Fu Yuk-ming v. Lee Fook-choi and Another
Read the full judgment text of HCA 1269/1974 on BabelCite. This High Court CFI judgment.
1. This is an action for damages for personal injuries claimed to have been suffered by the plaintiff through the negligence of the first defendant as the servant or agent of the second defendant in the driving of a bus the property of the second defendant at Choi Hung Estate on the 1st December 1972. The accident in which the plaintiff sustained his injuries occurred on that date shortly before noon as the plaintiff, then a boy aged almost 15, was crossing Choi Hung Road from Choi Hung Estate t
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HCA001269/1974 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 1269 OF 1974 -----------------
----------------- Coram: Leonard J. Date of Judgment: 19th March, 1975. ----------------- JUDGMENT ----------------- 1. This is an action for damages for personal injuries claimed to have been suffered by the plaintiff through the negligence of the first defendant as the servant or agent of the second defendant in the driving of a bus the property of the second defendant at Choi Hung Estate on the 1st December 1972. The accident in which the plaintiff sustained his injuries occurred on that date shortly before noon as the plaintiff, then a boy aged almost 15, was crossing Choi Hung Road from Choi Hung Estate towards the Choi Hung bus terminus on a studded crossing. At the request of counsel for the parties I visited the locus and there follows a description of it with particular reference to that studded crossing. 2. Buses approaching the terminus in question still pass, as they then did, along a roundabout, by a railed-in grass patch until they come to the studded crossing. This is not a "crossing" within the statutory meaning of that word as used in the Road Traffic (Road Crossing) Regulations but a plain studded crossing. On passing over it the buses travel along Choi Hung Road with Choi Hung Estate on their left and a fence dividing Choi Hung Road on their right. They discharge any remaining passengers they may have at a bus stop which is about fifty yards from the crossing. The road here is quite straight. At the end of this straight portion of the road -which extends for approximately 300 feet - the road curves right and is shaped as a U. On negotiating this U-shaped bend the buses pass into the terminus proper. This consists of about one dozen bus bays. At the end of it furthest from the studded crossing, there is an open piece of road which passes between the last bus bay and a canteen for the drivers and conductors of the buses. Each of the bus bays is separated from its neighbour by a strip of raised pavement and in order to gain access to its proper bay a bus must pass behind such bays as are appropriate for other routes and drive into the bay appropriate to its route from the rear. When a bus starts off again it drives out on to the side of Choi Hung Road which is separated from the part giving access to the terminus by the fence I have mentioned which is approximately 4 feet in height. This fence runs from the studded crossing right down to the bottom of the terminus. Near the studded crossing the railing bifurcates so as to form an isosceles triangle the short side of which abuts on the studded crossing. Apart from this triangle Choi Hung Road runs straight along in front of the bus bays for a distance of approximately 300 feet. Each of the bus bays gives access to the road at an angle of approximately 140 degrees except the bus bay which is nearest to the crossing which gives access directly onto the crossing. The width of the road between the pavement outside the Choi Hung Estate and the first of these bus bays (that beside the crossing) is approximately 66 feet it being 26 feet from the pavement to the isosceles triangle of which I have spoken, the width of that side of the triangle giving onto the crossing being approximately 6 feet and the distance between the triangle and the final bus bay being 34 feet and 4 inches; the triangle in effect creates in the crossing what I will refer to as a safety island. The crossing itself is approximately 15 ½ feet wide but it is set at a most unfortunate and, to my mind, dangerous angle, in that it does not run straight across Choi Hung Road but crosses it obliquely. The result of this is that when one reaches the safety island one has, in order to see buses which have left bays at the far end of the terminus to look well over one's left shoulder; the further one walks after leaving the safety island the further one must turn in order to see buses coming along the road. This difficulty in seeing the buses approach does not apply so much to buses coming from bays which are close to the crossing for they are almost in front of one but slightly to one's left. If one makes the necessary turning, however, one has an uninterrupted view of all the bus bays and for a distance of about a hundred yards down the road. 3. The only eye witnesses called by the plaintiff as to the facts of the collision were the plaintiff himself (who, by reason of his injuries and a consequent mental deterioration which I will mention later, was a far from satisfactory witness) and his grandmother a woman aged well over 60 whose evidence was undoubtedly coloured by the fact that she was the person who was escorting the plaintiff to the bus stop on the day in question and by her anxiety to give evidence which she misguidedly, thought would support his claim. A third witness as to the facts of the accident called by the plaintiff was a quite independent member of the public who happened to be boarding a bus drawn up in the bus bay nearest to the crossing. His view was obscured by the bus which he intended to board so that he did not see the actual collision. His evidence was that he heard the noise of a bus approaching the studded crossing followed by the noise of a very abrupt braking. He went so far as to say that the sound he heard was of a fast moving bus. The noise of screeching brakes was he said followed by "the big sound of a bang." He saw the bus stopped on the crossing and the plaintiff lying in front of it with his right leg under the right or offside front wheel and trapped by it. 4. There was also before me by consent the police sketch of the scene of the accident from which it appears that when it came to a stop the offside front of the bus was 17 feet 2 inches from the safety island and 9 feet 7 inches from the pavement forming the bus bay. There was also produced in evidence before me a record of proceedings before the Magistrate's Court as a result of which the first defendant was found guilty of careless driving. The grandmother of the plaintiff had given evidence on that occasion also as had the plaintiff and the first defendant and their evidence then was considerably at variance with their evidence before me. 5. The only other evidence as to the collision was that of the defendant. His evidence was that he had been driving the second defendant's bus on a route between Kennedy Town and Western District on the island and Kwun Tong on that day. On the second trip of the day he was told to turn at Choi Hung rather than continue to Kwun Tong an arrangement which was possible as a result of the agreement between the second defendant and the Kowloon Motor Bus Company Ltd. (the company which had the right to use that bus terminus and to whose buses bays were allocated). He had dropped his remaining passengers at the bus stop which I have mentioned earlier, driven around to the terminus and then through the last bus bay (that furthest from the studded crossing in question) and straight along Choi Hung Road towards the crossing. By the agreement between the second defendant and the Kowloon Motor Bus Co. Ltd. the second defendant's buses were not allocated a bus bay and drivers were instructed to use the open piece of road or the bus bay furthest from the crossing when turning in the terminus. I am satisfied on the balance of probabilities that the first defendant obeyed this instruction at the time in question. He told me that while driving along Choi Hung Road some distance from the crossing he had attained a speed of approximately 15 miles per hour. He had then seen the plaintiff and others using the crossing on the other side of the road approaching the safety island. His case was that when he was about sixty feet from the studs he saw the plaintiff reaching the safety island and slowed down to a speed of 8 to 10 miles per hour. He thought the plaintiff was giving him precedence and drove forward towards the crossing. When he was about 4 feet from the crossing the plaintiff, he said, dashed out whereupon he applied both hand brake and foot brake. He said that those who are crossing behind the plaintiff were in the safety island at the time he struck the plaintiff. He later alleged that they were approaching it. He said that when slowing down 60 feet from the crossing he had sounded his horn. The plaintiff he claimed was not trapped underneath the bus but he had moved him to a spot a short distance ahead of the bus after the impact. His evidence as to his speed, in particular to his having slowed down to 8 miles an hour, was not in agreement with the evidence which he had given in the Magistrate's Court. He knew the studded crossing well and that people would be crossing it; he claimed the road was greasy as a result of oil having leaked from passing Kowloon Motor Bus Co.'s buses. 6. It is particularly noticeable that there was no reference in any evidence before me nor on the police sketch of the scene of the accident as to the bus having left any brake or skid mark on the road. It is also noticeable that the sketch shows the bus as having almost completely crossed the studded crossing (which was 16 feet in width) when it came to a standstill. Notwithstanding the nature of the injury to the plaintiff's foot and the evidence of the independent witness to the effect that the foot had been trapped under the front wheel of the bus there was insufficient evidence for me to find that the bus had been moved before the police sketch was made, and from the sketch it was clear that it had turned slightly towards its left before the impact and that its offside front wheel was 17 feet 2 inches from the safety island. I also had before me evidence as to the agreement between the Kowloon Motor Bus Co. Ltd. and the second defendant and the evidence of bus regulators as to the practice that had been established at that time for the conduct of buses belonging to the second defendant turning at this bus terminal. On all this evidence and having perused the notes of evidence taken in the Magistrate's Court I arrived at the following conclusions of fact: (a) the plaintiff was knocked down by a bus driven by the first defendant as a servant or agent to the second defendant while using the studded crossing in question. (b) At the time he was knocked down he had covered a distance of about 17 feet from the safety island. He was walking normally at a normal speed. (His evidence to this effect is borne out by the evidence given by his grandmother before the magistrate when she said that she had told him to walk faster, before me she denied most unconvincingly that she had given such evidence; (c) the bus when turning out of the terminal had used a bus bay well removed from the crossing, that is to say, at least 200 feet from it; (d) the plaintiff when leaving the safety of the safety island had failed to notice the fact that the bus was approaching along the straight part of Choi Hung Road from his left. It would have been quite easy for him to have seen the bus had he looked carefully while on the safety island but it would become progressively more awkward for him to have done so the further he got from the safety island; (f) the first defendant had driven along this straight part of the road at about 15 miles per hour and had not slowed down to 8 miles an hour immediately prior to the crossing. Had he done so the first defendant would have said so in no uncertain terms in the Magistrate's Court; (g) I did not believe that the bus driver had sounded his horn before coming to the crossing nor that he had applied both foot and hand brakes on seeing the plaintiff; (h) Although the studs on the crossing are somewhat recessed into the roadway both parties were well aware of their existence; (i) Furthermore the first defendant as a frequent user of the bus terminal in question should have known of the danger of there being grease or oil on the road. This is a common hazard near bus termini which is well known to bus drivers and indeed to anyone who boards a bus at, for example, the Star Ferry Terminus in Kowloon, so that the likelihood of skidding should have been in the mind of the first defendant; (j) I should not, however, have expected such a hazard to be in the mind of a 14-year-old boy. The plaintiff, as a boy of 14 years, was of an age when he could reasonably be expected to take normal precautions for his own safety within the meaning of that phrase in Gough v. Thorn(1). Indeed he constantly referred to the warnings received both at school and over the TV as to the precautions which he should take. I do not however consider that he could be regarded as blameworthy for failing to take account of the possibility of there being oil on the road or as to the probable consequences of that oil being there. I should however regard him as blameworthy in failing to keep an adequate lookout to ensure his own safety before leaving the safety island. In these circumstances I have no doubt but that both parties were guilty of negligence. 7. The fact that the plaintiff was using a studded crossing gave him no precedence over the bus driver for it is well settled law that studded crossings confer no precedence on those using them. In the words of Hogan C.J. in Reg. v. CHIANG Shu-cheong(2) at 598:
The principle that studs on the roadway do not confer rights has been re-echoed by Cons, J. in KWAN Yuk-lau v. KANG Sing-ho in O.J. 718/70 and the question is exhaustively dealt with in (1963) Hong Kong District Court Reports 263 at pages 268 and 269. The duty of drivers to exercise care approaching such crossings is the greater in a case such as this for this studded crossing is the only means of access from that part of Choi Hung Estate (a very highly populated area) to the bus terminus. Choi Hung Road up to this crossing is divided by a four foot high railing at its centre. The very existence of the safety island the triangle and the open space on the other side of the crossing all should alert bus drivers as to the danger of persons crossing. Against the failure of the plaintiff to keep a proper lookout when leaving the safety island I must balance the failure of the first defendant to anticipate that that the plaintiff might do something stupid, to anticipate that a boy of 14 or 15 in particular might fail to keep an adequate lookout and to anticipate that the presence of oil or grease on the road at such a place and its probable effect on his ability to come to a halt quickly if someone did a foolish thing. In Lang v. London Transport(3), a motor cyclist emerged from a minor road clearly marked "Slow, Major road ahead". He failed to observe this sign; failed to slow down and turned into the major road at a speed of approximately 20 miles an hour. An omnibus was travelling on the major road at a speed of not more than 20 miles an hour and collided with him. In that case the principle enunciated by Lord Dunedin in Fardon v. Harcourt-Rivington(4) that:
was approved. In the course of his judgment in Lang's case (3) Havers J. said:
In the same way the first defendant on seeing the plaintiff approaching the safety island should have been aware that he might continue to cross the road and should have taken care so that he should have been able to stop if the plaintiff continued, as it should have occurred to him a youth of 15 years was likely to do. For I do not believe that the plaintiff stopped in a manner likely to deceive the first defendant into believing that he was granting him precedence. If he had so stopped he could not have covered 17 feet walking normally, as I find he did walk, without the first defendant having had ample time to cross in front of him. Furthermore in assessing the percentage of culpability attributable to each it must be remembered that the first defendant was in charge of a potentially lethal instrument which the plaintiff was a harmless pedestrain In all the circumstances of the case I do not think I can assess the liability of the first defendant at less than 60%. 8. The injuries suffered by the plaintiff in this case were quite appalling. He was admitted to the Neurosurgical Unit of Queen Elizabeth Hospital on the 1st December 1972. He had a fracture of the shaft of the left femur. He had a degloved injury of the dorsum of the right foot in that the skin was stripped off an area of 7" x 4". The lower end of the fibula and the cuneiform bones were peeled off and crushed. He had a fracture and dislocation of the right elbow and a laceration of the cornea of the left eye. There was bruising over the right iliac crest and over the right calf and deep abrasions over the right ankle and he required extensive blood transfusions; an angiogram was performed and revealed a haematoma over the right temporal lobe of the brain which required removal by operation. He had severe concussion and a fractured base of the skull was diagnosed so that as early as the 13th of March 1973 the neurosurgical specialist was of the opinion that he might require institutional care for the rest of his life. An operation known as a temperal paramedium tarsorrhaphy had been performed on his left eye to ensure healing of the left eye and also the cornea. This examination required stitching of the eye lids to keep the eye closed. He has at present corneal scarring on the lower 1/3 of the cornea. The brain injury caused a nerve palsy resulting in a divergent squint in the right eye. Due to the impairments to the eyes he suffers from multiple vision to combat which he wears a patch on one eye. Skeletal traction was required for treatment of the left femur. A medical board held at Queen Elizabeth Hospital on the 23rd of February 1974 found that he had sustained the following injuries: (1) A fracture of the base of the skull with intracerebral haematoma; (2) A fracture of the shaft to the left femur; (3) A fracture and dislocation of the right elbow; (4) A degloved injury of the right ankle and (5) Laceration of the left cornea. Despite treatment in hospital he had remained bed ridden and mentally dull for many months. He showed marked impairment in memory and intelligence. There was paralysis of the right third cranial nerve and impairment of vision due to the right divergent squint and the left corneal scarring. There was clumsiness of both hands and while the fractures of the left femur, the right elbow and the right ankle had healed there was some stiffness of movement. In order to walk he required a stick and the assistance of another person. The board considered that he was disabled to a degree that he needed continuous attention and substantial help from others to cope with daily life. 9. On the 4th January 1975 he was examined by Dr. Wedderburn, F.R.C.S. Edinburgh. Dr. Wedderburn found that he had extensive brain damage affecting his memory and intellect and causing a partial spastic paralysis of the right leg and arm. The brain injury, he found, had given rise to a form of epilepsy. The plaintiff had to be told before he could remember to pass urine, when he failed to remember a minor attack of epilepsy would result in the course of which he would wet his clothes. He could hold a bowl of food and use chopsticks or a spoon but could not put food in the bowl; it had to be handed to him. He complained of pain from the scar left by a tracheotomy. The skull had been opened and as a result there were two small areas where the bone was deficient but this did not form a hazard from the point of view of further injury. He had good movement of the right arm and the left leg the fractures being well healed and in good alignment but the right ankle was fixed. In his report Dr. Wedderburn remarked that "his mental age and capacity for constructive thinking is that of a child of 2 years". Having heard the plaintiff giving evidence and noted the way in which he met questions in cross-examination he retracted this opinion and explained that the plaintiff presented a very different picture in the witness box to the picture he had presented in the surgery; he did not however retract the opinion that the plaintiff suffered from epilepsy caused by the brain damage although I concluded from his evidence as a whole that he had some doubts on this score. He did not however express any doubts about his conclusion that:
I find that the plaintiff is not now in physical pain but he clearly suffers from profound discomfort and disability from which he will never recover. His expectation of life is reduced to about the age of 35 or 40. He is clearly well aware of his disabilities. It is not disputed that he has had the following operations: (a) The carotid angiogram: (b) The brain operation to remove the haematoma; (c) The tarsorrhaphy; (d) Extensive skin grafting or that he was in hospital from 1st December 1972 to 13th August 1973 alternating between Queen Elizabeth Hospital and Kowloon Hospital. On the 13th August 1973 he was sent to Kwun Tong Rehabilitation Centre but was referred back to Queen Elizabeth Hospital on 2nd October 1973 and transferred to Kowloon Hospital on 6th October 1973. He was discharged home on 20th November 1973. So that for a year less 10 days he was either in hospital or the rehabilitation centre. 10. In considering the question of quantum I should like firstly to express my appreciation of the assistance I have had from counsel in this case. The research that has been done and the authorities quoted have been exhaustive, relevant and helpful. Other decided cases as to quantum save insofar as principles are enunciated are but a very rough guide for it is a truism to say that no two cases are the same. This applies particularly as far as English cases are concerned for one must have regard to the local environment. In Singh v. Toong Fong Omnibus Co. Ltd.(5) it was stressed that only if cases bear a reasonable measure of similarity may it be possible to find in them a reflection of a general consensus of judicial opinion and:
The need to have regard to the environment was also recognised by Mr. Registrar Silke in his assessment in O.J.A. No. 536 of 1972 and I note that in the course of an interesting commentary in the case of KWAN Yuk-lau v. KANG Sing-ho O.J.A. 718 of 1970 contained in H.K.L.T. 1975 at page 90 when the learned commentator refers to recent cases in England he does so with the following caveat:
In the same commentary when discussing the benefits that may arise from calculating awards with reference to their components the following passage occurs :
These benefits are no doubt considerable; every trial judge must wish to afford the appeal court sufficient material to enable it to test his reasoning; every trial judge is anxious to afford guidance in such matters as quantum to practitioners and none desires a litigant to leave his court feeling that the trial judge has not tried to assess his loss with due consideration. This is not however to say that judicial intuition is another name for guesswork or that the global award is not in the long run superior to any "acturial method". For the latter may involve pulling not one but several figures out of a hat and the possibility of compounding error. In the 3rd Ed. of Kemp and Kemp on Damages when discussing how prospective loss is assessed in practice the learned authors having noted that "acturial evidence is very rarely adduced at present" state in a foot-note at page 28:
and again at page 32 in dealing with the case where the plaintiff is a youth who has not commenced on any career the learned authors state:
11. However, in arriving on this global sum one must be careful to consider all the factors that may enhance or mitigate damage and to have regard to the environment, to the "social economic and industrial conditions" existing in that environment and to any reflection of the general consensus of judicial opinion that may be ascertainable so that one may ultimately arrive at a figure "which will make good to the sufferor, so far as money can do, the loss which he has suffered ,so that although one may not necessarily need to assign a specific figure to each "head" one must consider each. If one is to assign a figure to each "head" one must bear in mind the warnings given in Monkman 5th Ed. at 116 and 117 where the learned author comments:
and again
S. v. Distillers Co. (Biochemicals Ltd.) (6) was a thaladomide case in which the question of the quantum to be awarded to children born suffering from gross impairments was exhaustively considered. [I would remark in passing that from the facts in that case it clearly appears that in England where in certain cases the local authority is under a duty to provide and pay for special educational treatment and where schools for handicapped children are available, the facilities for rehabilitation seem superior to those in Hong Kong.] 12. I do not however cite the case for that proposition, nor to discuss the figures awarded by way of damages which when compared with the levels of awards made in Hong Kong generally seem on the high side, but for the following general statement of the law:
The instant case is of course not to be compared with a thaladomide case where the victims are victims from birth but the propositions emerging from H. West & Son Ltd. v. Shephard apply. 13. The bodily injuries themselves are a deprivation. The deprivation brings the same three consequences with it the loss of prospective earning capacity, the expense of having to pay others to do what he could otherwise do himself and the loss of amenities. Here no limbs have been lost but the degree of control over them has been gravely reduced, the duration of the deprivation has been reduced (because of the loss of expectation of life) but the degree of awareness of the deprivation remains high. The plaintiff is clearly capable of understanding that he is not the same as other youths and that he will never develop as they do. Mental anguish is therefore added to the injury. 14. Any one of the physical injuries, the broken left femur and resulting traction, the degloved injury to the right foot and resulting grafting, the broken elbow and resulting operation, the corneal injuries and resultant stitching of the eye lids, the divergent squint and the multiple vision resulting in its being necessary to wear an eye patch, the fractured skull and operation for removal of the haemata with resulting epilepsy - taken by itself might result in a substantial award. It would clearly be quite wrong to consider them individually and apportion a sum for each for, if one did, overlapping would inevitably result. I must and do consider them as if they were one, As to the past and present pain and suffering I must take into account the many unpleasant operations endured with their painful and distressing aftermaths. The plaintiff has been a year in hospital. Since his release he has been more or less confined to the small room occupied by his family receiving constant attention - a virtual prisoner. He has been to various rehabilitation centres in particular that in Kwun Tong. These are, I am informed, run on somewhat spartan lines and although he may have made and may make some response to the treatment available, he is incurable and knows it. Again there is the question of prospective pain and suffering and loss of amenities. He has been deprived of almost all that gives joy to life - of the sports natural to a youth - in which he obviously formerly took pleasure - of all intellectual endeavour, of all normal social activity, of the company of boys and girls of his own age, even of visits to the cinema, and of all prospects of a happy marriage. He is, indeed fortunate to have had and to be in a position to expect the constant care and attention of his grandmother and of his mother who impressed me by her practicality but he will need that constant care and attention even for those offices which a mother performs for her baby. 15. Again he will never be in a position to work, his earning capacity is nil. His mother has other children to look after and her own life to lead, so that it will be no necessary to employ at the very least a part time servant to look after him. I should have thought it very difficult in Hong Kong to obtain such services for less than $500 per month. I must also take into account the prospective loss of expectation of life which to some extent can be regarded as a mitigating element. The fact that on the evidence there are little suitable facilities in Hong Kong for the rehabilitation of people who suffer the type of disabilities suffered by the plaintiff, I feel I must regard as largely neutral. The suffering of victims may be increased by the absence of such facilities but in terms of hard cash that absence may mean that expense is not incurred when it might otherwise be. 16. In a case such as this one is constrained to remind oneself that an award must be "fair compensation to both parties" "a fair and moderate value has to be placed on the disability". Local similar cases are, despite the labours of counsel, hard to come by. In KWAN Yuk-lau v. KANG Sing-ho O.J.A. 718 of 1970 Cons, J. made a global award of $150,000 to a woman in her mid thirties who was rendered incapable of further work - she had been making $1,200. She was rendered a simpleton by the accident could not get about unaided suffered from symptoms suggesting epilepsy but the judgment is silent as to continuing pain or awareness of her plight. This and the age of the victim indicate considerable distinctions between that case and this but it is the nearest local case available. In NG Kam v. TSANG Tak-kuen & Another O.J.A. 232/71 reported at (1974) H.K.L.J. 203 a sum of $130,000 was awarded to a man of 48 who suffered head injuries and sundry abrasions and fractured ribs. The figure of $130,000 included $67,200 for loss of future earnings and the plaintiff was a result of the accident "virtually a human wreck". His injuries produced a personality change; he would beat and tie up his children and attack passing cars but did not recollect these aberrations. He was at times incontinent and required constant attention. This case is scarcely comparable but both cases indicate a tendency to award damages that are appreciably less than one would expect in England. Bringing to bear on the problem such judicial experience and intuition as is available to me I have come to the conclusion that the proper figure to award assuming full liability is $270,000. 17. Having as it were, plucked this figure out of the hat of my experience and intuition I feel it might help to try and test its accuracy by reference to its possible components. 18. For past present and future pain and sufferings and loss of amenities (heightened as the latter are by the insight which the plaintiff has into the differences that exist between the youth and man he might have become and the person he is as a result of the accident) I consider a sum of $90,000 to be fair compensation insofar as money can compensate. 19. When I come to loss of future earnings I fear I am compelled to resort again to picking figures out of the air. The plaintiff was an average student at a secondary school, I think he would be unlikely to have matriculated. On leaving school at the age of 17 (his present age) he would probably have got a clerical job at about $700 per month. I appreciate that I am obliged to ignore any inflation factor (Young v. Percival 1975 1 W.L.R. 17) but even doing so I should have expected his earning capacity to have considerably improved as he became more mature and experienced. On average then I should have expected that his earning capacity would have been not less than $900 per month. The multiplier having regard to his present reduced life expectancy should be 15, a figure agreed to by both parties. The cost of attention I assess at $500 per month and use the same multiplier. This gives a figure of $252,000 which after deducting 20% for immediate payment and rounding off the figure gives us a result of $200,000. To this I would add $1,500 for loss of expectation of life giving a total of $291,500. I don't regard the additional $21,500 as a conclusive indication that my figure of $270,00 is too low. 20. It remains to consider special damages. The following figures are agreed:
An item of $15,300 being the loss of earnings suffered by the mother of the plaintiff who gave up her job at which she was earning $900 per month to look after the plaintiff while he was in hospital and after he returned home, is claimed. It was a natural thing for her to do but I don't think it would be reasonable to require the defendants to meet this sum in full. When his condition had stabilized she might have returned to work and have made arrangements to have him looked after on a part time basis by a paid servant. I will allow 6 months at $900 and the remaining 10 months at $500 making a total of $10,400. Special damages then come to $13,598. 21. The resultant total of $283,598 must because of contributory negligence be reduced to $170,158.80. The sum of $54,000 being 6/10ths of the sum awarded for pain suffering and loss of amenities will carry interest at 8% per annum from the 22nd May 1974 and the proportionate amount (6/10ths) of the special damages will carry interest at 4% from 1st December 1972. with costs to be taxed.
Representation: Mr. F.H. Wong (W.I. Cheung & Co.) for plaintiff. Mr. Wright (Ngan & Wong) for first and second defendants. (1) (1966) 3 All E.R. at 399. (2) (1962) H.K.L.R. 595. (3) (1959) 3 All E.R. 609. (4) (1932) All E.R. at 83. (5) (1964) 3 All E.R. 925. (6) (1969) 3 All E.R. 1412. |