Kwan Ka-pui v. Lai Kam-tong and Another

HCA001277/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1277 OF 1976

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Coram: Leonard J.

Date of Judgment: 29th November, 1976.

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JUDGMENT

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1. The plaintiff in this case was injured in a road traffic accident which occurred on Texaco Road near Tai Wor Hau Road on the 4th of February 1974 at about 5.20 p.m. It was common case that at the time of the accident he was walking across Texaco Road at a place at which a partition running down the centre of the road was interrupted so as to allow pedestrians to cross, the place where they were to cross being marked out by means of studs on the road surface. The plaintiff, a man of over 60, was walking across with a number of others when a bus the property of the second defendant driven by the first defendant as servant of the second defendant came on the scene. The others who were walking across managed to escape but the plaintiff was knocked down. The bus driver was in due course charged with careless driving and he pleaded guilty.

2. It was not contended before me that the plaintiff was not liable in negligence but what was urged was that the plaintiff was guilty of contributory negligence it being the case for the defendants that throughout the time he was crossing the road he was looking not in the direction from which traffic would come and from which the bus did come but in the other direction. The first defendant gave evidence to this effect. He said that he approached the studded crossing at about 13 to 14 miles per hour and when he was about three bus lengths from it the victim was starting to walk from the central island. There were then about five persons going from his right to his left. He saw the plaintiff among the group and slowed down, estimating that they had enough time to cross the path of his vehicle. Then, he claimed, he noticed that the plaintiff had stopped and was looking in the other direction so he sounded his horn but even then the plaintiff did not look in his direction. Thereupon he swerved to the right a little to pass behind him but despite all that, he knocked him down. I found him to be a most unsatisfactory witness. I was unable to believe his evidence that at the time of the collision the plaintiff was looking in the other direction or that he had swerved to the right. A plan of the road prepared after the accident showed that the bus was not in the slow lane of traffic as claimed by the defendant but straddling the fast lane and a middle lane but the greater part of it was in the fast lane. From the position of the bus as depicted any swerve would have been to the left rather than to the right. Again the position of the bus - it had passed wholly over the crossing and come to rest over nine feet beyond it was inconsistent with the driver's account. When confronted with the plan and while under cross-examination the first defendant was an extremely unsatisfactory witness. I could not believe his story and had no hesitation in holding that he had failed to discharge the onus of proving contributory negligence on the balance of probabilities. Accordingly I held that the defendants were solely responsible.

3. The plaintiff's injuries were unfortunately extremely serious. He was admitted to Queen Elizabeth Hospital after the accident where he was x-rayed. The x-ray showed linear fractures of the left temporo-parietal region of the skull. Although conscious when admitted he deteriorated rapidly. A brain operation was performed. A subdural haematoma was found and decompression effected. He gradually recovered from the operation physically but suffered from dementia. After his discharge he attended an out-patient clinic frequently. Apparently there has been some suggestion of slight improvement since but he now has the mentality of a child aged 2 or 3. To quote from a report prepared by Dr. Hunter, a neurologist :

"He never asks questions. Sometimes he will speak a few words such as a greeting before eating, or when someone is leaving. There is no attempt to call even his wife by her name. He seems to follow the trend of some conversations but will rarely do as he is told except for such simple command as 'sit'. His sleep habits are very irregular and he may sleep anytime for a few hours. In the morning he may or may not get out of bed. Sometimes he can dress and undress unaided. He is able to eat unaided with chopsticks but he is not able to know when he has had enough food and just keeps on eating. He will usually eat without being asked. When asked a simple question sometimes he may shake his head in reply. He does not show any episodic disturbed behaviour: He never shouts or strikes people. Before the accident he was of very even-temper but not since the accident. There is no difficulty with vision, hearing, taste or smell. There are no symptoms referable to other systems."

As a result of his examinations Dr. Hunter found the plaintiff was able to give his name correctly, stating his age to be about 60 years:

"He is not able to name common objects shown to him such as pencils or combs nor does he give any clear indication that he knows their use. He does not recognise a Hongkong Five Dollars bill but names a ten cents and a one dollar coin correctly."

There was a complete loss of smell sensation to three aromatic test odors but apart from this Dr. Hunter in his report does not point to anything of a physical nature which is abnormal other than the injury to the bones of the skull caused by the accident and the subsequent operation. The mental deterioration is however substantial. The plaintiff is out of touch with his environment has virtually no memory function although this state is variable and it is only at times that he can understand and reply to simple questions. He eats without knowing when to stop and he sleeps irregularly. He is unable to care for himself and requires constant care and attention for all his needs. According to Dr. Hunter, there remains at least a 50% chance of epileptic seizure development. Dr. Gilchrist a consultant psychologist arrives at similar conclusion in his report. He found the plaintiff

Tests performed by Dr. Gilchrist suggested a mental age of between 2 and 2 ½ years. Dr. Gilchrist was of the opinion that

"This man is clearly severely sub-normal, functioning at a totally ineducable level. He needs at present, and is likely to continue to need, close custodial care, which may well in time include a considerable medical and nursing commitment ....although there are variations in his level of awareness, the differences are in reality only marginal."

This medical evidence was, by agreement between the parties, placed before me in the form of reports. I cannot regard this as a very satisfactory method of presentation and feel that my task would have been rendered easier had I had the advantage of hearing Dr. Hunter and Dr. Gilchrist examined and cross-examined. I should have welcomed evidence statistical or otherwise as to his probable life span had he not been injured and how this has been affected by his injuries together with evidence as to the likelihood of complications setting in (particularly epilepsy) and their possible and probable effects and in particular the views of the doctors as to whether in his more lucid moments the plaintiff is conscious of what he has lost. On the evidence before me I must conclude that he is not now aware of his loss even in his more lucid moments.

4. The plaintiff's wife struck me as being a sensible woman in no way tempted to exaggerate the seriousness of the plaintiff's condition. She is a woman of 61 years of age and lives in a resettlement estate with her daughter aged 22 who is working and is the sole bread-winner and with the plaintiff. She confirmed that the general condition of the plaintiff was as I have indicated. I also heard the evidence of the manager of the Chueng Luen Native Products Ltd. of Tsuen Wan the factory at which the plaintiff formerly worked as a cashier. He said that before the accident that is in February 1974 the plaintiff was earning a basic salary of $450 per month plus an allowance of $80 per month presumably for cost of living and was provided with two meals a day the company paying a caterer $90 per month for each employee. He had four free days in each month and at Chinese New Year could anticipate a bonus of $450. The manager described him as a cautious employee who worked very carefully, a quiet person who had not many friends and who worked every day from 10.00 a.m. to 10.00 p.m. He could not tell me the plaintiff's exact age but he was clearly over 55 and since 1974 it had become the practice of the company to retire its workers at the age of 55 subject to re-employment possibilities. Cashiers at present employed by the company are receiving salaries in the region of $700 per month. After the accident the plaintiff received his salary up to 31st of May 1974. The wife told me that prior to the accident the plaintiff's state of health was very good. He had not bad to see doctors. Her own health was until recently very good. She described the plaintiff as a strong and kind person, who did not have many friends. If he was off work he stayed at home. He had no hobbies. For amusement on days off they might go out to tea-houses.

5. The picture which emerges then is that of a somewhat unimaginative hard-working and conscientious person who had perhaps not much joy in life but at the same time was without any great misery and indeed had achieved a considerable degree of tranquility. The post-accident picture is very different for according to the wife

"He has become a child who will not listen to directions. I have to help him in for example taking a bath. Even if you have water ready he would not know he was to bathe. I have to take off his clothes. When he sees food he will just eat it. He would not know whether it was cooked or not. I have to tell him when to stop and when he realises he will walk away and after a few minutes he forgets and trys to take food to eat again. He does not say much in a day. I have never had any indication from him that he remembers. I say little to him. I do not feel I want to talk to him. At times he understands at times he does not. At times when I tell him to take off dirty clothes he lets me take them off but at times he would hold on to his clothes and not let me take them off. I feel strange in having to look after him. I have to see a doctor once a month. I just lock him in the room and ask the neighbours to look in from time to time."

She was quite adamant that she did not wish him to go into a nursing home or other similar establishment though she has to do all the house work and to look after him. Her health has been good but she has recently been found to suffer from diabetes and it is clear that if her health disimproves or if he gets attacks of epilepsy he will require continual nursing of a professional or semi-professional kind. It is against this background that I must approach the question of assessment of damages.

6. The first matter of principle which I consider I must bear in mind is so obvious that there is some danger of its being overlooked. It is that it is the plaintiff who is to be compensated by an award and not the plaintiff's wife. A wife is not yet entitled to damages for loss of consortium nor is this wife to be compensated for the destruction of her marriage and the very great burden placed on her of having to look after the plaintiff. My primary task is to put a monetary value on what the plaintiff has lost - even though he be not conscious of the loss and add to that a sum to cover the eventuality of his requiring nursing assistance of a professional or semi-professional nature. Of the cases quoted to me that of Jones v. Greem a truncated report of which appears in Kemp & Kemp 4th Edition Vo1. 2 at 3-020 appears nearest to the facts of the present case. The plaintiff in that case was a widower of 60; he suffered a fracture of the skull resulting, as in the present case, in dementia.

"His memory was badly affected and his ability to think clearly, express himself in clear language, make his wants known and handle abstract ideas was greatly limited. He needed, and would need for the rest of his life constant supervision and help even with simple everyday tasks, such as dressing, washing and managing his personal hygiene. He had very little awareness of his condition but might be aware that he was confined to a secure mental institution, where he would spend the rest of his days. His expectation of life had been affected by the accident but to what degree was hard to say. All one could say was that in general people suffering from organic dementia had a life expectancy several years shorter than that of someone in normal mental health."

There, an award of $11,000 by way of general damages with £500 for loss of future earnings although regarded as on the high side was undisturbed on an appeal heard in February 1972. Our case although markedly similar is distinguishable in at least three respects. The plaintiff there had no relative to look after him and was confined to a secure mental institution. In our case he has a loyal wife and daughter who do not wish him to be so confined. Secondly in the case cited the plaintiff apparently retained some awareness, in our case apparently he retains none - his loss may be the greater but his mental suffering the less. This second factor caused me to believe that some assistance might be gained from those cases in which what is described as "total wreck" had occurred. I do not now so consider. Thirdly in our case the possibility of epilepsy is to be considered together with the possibility that through ill-health or otherwise the wife may be unable to continue her ministrations and expensive and regular assistance obtained from outside. I have had no evidence as to whether such assistance is available nor what it would cost - although I think I might take judicial notice of the fact that today the services of a full-time amah to whom accommodation is given would approach $900 per month.

7. I do not however consider that any great purpose is to be served by dividing up the global sum which I propose to award for pain and suffering and loss of amenities. Maintaining as just a balance between the parties as I can and keeping in mind all the factors I have mentioned and after consideration of the various cases cited to me I consider the correct global sum to award to be $110,000. This sum includes any loss of future earnings. I do not deal with them separately because I find it unreal so to do, because I have not sufficient information as to life expectancy and because of the danger of overlapping. Special damages other than loss of earnings are agreed at $1,270. As to loss of earnings his earning capacity at the time of the accident was $620 per month and he was paid up to 31st May 1974. The writ was issued on the 25th June 1976 - just 25 months later so that at first sight the sum to be awarded for loss of earnings should be $15,500. However there was evidence that he would have been required to retire in March 1975 with 3 months basic salary but might have been re-employed for a short period. I think I should award for loss of earnings.

I consider that the possibility of re-employment is so uncertain that it is not something I should take into account when assessing special damages which I accordingly fix at $9,270.

8. There will therefore be judgment for the plaintiff with costs for the sum of $119,270 the sum of $110,000 to carry interest of 8% per annum from the date of the issue of the writ and the sum of $9,270 to bear interest at the rate of 4% per annum from the date of the accident i.e. 4th February 1974.

Representation:

Mr. Patrick Fung (Vincent Lo & Co.) for plaintiff.

Mr. Ronny Tong (Johnson Stokes & Masters) for both defendants.