Lui Yee Kwok and Others v. Yau Tak Shing and Another

HCA000789/1975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 3rd August, 1977.

Mr. Martin Lee instructed by C.Y. Kwan & Co. for Plaintiffs.

Mr. Dennis Chang instructed by H.A. Hoosenally & Co. for Defendants.

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DECISION

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1. On the 15th day of November, 1973 at about 12.05 p.m. four students of the Baptist College were walking along the pavement in Waterloo Road outside the Baptist Hospital. At the same time a goods vehicle travelling down Waterloo Road in a southerly direction crashed into a private car which was stationary at the traffic lights. As a result of the collision the goods vehicle pushed the stationary car towards the pavement and both vehicles broke through the iron railing and mounted the pavement where the students were standing. One student was killed and the other three received serious injuries.

2. The 1st, 2nd and 3rd plaintiffs in this action are the three injured pedestrians. The 4th plaintiff is the father and administrator of the estate of the deceased, Fan Yin Mei, Vera. The 1st and 2nd defendants are respectively the driver and owner of the goods vehicle concerned.

3. On the 27th May 1975 judgment was entered for the plaintiffs against both defendants for damages to be assessed.

FIRST PLAINTIFF

4. On the date of the accident this female plaintiff was aged 21 years and she was single. She was at the time a 3rd year student in the English Department of Baptist College. At the time of the accident she lost consciousness for a short period. The first time she regained consciousness she found her lower body was pinned under a vehicle and she saw that her right arm was badly crushed. She lapsed back into an unconscious state in which she remained for at least three days. During this time she was admitted to Queen Elizabeth Hospital in shock and given resuscitation treatment. On admission the following injuries were treated:-

5. The plaintiff was later transferred to Kowloon Hospital for convalescence and on 1st January 1974 a prosthesis was fitted to her right arm. On 5th March 1974 she was admitted to the Margaret Trench Rehabilitation Centre for intensive physiotherapy. She was finally discharged on 10th June 1974 and was thereafter treated as an out-patient.

6. The plaintiff, with the assistance of her doctors, trained herself while in hospital to write adequately with her left hand. At the insistence of her doctors and with considerable help and encouragement from her family and friends the plaintiff returned to College in 1976 to complete her final year of study and she was successful in gaining a diploma. This effort, however, was no small achievement as she was unable to concentrate for longer than 30 minutes without resting. Continual nausea and dizziness restricted her ability to study and Dr. Chan, the head of the English Department, gave evidence that he often noticed her in class to be suffering from her injuries. He described her as vomiting during a lecture and on several occasions she was on the verge of giving up her studies until persuaded to continue. Dr. Chan revealed that special arrangements were made for her to sit the examinations and he admitted that he marked her papers with sympathy and a degree of leniency.

7. The injuries which this plaintiff has suffered have left her with permanent neurological and orthopaedic disabilities and despite the fact that a number of common factors exist between these two heads of injuries I propose to consider them separately.

8. The plaintiff gave evidence that she is unable to read or watch television for longer than 30 minutes without suffering headaches and nausea. She endures severe headaches three or four times per week and these are accompanied by nausea and often vomiting. The length of these attacks varies from a few hours to half a day. Dr. Michael Lee, a Specialist in Neurology, has seen the plaintiff on no fewer than fifty occasions and describes these symptoms as post-concussional. A physical examination has disclosed no brain damage and he has agreed that some of the symptoms could be attributed to an "anxiety neurosis". He explained this to be a condition whereby the patient suffers genuine attacks such as headaches and nausea which cannot be explained by organic damage but are precipitated by feelings of acute anxiety. In this case he feels the precipitating factors are the loss of a limb and the fact that the plaintiff feels that she is different from other people. Dr. Lee suggested that as the loss of the limb is permanent this neurosis would be difficult to cure although he agreed psychiatric treatment might help. Dr. A.R. Hodgson agreed with Dr. Lee's findings and concluded that the symptoms would get better if her anxiety neurosis improves.

9. I gained the strongest impression that Dr. Lee held out little hope of any substantial improvement and I am satisfied that it is on this basis that damages should be assessed.

10. Turning to the orthopaedic disabilities I have received considerable assistance from the evidence of Dr. Wong Sze-King and Dr. Arthur Hodgson both of whom also submitted detailed reports of their findings.

11. For the sake of clarity I intend to consider the orthopaedic and related injuries in the following categories:-

1. The above elbow amputation has left a stump measuring 9 inches in length. The stump is flabby and very tender. Two attempts have been made to fit a prosthesis but dermatitis resulted causing blisters and itching. It was felt that neither prosthesis was correctly fitted. While Dr. Hodgson believes that a correctly made prosthesis could still be worn Dr. Wong pointed out that the stump was fleshy at the end and it would be extremely difficult to design a prosthesis that would not cause irritation. I do not place any real significance on this question, however, because even if the plaintiff was able to be fitted with a prosthesis it would be extremely limited in its value to her. The plaintiff also suffers from what is known as the "phantom-limb syndrome". This means she still feels the presence of the amputated part of the arm despite its absence. This causes her considerable pain particularly at night and thereby disturbs her sleep. The plaintiff told me that she feels this pain every night. The operational scar at the end of the stump is extremely tender and the plaintiff visibly winced with pain when it was touched by Dr. Wong while he was showing me this injury. Although further surgery to refashion the stump will help, the disability in all other respects will be permanent.

2. The fracture of the right femur was fixed with double rush pins and these are still in place. This was a compound fracture which Dr. Wong believes has not united correctly causing an external rotation deformity to the hip joint and restricted flexion movement of the knee. Dr. Hodgson reported a good union of the femur but agreed with the restrictions in movement. This disability together with the weakness of the ankles at present confines the plaintiff's ability to walk to a substantial degree. It was felt that the removal of the rush pins under surgery would lessen the pain now being suffered by the plaintiff but would not increase the amount of movement.

3. The fracture which occurred in the left ankle had now united well but the plaintiff still feels considerable pain and the ankle is very weak and prone to give way on walking. To remedy this a surgical boot has been designed with a rigid support which wraps itself around the lower calf. Medical evidence confirms the plaintiff's reports of pain and weakness in the ankle. Dr. Wong regards this disability as disturbing but not disabling but expects her to accept the disability for some time.

4. In the accident the plaintiff received multiple wounds which have left numerous scars all over her body. Perhaps the only suffering this unfortunate girl has avoided as a result of the accident is the absence of any noticeable scars to her face. Two inconspicuous scars are present but her face has otherwise been spared. This cannot be said, however, for the rest of her body. Particularly ugly scarring exists on her right thigh and lower left leg. These are still tender and apt to blister when thick trousers are worn. Further scarring has been reported on her shoulders, left arm and lower limbs. I am advised that these are permanent.

5. The plaintiff has complained of a mild pain in the neck and after sitting for any lengthy period her back aches. Medical examination revealed that this was due to injury to the ligament and cartilage structures. No injury was detected in the spine itself. Persistent pain was also felt in the right shoulder and Dr. Wong attributes this to fibrositic nodules on the right scapular bone which are a result of scarring of the muscles during injury. The fracture of the right 3rd rib still causes occasional pain when the plaintiff breathes deeply.

12. In addition there were some minor complaints which are a cause of annoyance but are overshadowed by the suffering which the plaintiff endures from those major disabilities which I have already outlined.

13. In assessing damages for pain, suffering and loss of amenities I find it difficult to envisage how one could suffer very much more than this plaintiff has. Dr. Hodgson described her as a "human wreck" and Dr. Wong has predicted her future as "a road of life-long disability, disappointment and misery". I have carefully considered all the evidence outlining this plaintiff's disabilities, their permanent consequences and the future she must expect and in the circumstances I consider the appropriate damages for pain, suffering and loss of amenities should be $185,000.00.

14. Turning to the question of damages for future loss of earnings the principal issue which arises is whether the plaintiff has, as a result of her injuries, suffered a total loss of earning capacity. This is dependent to a large extent on whether she can overcome the state of anxiety neurosis from which she presently suffers. The resulting symptoms of lack of concentration, headaches and nausea act as a formidable bar to most categories of employment. I have referred to the fact that in 1976 she was able to return to her studies and thereby gain her diploma. Mr. Lee, Counsel for the plaintiff, has urged me to distinguish between the adaptability and lack of regimentation enjoyed by a person studying and the need for an employee to conform with the strict requirements as to hours and duties required by an employer. He suggested that whereas the plaintiff was able to study for a short period and then rest this would not be possible if she were to engage in any form of employment. The plaintiff has attempted on two occasions to assume some form of work. The first related to a temporary clerical position in an office operated by her brother. After only an hour or so of filing documents she experienced nausea and was unable to continue. A further attempt to give private tutoring to her nieces ended in a similar way.

15. It is clear from the evidence that in her present state the plaintiff is unemployable. The possibility of an improvement is viewed pessimistically by Dr. Lee and Dr. Hodgson considered that her ability to assume employment had largely diminished. I agree, that on the medical evidence before me, the chance of the plaintiff being able to earn any wage in the future is at best remote.

16. Evidence was adduced as to the starting salary which a person could expect to receive after having attained similar educational qualifications to those achieved by the plaintiff. Dr. Chan Vice-Chairman of the Baptist College, stated that the average starting salaries of his English diploma holders ranged from $1,400 to $1,800 per month. He considered that before the accident the plaintiff was an average student and on this assessment I could well find that she could have expected a commencing salary in the vicinity of $1,600 per month. Taking into account the prospect, however faint, that she may possibly be in a position in the future to earn a small salary I will assess her future loss of earning capacity at $1,500 per month.

17. The adoption of an appropriate multiplier in this case can be considered in the light of several recent decisions in Hong Kong. It is heartening that this particular determination is not subject to the continually changing values occasioned by inflation. Some of the decisions which have assisted me are as follows:-

(a) Fung Shuet-fun v. Chiu Kam-hung 1975 H.K.L.J. at P. 106.

18. The plaintiff, a female aged 18, was incapacitated as a result of an accident. The multiplier adopted was 13.

(b) Lau Chau-wing v. Tam Miu-lin 1975 H.K.L.J. at P.257.

19. This male plaintiff was single and aged 27. He received serious injuries which prevented further full-time employment. A multiplier of 12 was chosen.

(c) Yung Wing-woo v. Hung Ping-wan 1975 H.K.L.J. at P. 255.

20. The 39 year old male plaintiff was estimated to have a working life of 20 to 25 years. The multiplier adopted was 15.

21. It is apparent from previous decisions that the multipliers adopted for female plaintiffs are somewhat less than those for males. The reasons for this must be obvious. This plaintiff is now aged 25 years and I have decided, after taking into account all the applicable contingencies, that damages under this head can be assessed using a multiplier of 14 as a general basis.

22. I consider that a rounded figure of $250,000 for future loss of earnings should be awarded.

23. One final head of general damages is claimed on behalf of the first plaintiff. This relates to the future loss of earnings suffered by the plaintiff's sister as a result of her having to attend on the plaintiff during the day and thereby losing an income derived from driving a number of children to and from school. The plaintiff's sister told me that she had earned between $700 and $800 per month for the three return journeys she undertook each day. The need for her to look after the plaintiff was not seriously challenged as both her parents are elderly.

24. From the figures given deductions would have to be made to reflect the savings in petrol and car maintenance and possibly income tax previously payable. No direct evidence was adduced as to how many years the plaintiff's sister could have expected to continue this activity and as she has six children of her own there must be some uncertainty. The need for this sister's daily attendance in the future may also abate and in all the circumstances I think a general award of $20,000 would satisfactorily meet this claim.

25. General damages claimed have been substantially agreed. Some items which cannot be supported such as health food and new clothing do not seem exorbitant and I propose to award the following general damages:-

26. General damages as awarded total$455,000.00. Special damages amount to $30,688.90.

27. In view of the substantial damages awarded the conventional allowances of interest would not be insignificant. On this aspect Mr. Chang, Counsel for the defendants, referred me to a very recent decision of the Court of Appeal in England in the case of "Cookson v. Knowles" which was reported in The Times newspaper in its edition dated 26th May, 1977. Unfortunately this decision is not yet available in any law reports but it does seem to advocate sweeping reviews of that Court's earlier decision in "Jefford v. Gee" (1970) 2 Q.B. 130. Mr. Chang argued that the principles set down in this recent decision should now be followed in Hong Kong.

28. In this decision Lord Denning M.R. considered that because of continuing rampant inflation, awards of damages should be divided into two parts: (1) the pecuniary loss up to the date of trial on which interest should run at half-rate; (2) the pecuniary loss from the date of trial awards on which no interest should be awarded. In relation to awards for pain, suffering and loss of amenities, Lord Denning said: "The guideline should be altered by suggesting that no interest should be awarded on the lump sum awarded at the date of trial for pain and suffering and loss of amenities".

29. As "Jefford v. Gee" has already ruled that interest should not be awarded on damages for loss of future earnings, the end result of the application of the principles outlined in "Cookson v. Knowles" would be to remove all awards of interest on the general damages awarded in this case.

30. Mr. Lee bravely argued that the Court of Appeal may have misinterpreted the statutory provisions relating to the awarding of interest in personal injury claims. Section 22 of the Administration of Justice Act 1969, which provision has now been enacted into our Hong Kong legislation, requires the Court after having awarded damages in excess of ¼200...." to include in that sum interest on those damages or on such part of them as the Court considers appropriate, unless the court are satisfied that there are special reasons why no interest should be given in respect of those damages." His argument was that the special reasons referred to must be peculiar to the individual case and "continuing rampant inflation" would not meet that criterion. Mr. Chan properly pointed out that the words "or on such part of them as the Court considers appropriate" does give the Court a discretion, without the necessity of finding special reasons, to refuse to award interest on any category of damages.

31. Mr. Lee's further argument that inflation in Hong Kong cannot be compared with that existing in England is considerably more appealing. It is clear that the proposed changes were motivated solely by the alarming rate of inflation being experienced in England. Figures disclosed to me pointed to the fact that the rate of inflation in Hong Kong over the last five years was less than that being experienced in England during the years 1969 and 1970 which is the time the court gave its decision in "Jefford v. Gee". I do not consider it desirable that the Courts in Hong Kong should have to monitor rates of inflation before deciding whether to adopt the altered guidelines nevertheless I prefer to continue with the accepted principles applying in Hong Kong in awarding interest on damages. There is, as yet, no indication whether the decision in "Cockson v. Knowles" is the subject of an appeal and the reasons which motivated the changes do not apply here.

32. Interest on the general damages awarded for pain, suffering and loss of amenities, namely $185,000.00 will be allowed at the rate of 8% p.a. from the date of the service of the writ and special damages will earn interest at 4% p.a. from the date of the accident.

33. The first plaintiff is to have her costs with a certificate for counsel on the assessment.

SECOND PLAINTIFF

34. Like the first plaintiff this young lady was aged 21 years at the date of the accident and was single.

35. She was rendered unconscious and admitted to Queen Elizabeth Hospital. On admission she was found to have a 3 inch laceration on the scalp and swelling and tenderness over the left ankle. An X-ray of the ankle revealed a fracture of the left tibia bone. The scalp laceration was sutured and the ankle was immobilized with a short leg plaster. She was transferred to the Neurological Unit for observation of her concussion. She was discharged after one week. Dr. Lee who considered her neurological injuries reported that apart from retrograde amnesia over a short period she has suffered no permanent damage as a result of her head injury and resultant concussion. Dr. Hodgson did point out that the scar at the back of the skull is tender to touch and causes pain if it comes into contact with her comb while she is brushing her hair.

36. Her major disability remains in the left ankle. She has difficulty in executing a number of movements and is unable to squat down. Dr. Wong is of the opinion that due to a slight displacement a gap has formed between the chip fracture and the lower tibia. This results in a clicking sound when the ankle performs certain movements.

37. The permanent effects of the ankle injury will be the limitations she will experience in running, walking and standing. She will be unable to wear high-heeled shoes and there is a likelihood of the ankle becoming osteo-arthritic in later life.

38. This plaintiff impressed as a person with a very bright disposition. She has recently married and is employed as a school teacher. She does experience some difficulties in her employment because of the necessity to stand for long periods.

39. She has suffered some scarring but this is inconspicuous and does not appear to cause her any concern.

40. In assessing damages for pain, suffering and loss of amenities, I take into account a number of recent awards referred to me. I think the appropriate damages under this head should be $11,000.00.

41. Special damages as claimed have not been seriously challenged and they will be allowed as follows:-

42. Two accounts amounting two $1,100 from Drs. Lee and Wong have been exhibited but I am satisfied that these fees were incurred in connection with the preparation of medical reports for the purpose of this assessment and they should be included as disbursements in the bill of costs to be taxed.

43. Interest will be awarded at 8% p.a. on general damages from the date of service of the writ and on special damages at 4% p.a. from the date of the accident. Costs to the plaintiff with a certificate for counsel on the assessment.

THIRD PLAINTIFF

44. This male plaintiff was, at the time of the accident, a third year student in Sociology at the Baptist College. He has now graduated and is in employment.

45. His involvement in the accident caused him to be thrown against a wall and he was wedged under a vehicle. Fortunately his injuries were not substantial. On admission to hospital he was found to have the following injuries:-

46. X-rays revealed no fractures. He was discharged from hospital after two days but was admitted to Baptist Hospital at his own request complaining of pain in the region of the right hip. He was eventually discharged 6 days later. A neurological report discloses no abnormalities and he is left with a faint scar on the right hip and suffers occasional tiredness in the lower part of the back.

47. He has virtually made a complete recovery from the effects of the accident.

48. The manner of his involvement in the accident, particularly as he was conscious throughout, would have been a most unpleasant experience. He has clearly suffered considerable discomfort during the immediate post-accident period but his present complaints are not serious.

49. I will award general damages of $5,000.00 to cover pain and suffering and loss of amenities.

50. The following items of special damages will be awarded:-

51. Medical fees incurred in connection with the assessment should not be included as special damages.

52. The usual awards of interest on general and special damages and costs will apply.

FOURTH PLAINTIFF

53. This plaintiff is the father of the deceased girl, Fan Yin Mei, who was killed in this accident. At the time of her death she was aged 23 years and 10 months and was also a student at the Baptist College.

54. Dependency is claimed on behalf of the following persons:-

55. Prior to her death the deceased was engaged in giving private tuition earning a monthly salary of $970. Of this amount she contributed between $300 and $400 monthly towards the household expenses of her family. She lived with her parents and paid her school fees and other expenses out of her own earnings. As her salary could be expected to improve after graduation I would consider that the sum of $500 per month would be a fair indication of her future contributions. From this I have to deduct an amount to cover her own share of household expenses and accordingly I arrive at a monthly dependency figure of $400.

56. In considering the appropriate multiplier my attention was drawn to the fact that the deceased had expressed an interest in studying abroad. There is also the likelihood of marriage and a family of her own. While it is probable that her contributions would cease or certainly decrease should she have adopted either of these courses this can be properly reflected in the determination of an appropriate multiplier.

57. Mr. Chang cited several similar cases where multipliers were adopted ranging between 5 and 7. He argued that in view of the uncertainties in this case a figure at the lower end of the range should be selected.

58. The deceased's father described her as an obedient and filial daughter who was closely involved in her family life.

59. I propose to adopt a multiplier of 6 and assess damages under the Fatal Accidents Ordinance in the sum of $28,000.00 ($400 x 12 x 6). Damages for loss of expectation of life will be awarded at the current figure of $10,000.00 and will merge with those awarded under the Fatal Accidents Ordinance.

60. I do not intend to apportion this sum. It is to be paid as were the contributions of the deceased to her father. These damages will bear interest at 8% p.a. from the date of the service of the writ.

61. Special damages have been agreed as follows:-

62. Interest at 4% p.a. will be paid on the special damages from the date of the accident.

63. The 4th plaintiff is to have costs and a certificate for counsel is also allowed.

64. Dated the 3rd day of August, 1977.

Representation:

Mr. Martin Lee instructed by C.Y. Kwan & Co. for Plaintiffs.

Mr. Dennis Chang instructed by H.A. Hoosenally & Co. for Defendants.