plaintiff that his brain damage was such as to cause him to lose contact for short periods with what was going on about him, with resultant inattention and frustration. Again the possibility of epileptic disturbances would prevent assimilation of knowledge. He had no doubt, also, that the child suffered from recurring headaches and some loss of balance. 11. The child was seen by two psychiatrists. First, by Dr. WONG Chiu-lung, who examined him on four occasions in January and February 1977. Dr. Wong reported that after the accident the child did not go back to school until early 1974. He spent one and a half years in Kindergarten and went on to do his Primary One in September 1975. He did very poorly and had to repeat the grade in September 1976. In Dr. Wong's opinion there was a very great improvement from the condition in which the plaintiff had found himself shortly after the accident. He now, according to Dr. Wong, manifested "no abnormal behaviour". Dr. Wong was of the opinion however that there was almost certainly a considerable degree of damage to the boy's brain. He based this finding in part on abnormalities in his E.E.Gs. Dr. Wong concluded his report with the following summary:
12. The boy was also seen by Dr. W. Green, consultant in psychiatry, whom I found to be convincing witness. He found the plaintiff to be seriously affected as a consequence of his head injury, and that he would certainly remain behind his peers in communication skills.
13. I am quite satisfied, having heard Dr. Green's evidence that the plaintiff's behavioural problems, poor concentration and his easy frustration were directly attributable to the brain damage. I find as a fact that damage to the parietal region sustained in the accident has resulted in the parietal lobe function being abnormal and inefficient. The plaintiff has not now the capacity to catch up on his equals. Again Dr. Green pointed out and I accept that in Hong Kong there was "incredible difficulty in finding the right support for this kind of case", that is to say, in finding teachers who have the time and skill to help a child like this who needs individual care and attention. He claimed and I accept that unhappiness is likely to result from the child's frustration caused by his inability to keep up with others with whom he would normally associate. 14. The plaintiff was also seen on a number of occasions by a clinical psychologist, a Mrs. Peggy Miu. She also found him difficult to test. During one two-hour session he refused to speak a word and appeared sulky and indifferent. She found him to be of limited intelligence but considered that the brain damage must be "small and generalized", and that he suffered rather from emotional disturbance. She attributed this to matters other than matters the direct result of brain damage. The principal matter of which she spoke as likely to cause emotional problems was what she saw as rejection by his parents. I saw no signs of such rejection and indeed both parents struck me as most concerned for the boy. I am satisfied that such rejection as there may have been stemmed not from any lack of affection but from lack of understanding of the impairments suffered by the boy as a result of the accident and was a natural result of the accident. 15. Finally, the plaintiff was seen on a number of occasions by Dr. Fali J. Shroff, a consultant neurosurgeon. He also found the boy difficult to test as he refused to speak and obey commands. He described him as "obviously obstinate", "apathetic" and "slightly lethargic". The general impression on first evaluation was that the boy had "suffered a moderate to severe head injury three years' ago as evidenced by the fact that he was rendered unconscious for ten days with a slow recovery to consciousness and the persistence for some time of his unsteady gait and slurred speech. The evidence so far presented suggest that he suffered injury to the right parietal area and the clinical signs elicited after recovery of consciousness suggest also contusion of the cerebellum. The disappearance of the clinical signs suggest that the lesions or lesion in the cerebellum were not severe enough to be irreversible. Physically then, it appears that this boy had made an almost complete recovery and therefore I do not expect him to suffer from any physical impairment in the future as a result of the accident. His claimed intellectual impairment is a different matter altogether. The assessment of subjective states must always lack certainty. Intellectual impairment may remain undetected at routine clinical examination. Slow and almost imperceptible improvement may continue for nearly a decade, especially in the very young. Detailed analysis of defects in reasoning and memory is a skilled and time consuming task and may demand special expertise." He strongly recommended skilled psychometric testing. 16. A week or so before the hearing, Dr. Shroff saw the plaintiff again and found him far more co-operative. He found that the boy had made a remarkable physical recovery, that his chances of developing epilepsy were minimal, that the E.E.Gs were abnormal but Dr. Shroff considered this not uncommon in head injuries. He was of the opinion that there was a "great capacity for improvement in his mental faculties assuming that he has the right home environment". 17. I was quite satisfied that the boy had been overtested. This in part led to difficulties in his behaviour when being subjected to tests and really when one examines the voluminous reports produced to me one cannot blame him. 18. After he left hospital, he was examined on at least five occasions by Dr. Hunter. On at least four occasions he had E.E.Gs. He was examined twice by Dr. Shroff; on at least two occasions by Mr. Gilchrist; on at least three occasions by Mrs. Miu; on several occasions by Dr. Wong and Dr. Green. All these experts have given evidence with the exception of Mr. Gilchrist and his reports were submitted to me. All those who gave evidence have also submitted reports. 19. I have also had the advantage of hearing the parents, and of considering the school reports and of hearing the teacher of the plaintiff. 20. Out of all this material, the general picture which emerges is of a boy who has suffered what I would regard as extremely serious brain damage, who was unconscious in hospital for ten days, slowly recovered consciousness, was in hospital from the 25th July 1973 to the 10th September, 1973, and was then released, immediately had a fall due to his condition and returned to hospital, was finally discharged on the 14th September, 1973 but had to attend a follow-up clinic at the hospital fairly continuously up to the 14th June, 1975, at which date he was still walking with an unsteady gait, his speech was still affected, he complained of headaches and making poor progress at school. However, the permanent disability then envisaged by the consultant neurosurgeon, Dr. Cheung, had not been as serious as he expected. That there is a permanent disability resulting from the accident in the form of impaired intelligence and poor co-ordination, I have no doubt. I think, however, that the risk of epilepsy in the form of epileptic fits may be largely discounted. Nevertheless, I am satisfied by the evidence of Dr. Hunter and the E.E.Gs and the findings of Dr. Green when he carried out tests with particular reference to the parietal area of the brain, there is a permanent brain damage and that this has resulted in impaired intelligence and in a natural clumsiness of movement. When he first sat for Primary One he failed it. I have little doubt but that had it not been for the accident he should have passed it. He changed schools sat again and passed it and is now in course of preparing for Primary Two. I have had sight of his report for what is referred to as the "First Semester 1977". This a remarkably detailed document and shows the results of tests sat by the boy at mid-term and at the end of the term. He did quite well at the mid-term test and there was a very marked falling off in the final test in which he was last but two in a class of 30. His teacher who is obviously a woman of insight attributed his low position to slowness to respond and lack of concentration. She described him as much slower than the others in his class as his concentration was worse than that of the others. She also bore out the evidence of his parents in one important respect namely that he claimed very often to have headaches. She is obviously an able and conscientious teacher experienced in the excuses of the young and she accepted these claims and had noticed that his eyes were often blood shot. She had only once found him in tears from the severity of his headaches. 21. In summary then we have, as a result of the accident, a child who is already several years behind his age group and who will not catch up, who is afflicted with moods and lack of concentration which will almost certainly result in his falling further behind and who will find it difficult if not impossible to get in Hong Kong the personal attention that his handicapped condition requires. At the same time he is far from being an idiot and apart from a clumsiness in movement due to injury to the parietal area of the brain has had an almost complete physical recovery. 22. I consider that in assessing general damages I should have regard to two main heads viz.: pain, suffering and loss of amenities and secondly, loss of earning capacity. The plaintiff clearly needs specialized attention in connection wtth his education but the evidence suggests that in Hong Kong this is free if it is to be had. He, ironically, is perhaps not sufficiently and obviously handicapped to be certain of getting attention from one of the charitable agencies who engage in work of this kind. I have no evidence as to the cost of such attention to those who can afford to pay for it so I do not propose to treat this as a separate head. 23. For pain, suffering and loss of amenities the greater part of which will probably as he grows older be the appreciation that had it not been for the accident he would have had a fuller and more rewarding life. I think the correct figure to award is $60,000. For loss of future earning capacity I think the proper figure on which to base the award is a sum of $600 per month as this boy's background suggests that in the normal course of events he would have been a semi-skilled worker. His lack of co-ordination and loss of concentration will deprive him of many outlets than would otherwise be open to him. I have given lengthy consideration to the multiplier. About ten years must pass before he would normally attain earning capacity and during that period he will be subject to all the normal vicissitudes of life. The perils of these to which I have paid passing regard already when deciding on the amount of my award on the first head will be increased for him by reason of his momentary lapses in concentration because of the epileptic discharge of which Dr. Hunter spoke. Taking all these matters into consideration and accepting that he might well have a working life of over 30 years I nevertheless consider that I should limit the multiplier to 10 (the multiplier used in somewhat similar circumstances in Harris v. Harris(1)) which gives a figure of $72,000 on this head. 24. Special damages are only $708.20 for "nourishing food" and travelling expenses while the plaintiff was in hospital. I think these are reasonable. Although it is not my practice to make an award for special food one does not expect a parent to visit a child in hospital empty-handed. This gives a total of $132,708.20. 25. There remains the question of interest. In Cookson v. Knowles(2) the Court of Appeal departing from Jefford v. Gee(3) was of the opinion that interest should no longer be awarded in personal injury cases when a lump sum is awarded for pain, suffering and loss of amenities on the basis that nowadays between the date of this issue of the writ and the date of judgment the "scale" of award invariably increased because of inflation in England. We do not have anything like the same inflation here and I must confess that my award on this head has been arbitrarily fixed for no such "scale" exists in Hong Kong as is mentioned in Cookson v. Knowles(2). The decision of Cons, J. to follow Cookson v. Knowles(2) in O.J. Action No. 396/77 and O.J. Action No. 2215/76 and of O'Connor, J. in O.J. Action No. 689/77 has been the subject of interesting notes by Mr. John Miller LL.B. in 1977 7 H.K.L.J. 366 and 1978 8 H.K.L.J. 73 in which he argues with some force that "to implement such a guideline here would only penalise plaintiffs and give defendants and the insurance companies behind them an unnecessary bonus". For my part I consider an important consideration to be that no mention is made in Cookson v. Knowles(2) of section 22 of the Administration of Justice Act 1969 now mirrored in our legislation by reason of the bringing into force of the relevant amendments of the Supreme Court Ordinance and the District Court Ordinance. The relevant section 48(4) of the Supreme Court Ordinance as amended enjoins me to "exercise the power" (to order "that there shall be included in the sum for which judgment is given ... interest ... between the date when the cause of action arose and the date of the judgment") "... so as include interest as the court considers appropriate unless the court is satisfied that there are special reasons why no interest should be given on those damages ..." In the instant case I am not satisfied that there is any reason why no interest should be given on the special damages from the date of the accident and I would award interest on them at the rate of 3%. I am so satisfied insofar as the damages for loss of earning capacity is concerned the special reason being that although the right to damages on this head accrued when the negligence occurred the occasion of obtaining earnings had not yet happened. As to the damages for pain, suffering and loss of amenities I consider that the defendant should not be obliged to pay damages before the issue of the writ - (in this case the plaintiff's advisers did not see fit to issue the writ until 3rd March 1976 although the accident occurred on the 25th July 1973 and even Jefford v. Gee(3) said no more than that interest should run from the date of the issue of the writ). Again I consider there is a special reason why the defendant should not be called on to pay interest on the entirety of the damages for pain, suffering and loss of amenities even from the date of the issue of the writ since the bulk of that award is in respect of mental suffering and loss of amenities still to be endured. I consider that the statutory duty will be satisfied by an order that the defendant pays interest on the sum of $20,000 from the date of the issue of the writ to to-day's date. However I think the statutory 8% is too high as interest rates have come down. I order that the sum of $20,000.00 should carry interest at the rate of 6% per annum from the date of the issue of the writ and $708.20 at the rate of 3% from the 25th July, 1973. 26. There will therefore be judgment for $132,708.20 plus interest at 6% per annum on $20,000 from 26th March 1976 and interest on $708.20 at 3% from 25th July, 1973 with costs to be taxed in accordance with legal Did Regulation.
Representation: Mr. Francis Eddis (D.L.A.) for plaintiff Mr. Patrick Fung (Gallant Y.T. Ho & Co.) for defendant. (1) (1973) Lloyds L.R. 445. (2) (1977) 2 All E.R. 820. (3) (1970) 2 Q.B. 130. |
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