Yeung Pui Yee v. Tam Siu Kai

HCA001536/1972

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

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Coram: Mr. Registrar Silk in Chambers

Date of Judgment: 14th February 1974.

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DECISION

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1. This is an assessment of damages in respect of a young girl, aged about 2 ½ at the time of accident and now aged almost 5, on foot of an interlocutory judgment entered against the defendant on the 17th October, 1972 for damages to be assessed by the Registrar of the Supreme Court with costs in the cause.

2. Mr. Charles Ching, instructed by Peter Mo & Co., appeared for the plaintiff and Mr. Martin Lee, instructed by Deacons, for the defendant.

3. On the 31st July 1971 at about 11.45 a.m. the child was knocked down and run over by a one and one half ton lorry driven by the defendant. As a result she incurred severe injuries from the effects of which she will suffer for the rest of her life.

4. She was admitted to the surgical ward of Queen Elizabeth Hospital on the same day in shock.

5. There were bruises and abrasions over the whole of the right side of her body, with lacerations over the right thigh and knee areas.

6. She was X-rayed and shown to have a fracture of the right lower ribs with haemopneumo-thorax formation and a fracture of the pelvic bone.

7. A laparotomy was carried out, the right lobe of her liver was found to be lacerated and with blood in the peritoneal cavity. Repair surgery took place. Her right chest was drained.

8. On the 5th August a thoracotomy was carried out as the haemopneumo-thorax was not responding well to chest drainage.

9. Paraplegia was noticed after approximately one month - before that she had been confined to bed under treatment and immobile - and a Aeurosurgeon was consulted. The thoracolumbar spine was found to be deformed.

10. She was transferred to the orthopaedic ward on 19th October, 1971.

11. Between her admission on the 31st July and her transfer on the 19th October she was treated and examined and I have had exhibited the Progress Sheets on which is included a myelogram - or to be more correct a failed myelogramme (because of dye in the extradural space) and one on the 1st October which was successful and resulted in no compression or blockage being found.

12. A medical report dated 10th November, 1971 (Exhibit E) records her as suffering from kyphosis, or ourvature of the spine, at the level of the thoraco-lumbar region but no fracture. Dr. Fang has given it in evidence that there is an angle to the spine at the level T12 L1.

13. The report continued "Her paraplegic condition shows progressive improvement on intensive physiotherapy treatment" but regarding permanent disability it is difficult to assess.

14. She remained in hospital for a year and has spent a short period in hospital since.

15. It is now just three years after the accident and it is agreed that her paraplegic condition is permanent. The dispute, if one may call it that, between the medical witnesses is as to how great is that disability and the physical cause of it.

16. Dr. A.J. Dyer, plaintiff's witness, first saw the child on the 9th October, 1973. On examination he found her to be of normal intelligence for her age, co-operative, though silent, in the course of the examination and able to walk a short distance with calipers and elbow crutches. He noted scars on the back, chest, abdomen and right thigh. There were also scars of a thoracotomy and of abdominal incisions. He has said in evidence that these scars are minimal.

17. He further found a marked thoraco-lumbar kyphosis and spastic paraparesis of the lower limbs involving the hip, knees and ankles. There was no muscle wasting and no apparent sensory loss. Both feets were in a degree of equinus - or downward pointing - and there was a marked loss of motor power in the lower limbs.

18. There was no evidence of residual bone injury, other than the kyphosis, and the fractured pelvis had united. He estimated her disability from the residual paraparesis to be 90% - this percentage being a Workman's Compensation percentage.

19. I should interpolate here that I have seen the girl twice - the first occasion was on the 5th November when she was brought into Chambers and was asked to move herself as best she could using both calipers and crutches. It was noted that her method of walking was to swing herself along on her crutches. She was co-operative, did not seem unduly perturbed by her obvious disability, intelligent for her age but somewhat overcome by her surroundings.

20. On the second occasion, which was the 21st January, 1974, she was again brought into Chambers and was asked by Dr. Fang and by her father and mother, both of whom were present for the purpose, to attempt various things such as lie flat on some chairs and raise herself upright, lift her leg and other matters. She appeared very much more overcome with shyness and, while she moved her toes, she but very slightly lifted her leg and raised herself only with assistance from Dr. Fang. She was asked to attempt to walk without the aid of either calipers or crutches while having her hands held by Dr. Fang and this she found difficult in the extreme. Dr. Fang, to whose evidence I shall revert later, stated that she had been more co-operative in his consulting rooms and somewhat more active.

21. From my views of the child it appeared to me that she might well, given confidence and constant intensive physiotherapy and provided her parents do not cosset her overmuch, make some sort of life for herself in the years to come. Though this is in no way to diminish the very great difficulties she will experience in life and the severe disabilities from which she will suffer throughout that life.

22. She has, as part of that disability, difficulty in controlling her bladder and bowel though this has improved. Her father had informed Dr. Dyer that she tended to incontinence if she has to wait more than half an hour and she is constipated, her bowels being opened every four to seven days. Her mother, who gave evidence before me, stated she can now indicate her desire to micturate and she was continent for at least 45 minutes during one of her examinations by Dr. Fang. Her bowel movements are now not so difficult. In the course of the adjournment between the 5th November, 1973 and 21st January, 1974 she was admitted to Duchess of Kent Orthopaedic Hospital and Convalescent Home and there again examined, of which examination both Dr. Dyer and Dr. Dwyer gave evidence. Her urine was found to be infected though there were no signs of a general bodily infection - that is no fever or complaints.

23. Dr. Dyer was of the opinion that this urinary infection could be one which might affect the kidneys and in turn lead to renal failure from which she might eventually die. If it is necessary to empty the bladder, it would appear that when she micturates she does not effectively do so, by the use of a catheter periodically then the more the use of the catheter the greater the risk of infection. It was Dr. Dyer's opinion that given a life span of 70 years her expectation of life could be reduced 30% - 40%. Dr. Fang emphasised the lack of clinical signs of infection and tended to diminish the risks envisaged by Dr. Dyer. This possibility is but one of the rumerous imponderables which have to be weighed in this most difficult assessment.

24. In parenthesis I would comment here that, if our system of law so allowed, this would be an ideal case for a form of interim payment with further examinations in, say, two and one half years and then in five years and possibly in ten years to assess the physical, mental and social difficulties and conditions of this unfortunate child. Were this so the court would be in a much much better position to do justice. This being not so I must, on the evidence before me now, do the best that I can becoming in the process a form of looker into the future.

25. The fundamental medical cause of her present condition remains a matter of doubt. Dr. Dyer is of the view that there was a crush injury with immediate reduction but leaving a residual effect. In coming to his conclusions, both as to the cause and as to the immediate and the continuing effect, Dr. Dyer had the benefit of one further examination between the adjournment on the 5th November and the resumed hearing on the 21st January. On the 17th of January he saw the child in his office. This was the occasion on which he found pyuria.

26. Dr. Fang has seen the child on five occasions, 8th August, 1972, 15th August, 1972, 15th September, 1972, 29th June, 1973, and 6th July, 1973 - in addition he has seen her either in or outside these Chambers on the 5th November and the 21st January, as also, of course, did Dr. Dyer.

27. I have had produced to me his reports dated 16th August, 1972 (Ex. E) the 20th July, 1973 (Ex. H) and the reply he gave dated 19th March, 1973 (Ex. J) to a letter (Ex. I) addressed to him, under the mistaken impression that he was their witness, by the plaintiff's solicitors. He felt in August 1972 that the prognosis was "fairly good" and that the child could be ambulant in the future, perhaps with the aid of calipers and crutches. He had in mind the very young age of the child which would allow for "remarkable regenerative power".

28. In July 1973 he thought her to have made noticeable progress, improving in muscle power. He was of the view that this indicated the possibility that the spinal cord injury "may not be entirely irreversible". He thought her likely to make further improvement especially with continued physical therapy. Her prognosis then was fairly good possibly to the extent of being able to walk without braces or calipers but with the aid of a pair of canes.

29. In the course of his evidence before me he amplified his reports and expounded upon his other examinations, he also, and at the request of Mr. Ching, asked the child to perform various actions. The child was apparently more co-operative with Dr. Fang than with other doctors, a factor I bear in mind whilst evaluating the evidence. It was his view that the child now had better control of her bladder and bowels but that her paraplegia was quite severe. He agreed with Dr. Dyer that, on a Workman's Compensation basis, disability would be 90% to 95%. He explained, and he illustrated his explanation by showing me X Ray photographs (not produced as exhibits), that she had both a smooth curve kyphosis and also angular kyphosis; a tiny angular curve at the level of the 12th thoracic vertebra - the lumbar vertebra.

30. His opinion was that this kyphosis would improve in the long term by the strengthening of the muscles which support the spine. He agreed that the child's life expectancy would, from her general condition including the urinary "infection", be decreased by about 30%.

31. He was of the view that she could have sex life but could not say if she would derive pleasure there-from feeling that he was not an expert on that particular subject. I intervened at this stage requesting counsel to go one stage further in the matter and to raise the issue of children. Dr. Fang was of the view that she would be capable of conception. He was aware of people who were completely paraplegic at this level who had a sex life, conceived and bore children.

32. On the question of the levelling off of her condition he commented on a paragraph in Dr. Dyer's report of the 12th October, 1973 (Ex. F) that the levelling off referred to by Dr. Dyer could be due to two main reasons. One possibility being that she had stopped her therapy treatment resulting in her muscles becoming weak, the other possibility being that she had in fact recovered to the extent that she will recover.

33. At a later stage I acceded to Mr. Ching's request that he allowed to recall the mother, Chan Sau Lan. I accept that to recall this witness at the time when she was, that is after the conclusion of the evidence for the defence, is outside the normal rules as to the giving of evidence. But, subject to further cross examination by Mr. Lee, which ensued, I took the view that the Court should be as fully aware as possible of all the factors in this case. It was the mother's evidence that the girl had continued her therapy up to the time of the hearing.

34. The two main issues to be resolved are just what physically happened to the child as a result of impact and second what is the state of recovery and has this reached a level now which will not materially improve in the future.

35. As to the first: As Mr. Ching put it in cross examination of Dr. Fang, the dispute between that witness and the medical witness for the plaintiff is that Dr. Fang was of the opinion that the spinal cord may have been bruised and the others were of the opinion that the cord was grossly insulted it being moved and there being an immediate reduction.

36. Dr. Fang agreed and went on to state that neither view was supported by concrete evidence.

37. It had been suggested earlier that the final answer could only come from an autopsy.

38. I might interpolate here that I am grateful for the conciseness and the fairness of the evidence of all the medical witnesses which has been of considerable help.

39. The second question of necessity impinges on the first for the level of recovery has a bearing on the original cause.

40. Having in mind in the particular the evidence of Drs. Dyer and Fang, and the latter's answers in cross examination, and in the general all the evidence which has been put before me I have come to the view that the probability is that there was a severe insult to the spinal cord without any actual fracture or a full dislocation. I think the cord to have been displaced momentarily resulting in the condition which now pertains.

41. And that that condition has reached a level where no material improvement will occur in the future. This is not to say of course that the child will not be able to adapt herself to her condition, given constant treatment, and thus "improve her mobility and, in some degree, her prospects of a reasonable life within the confines which bind her.

42. Taking that which I have said as a basis for evaluating damages I have now to go on to consider what the quantum should be bearing in mind that, whatever it may be, mere money cannot give back to this child that which she has lost and that which she will be deprived of in the future.

43. I have noted awards set out in "Kemp and Kemp" 11th Cumulative Supplement to 3rd Edition, of similar, but not comparable, cases. In particular De Pommer v. Risch July 11th 1967 paraplegic - girl aged 8 - no sensation below armpit level - wheel chair for the rest of her life. Chances of university and of marriage: agreed damages $24,000 (unauthenticated); Antony v. Antony (June 22nd 1966) paraplegic - girl aged 6: no voluntary control of bladder or bowels - wheel chair for rest of her life. Certain no recovery of muscle power of sensation in lower limbs. Life expectation normal. $17,500 (unauthenticated).

44. Alexander v. Dispatch Motor Co. and Baker (February 12th 1971) girl aged 8 at accident, 17 at trial. Above average intelligence. Hopeless case. Epilepsy. Perpetual care and attention. Basically no mind at all. No reduction of life expectancy. No insight into her condition. Total damages of $35,000 made up of loss of earnings assessed at $11,000 with pain and suffering and loss of amenities at $24,000 (unauthenticated).

45. Swaly v. Willis (July 12th 1971) Boy aged 8 at accident and 11 at hearing. Intellectually bright. Multiple injuries. Intellect impaired. Agreed damages $17,322 (unauthenticated).

46. The above are not exhaustive and are, as I have said, by no means absolute comparables. They do however tend to show the trend of awards in England for very severe injuries. I also have in mind the rapidly altering value of currency.

47. This young girl, who lives in a cockloft with her parents, has had considerable pain and suffering as a result of the accident. She has lost the enjoyment of ordinary play with children of her age, and with her siblings, and will have greater deprivation which her condition will entail, as she grows older. She has an insight into her condition and is aware that she is different. She will have some difficulty in schooling though special schools are available. She will need assistance to dress and for toilet purposes for a long time to come. She will need constant therapy, both to help her come to terms with her condition and to keep her improvement where it is now. She will need, from time to time, to have braces or calipers changed. Her chances of marriage are very much reduced; whether she can have a happy sex life is open to some doubt as is her capability for child bearing - even supposed she ever gets married. At the very best she will only be able to walk if she is assisted by canes, and probably only with the assistance of crutches. She may not be able to do away with her calipers.

48. She seemed to me, and there is evidence of this, to be a fairly intelligent child who may, given the right psychological stimulus, adapt reasonably well. I formed the impression that she was, understandably, somewhat over mothered at the moment. How well she does in school largely depends on herself and her mental attitudes.

49. It was suggested she might go on to university but, even without her disabilities, this for someone such as she is problematical. She will be able to work with her hands provided she is seated and may well be capable of performing a factory or sewing job. This may well be roughly at the level to which she could aspire, uninjured, in the normal course of life.

50. There is no evidence before me as to the cost of any future treatment, schooling or appliances. There is no suggestion of major surgery. I bear in mind this is a lump sum payment.

51. Her expectation of life has been shortened by at least 30%.

52. Taking all these factors into consideration, bearing in mind the evidence which was given before me, allowing, as best I can, for the many imponderables with which I am faced and considering generally the environment in which she is to spend her life and its differences from an English environment - on which basis were made the awards I have referred to - I think that damages for pain and suffering and loss of amenities should be assessed at $230,000.00.

53. Special damages are agreed in the sum of $7,000 and there will therefore be an assessment of $237,000 total damages.

54. I will direct: that the payment of $7,000 be made to the father;

55. These will, following Jefford v. Gee (C.A.) 1970 2Q.B.D. 146, be interest on the special damages at the rate of 4% from the date of the accident to the date of today and interest at 8% on the general damages from the date of the service of the writ - 20th June 1972.

56. The plaintiff will have his costs of the action and of the assessment to be taxed.

57. Certified fit for counsel.

58. Dated the ...(illegible) day of February 1974.

Representation: