Cheung Pui Yuk and Another v. To Chi Ming
Read the full judgment text of HCA 778/1968 on BabelCite. This High Court CFI judgment was delivered on 8 November 1969.
1. This summons for a consent order for the assessment of damages, issued under the provisions of Order 37 rule 1(1) of the Rules of the Supreme Court, 1967, arises out of an action for damages against the defendant by the 2nd plaintiff and by the 1st plaintiff, who, for the purpose of Order 80 of the Supreme Court Rules, 1967, is a patient, and who sues by her husband and next friend, who is also the 2nd plaintiff. The action for damages is on account of the negligent driving of a motor car by
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HCA000778/1968 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 778 OF 1968 -----------------
Coram: Scholes, J. in Chambers Date of Judgment: 8 November 1969 ----------------- JUDGMENT ----------------- 1. This summons for a consent order for the assessment of damages, issued under the provisions of Order 37 rule 1(1) of the Rules of the Supreme Court, 1967, arises out of an action for damages against the defendant by the 2nd plaintiff and by the 1st plaintiff, who, for the purpose of Order 80 of the Supreme Court Rules, 1967, is a patient, and who sues by her husband and next friend, who is also the 2nd plaintiff. The action for damages is on account of the negligent driving of a motor car by the defendant in the early hours of the 25th October, 1965 as a result of which he caused or permitted his car to collide violently with another motor car being driven by the 2nd plaintiff and in which the 1st plaintiff was a passenger, by reason of which the 1st plaintiff sustained severe injuries and the 2nd plaintiff lost the society and services of the 1st plaintiff and was put to considerable trouble inconvenience and expense. 2. At the hearing of the summons agreed medical reports were admitted in evidence, which are contained in Ex. C1-C14, and which consist of a report by Dr. K.K. Watt dated the 27th January, 1966, a report by Dr. E.M.T. Cheung dated the 2nd February, 1966, three reports by Dr. C.M. Chung dated the 21st January, 1967, the 20th July, 1968, and the 3rd August, 1968, respectively, a report by Dr. H.S.Y. Fang dated the 2nd October, 1968, and a report by Dr. J. Hunter dated both the 8th November and the 11th November, 1968. 3. The plaintiffs called the 2nd plaintiff to give evidence and also doctors C.M. Chung, H.S.Y. Fang and J. Hunter, and Miss Harietta Wong, who used to visit the plaintiffs at their flat before the accident. 4. No evidence was called for the defence. 5. The 1st plaintiff was admitted to Queen Elizabeth Hospital in an unconscious state at about 1.35 a.m. on the 25th October, 1965, and was found to have a deep laceration of the right chin, about 1/2 inch long, communicating with the oral cavity, a laceration 1 1/2 inches long over the right parietal scalp with a haematoma around it about 3 inches in diameter, and a linear fracture of the left posterior parietal region of the skull. Later the same day she became conscious but was very drowsy and her conscious state gradually improved. She was transferred to Kowloon Hospital on the 8th November, 1965, for further convalescence and was discharged from that hospital on the 18th November, 1965, when she returned home, but was followed up in the Follow-up Clinic. 6. Dr. Watt saw the 1st plaintiff on admission to Queen Elizabeth Hospital and in his report states the physical injuries found (Ex. C1) and the patient was then the same day handed over to Dr. E.M.T. Cheung of the Neurosurgical Unit of the hospital. 7. Dr. Cheung found, which I accept, that the patient had concussion, a fractured skull and cerebral contusion, and stated in his report dated the 2nd February, 1966, that she was at present rather childish in her temperament and behaviour with some impairment of her memory, and that some permanent damage to her intelligence was expected. 8. The serious matter in this case is the damage to the 1st plaintiff's brain, which was caused by the accident of the 25th October, 1965. 9. The two plaintiffs were married in 1938 and he was then aged 26 and she was then aged 19. They have five children, four girls and a boy, the first two being born in 1939 and 1941 respectively and the last three in 1947, 1949, and 1955 respectively. They used to live in a rented flat, but in 1961 bought their own flat. 10. Before the accident the 1st plaintiff was a happy friendly capable person was a good housewife and good cook, and ran a happy home for her husband and children, which home she managed well and did so without a servant. She also entertained well. She also made dresses for herself and her children. She and her husband and children lived happily together. 11. As a result of the accident the 1st plaintiff suffers firstly from frontal lobe syndrome, a form of dementia due to injury to the frontal lobe of the brain and secondly from a paranoid state. Dementia means impairment of the intelligence on account of the death of cells of the brain, which once dead cannot be replaced or regenerated, and is irreversable. Paranoid means suspicious and hostile, and is a mental state without reason. The paranoid state can be relieved by medication. The result is that the 1st plaintiff's personality has changed. 12. The dementia causes a weakening of intellectual grasp, impairment of attention which is difficult to arouse and sustain, impairment of memory especially of recent events, poverty of thoughts and over-determined ideas which develop easily into delusions, indifference and lack of concern to people, excitability, labile emotional reactions which develop easily into laughter or violent anger which may last for hours, impairment of judgment and insight and lack of self-control. The 1st plaintiff has jealous delusions against her husband; her impairment of grasp and memory has made wrong ideas unamenable to logical explanation and persuasion, and the abnormal emotional response may lead to an inappropriate severity of anger and scolding which may last for hours. The emotional explosions and lack of self-control are not amenable to treatment. 13. The paranoid state causes the 1st plaintiff to be extremely suspicious, jealous and hostile towards people and particularly towards her husband. Suspicion coupled with lack of concern to people make her difficult to live with and as a result of the mental change she is very disturbing to people and very difficult to deal with. 14. One of the difficulties in management of the 1st plaintiff is the violent temper easily precipitated by trivial cause and on account of the dementia she cannot manage her own affairs and needs company, and it is possible that she may at some time have to be institutionalized in a government mental hospital. 15. As a result of the 1st plaintiff's condition caused by the accident she at times talks on the telephone for hours saying the same things over and over again, scolds her husband repeatedly, and in conversation sometimes repeats the same thing over and over again. Two of the main things caused by the dementia are lack of control and childishness, and the 1st plaintiff now has the mental age of a child of 12 years old, but not the same mentality as a child, having not the same control. It is dangerous to leave her alone in a house because she may by accident cause damage to herself or to property and is more liable to suicide than a normal person, and she needs the help of others. It is necessary for people to see she takes the right sort of food and in sufficient quantities, and not to make her angry, and to see that she does not think too much of suicide. She cannot be trusted to cook alone because she might do something dangerous to herself or others, but could help others to cook. She should not be trusted with scissors to cut cloth or dress-making, or with a sewing-machine to sew, because she may end up with an accident. Her mood can change very quickly or periodically. Usually she has retained insight. She knows that she is mentally sick and gets depressed over this, but her insight does not go so far as to appreciate explanations such as explanations of her actions against her husband. She cannot look after herself intelligently and does not pay proper attention to her body as a normal person does; she is liable to leave disease or injury till too late, and may not notice them, on account of her inability to look after herself. On account of this, and being more liable to suicide than a normal person, her life expectancy is reduced by about 50%, but if well looked after her life expectancy would be about 90% of normal. Her physical injuries will not affect her normal span of life. 16. After the 1st plaintiff returned home from hospital on the 18th November, 1965, the 2nd plaintiff engaged an attendant for a fortnight to look after the 1st plaintiff, and he also engaged an amah to do the work in the flat previously done by the 1st plaintiff and also to have somebody in the house with his wife after the attendant left, and he has continued to employ an amah for these purposes, sometimes at an increased wages on account of the increase of amahs' wages, until the beginning of July, 1969, when his amah left and since when he has not been able to obtain another amah. The second plaintiff in evidence said that the first amah was paid $200 per month plus the provision of free meals which in 1965 the 2nd plaintiff estimated to cost $5 per day or about $150 a month. The wage went up from $200 to $220 per month in about January, 1966, and in about April, 1966 from $220 to $250 per month. They were increased to $280 per month in October, 1966, and to $300 per month in February, 1967. The second plaintiff also said that in February, 1968, he had to employ another amah at the wage of $320 per month, and about May, 1969, her wage was increased to $340. The 2nd plaintiff had difficulty in retaining the services of amahs on account of the condition of the 1st plaintiff, and at times had to increase their wages to retain their services. The 2nd plaintiff estimated that the cost of an amah's food to-day, and since the 1967 disturbances, would be about $8 per day, say $180 per month. The 2nd plaintiff also paid the amahs the usual Chinese New Year bonus. 17. The following are some examples of the 1st plaintiff's behaviour since her return home from hospital. About 3 days after her return home from hospital, when she noticed the amah and attendant in the flat, she made a big scene and accused the 2nd plaintiff of interfering with her household arrangements. About 10 days later the 2nd plaintiff told his wife about the car accident, of which up to then she was unaware, and then the 1st plaintiff accused the 2nd plaintiff of arranging the accident to try and kill her, and the 1st plaintiff still alleges this. The 1st plaintiff also makes false accusations against the 2nd plaintiff of keeping a mistress and makes the same accusations to his friends. She also accuses him of being in love with people seen on the television screen. If she attempts to cook she puts the food on the stove and forgets about it. On one occasion the amah was cooking starch and the 1st plaintiff put it on her own leg causing blisters. On advice the 2nd plaintiff obtained a bitch to console her, and the 1st plaintiff then insisted on sleeping with the bitch in her bed. She then asked for a bigger dog and the 2nd plaintiff got her an Alsatian bitch. The 1st plaintiff then slept with the bitch and refused the 2nd plaintiff's company in bed. She is depressed for much of the time and sometimes shouts and cries and sobs. She is sometimes gay, but does not behave as a normal person when gay. On one occasion the 1st plaintiff attempted to kill herself with a pair of scissors, but the 2nd plaintiff prevented her from serious injury. The 1st plaintiff is also apt to wet her bed, and although she used to do so about once a week, she has now improved in this respect and only does so about once or twice a month. 18. The 2nd plaintiff is still intimate with the 1st plaintiff, but not so much as he used to be because she is rigid and does not respond, and sometimes refuses to let the 2nd plaintiff approach her, and she has suggested the 2nd plaintiff finding another lady to be intimate with or to try bestiality. 19. Besides the physical injuries observed by Dr. Watt on the admission of the 1st plaintiff to Queen Elizabeth Hospital on the 25th October, 1965, which I have already related, the 1st plaintiff attended the clinic of Dr. Fang regularly, from the 20th November, 1965, and during 1965, 1966, 1967 and 1968, and from his evidence and the surrounding circumstances I am satisfied the 1st plaintiff also suffered the following physical injuries as a result of the accident, namely a mild facial paralysis on the right, an injury to the left shoulder, an injury to the lower back, and an abrasion wound over the right elbow region. I am also satisfied on similar grounds that as a result of the accident the 1st plaintiff suffered from headaches. 20. The 1st plaintiff has no permanent physical disfigurement, and she is now physically fit and strong, except that she can only do half with her left shoulder of what she can do with her right shoulder. 21. I now come to three matters I have not previously mentioned, namely loss of sense of smell, loss of taste, and the occurrence of dizziness. 22. In regard to the first matter the loss of the sense of being able to smell, it is not in dispute I think that the 1st plaintiff has permanently for practical purposes lost her sense of being able to smell, and I am satisfied on the evidence that she has done so and has done so as a result of the accident. When given stimulae to smell, she can detect something, but is unable to say what it is, or whether it is a sweet smell or a sour smell. 23. In regard to loss of taste, I am satisfied on the evidence of Dr. Hunter, including his report, that the 1st plaintiff lost her sense of taste for practical purposes, in that when tested with stimulae she could detect something but could not say what it was, nor whether it was a sweet or sour taste, and I am satisfied on the evidence that she did so as a result of the accident, but taking the evidence and report of Dr. Hunter and the evidence of Dr. Chung together, I am not satisfied that the 1st plaintiff has lost her sense of taste permanently, and I do not think that she has done so. Dr. Hunter examined the 1st plaintiff twice in November, 1968, in regard to loss of smell and taste, and wrote his report, which is dated November, 1968, in regard to those matters, and he was then unable to say that the condition of loss of smell and taste was irreversable. He saw the 1st plaintiff again in July, 1969, but that was in respect of dizziness. He saw her again on the 12th September, 1969, and examined her, but said in evidence that he did not examine her then in connection with his report, which report deals with loss of smell and taste, and it thus seems to me that his evidence in regard to her loss of smell and taste relates to his two examinations of the 1st plaintiff in November, 1968. However Dr. Chung in evidence gave evidence to the effect that although the 1st plaintiff's cranial nerve for smell was broken, her cranial nerves had taste, and were undamaged. He said he did a complete check-up neurologically and came to the conclusion that the nerve for taste should be intact. He said he tested the 1st plaintiff for loss of taste on the 1st October, 1969, and his finding was that her taste is still there. He also said that when he put sugar on her tongue she said "sweet". He said that, although she can taste, her taste is not complete; she could tell the difference between salt and sugar, but her sense of taste is not completely normal, and is partly curtailed, and is not as sharp and acute as that of a normal person. He also said that it would have been possible for the 1st plaintiff's taste powers to have improved from November, 1968, to the present time, if Dr. Hunter had been right in his diagnosis in November, 1968, and her taste could come back little by little. I have accepted Dr. Hunter's evidence as to the condition of the 1st plaintiff's sense of taste in November, 1968, and I see no reason why not to accept Dr. Chung's evidence as to the condition of her sense of taste in October, 1969, which I have set out, and which I do accept as stating the correct position in October, 1969. 24. I next come to the matter of dizziness. The 1st plaintiff started having dizzy spells at the beginning of July, 1969, and visited Dr. Hunter about this on the 4th July, 1969, and he then put her in hospital for a few days for investigation; after Dr. Hunter's treatment her condition improved, but she does still have dizzy spells. 25. The further question which arises is whether or not the dizzy spells were a result of the injuries received in the accident of the 25th October, 1965; the dizzy spells first occurred a little over 3 1/2 years after the accident. About this during his evidence Dr. Hunter said:-
26. In examination in chief Dr. Chung said that he saw the 1st plaintiff on the 2nd October, 1969, about the complaints of the dizziness, and in his opinion it was due to the accident, being likely to occur after such accidents. During Cross-Examination Dr. Chung said this:-
A little later in Cross-Examination this was said:-
27. In Re-Examination it was put to Dr. Chung that he had said that dizziness was extremely common after brain injuries of the severity in this case, with which he agreed, and he said that dizziness occurs in over two thirds of such cases, and that he had examined the 1st plaintiff and did not find other causes. 28. Dr. Chung appears to me to be of the opinion that the dizziness was due to the accident because dizziness occurs in over two thirds of cases with brain injuries like those in the present case, but Dr. Hunter who treated the 1st plaintiff for the dizziness, and who had her under observation for that purpose, although he said that the dizziness could be a sequel to her severe head injuries, yet as it had occurred 3 1/2 to 4 years after the accident it was hard to relate it specifically to the severe head injuries, and that as the dizziness occurred about 3 1/2 years after the severe head injury he was unable to say that the dizziness was caused by the severe head injuries. On the whole, I am not satisfied that the dizziness was caused as a result of the injuries caused by the accident. 29. I now come to the matter of special damages. 30. Special damages have been admitted and agreed in part. Paragraphs (1), (2), (8), (9), (10), (11), (12), (13), (14) and (15) of the claim for special damage, and the medical fees of Drs. Fang, Chung and Hunter, the cost of prescriptions, and the cost of hospitalisation in St. Paul's Hospital have all been admitted and agreed at $5,861.50, the particulars of which may be seen in Ex. A. Further special damage admitted and agreed is as follows:-
31. There is therefore an admitted and agreed part of special damages amounting to a total of $8,911.50. 32. Paragraphs (16) and (21) of the claim for special damage, which are items Nos. (7), (14) and (15) in Ex. B, have been abandoned as being too remote. 33. That leaves for adjudication, in regard to special damages, paragraphs (17) to (20) inclusive of the claim for special damage, which are items (8) to (13) inclusive in Ex. B, and which relate to the employment of an amah. 34. Counsel for the defendant stated that he did not contest that an amah was necessary to assist in the household because of the 1st plaintiff's injuries, but he submitted that the rates stated were higher than they should be; the rates given by the 2nd plaintiff were higher than in the claim, and the plaintiffs could not get a larger sum than they had claimed in their statement of claim. Similarly, where the evidence did not support the amount of special damage claimed, no greater special damage than the evidence allowed could be awarded. He submitted that, for instance, the 2nd plaintiff had stated that the amah's monthly salary from May, 1969, was $340 and the cost of food supplied to her the 2nd plaintiff estimated to be $8 per day, making $580 per month for food and salary, which was much higher than it should be, and he submitted it was higher by a third, and he contended that if damages were awarded for an amah the cost should be scaled down by a third. He also stated that the 1st plaintiff was not totally incapacitated, and that there was an element of benefit in having an amah above what was necessary, and that benefit should be taken into account. 35. Counsel for both parties agreed that the special damages should be awarded to the 2nd plaintiff since he had paid the expenditure, and also it is not in dispute that the plaintiffs have not had an amah from the beginning of July, 1969, because the last amah left on the 1st July, 1969, and since then the 2nd plaintiff has been unable to obtain the services of an amah, and relatives or friends have assisted in the house, and therefore special damage in respect of an amah would only go up to the end of June, 1969. 36. It seems to me in the circumstances to be reasonably necessary for the plaintiffs to have the services of an amah in the house on account of the result of the injuries to the 1st plaintiff occasioned by the accident, and that compensation should be paid for this. 37. The 2nd plaintiff stated in evidence that he employed an amah since 1965 and that in 1965 after his wife's return from hospital the first amah's wages were $200 per month and in addition the amah was supplied with food which he estimated to cost $5 per day. It appears to me from that that the amah was not employed until after 2nd plaintiff's return home from hospital, which was on the 18th November, 1965, and I therefore propose to date the expenditure for the amah as from the 20th November, 1965; the 2nd plaintiff gave evidence about an incident concerning his wife and the attendant and an amah 3 days after his wife's return home from hospital, and so the amah must have been installed by then. 38. I have already set out what the 2nd plaintiff said about the expenditure on amahs. 39. In regard to the cost of food for the amahs this is claimed at the rate of $4.50 per day up to January, 1968, and at the rate of $5 per day from February, 1968, which I think is not unreasonable. The 2nd plaintiff estimated that the cost of the amah's food was $5 per day from the time of the employment of the first amah and that it increased to about $8 per day after the disturbances in 1967. 40. I award special damages in respect of the food for the amah at the rate of $4.50 per day from the 20th November, 1965, to the 31st January, 1968, inclusive, and at the rate of $5 per day from the 1st February, 1968, (a leap year), to the 30th June, 1969, inclusive, which I calculate to be $6,193 to the nearest dollar. 41. In regard to special damages for the wages of the amahs, the 2nd plaintiff said that he paid the amahs the usual Chinese New Year bonus, and I think that it is right to allow compensation for this item because not only is it the custom to pay it, but if it were not paid, it becoming known that it was not paid, it might well be that the services of an amah could not be obtained. 42. Having considered the claim for special damages in respect of the amah, the 2nd plaintiff's evidence, and general condition in Hong Kong, I allow as special damage for the wages of an amah the following sums, namely, for the relevant period of November 1965 (say one third of a month) and for the month of December, 1965, the wage of $200 per month; for January, February and March, 1966 $220 per month; from April to November, 1966, inclusive $250 per month; from December, 1966 to January, 1968, inclusive at the rate of $280 per month; and from February, 1968 to June, 1969, inclusive at the rate of $300 per month; to which has to be added the yearly Chinese New Year bonus at the appropriate rate, an additional month's wages at the amount of wage at the time, all of which I calculate to the nearest dollar to amount to $13,027. 43. I therefore award the 2nd plaintiff $28,131.50 special damages, being composed of $8,911.50 agreed special damages, $6,193 for amahs' food, and $13,027 for amahs' wages. 44. I next come to the matter of general damages, and I will deal first with the claim for general damages in respect of the 2nd plaintiff. 45. Counsel for the defendant stated that he did not concede that a claim for partial loss of consortium lay, however it seems to me that on the authorities the modern view is that such a claim does lie; see the case of Lawrence & Another v. Biddle(1) setting out cases on the matter, and I propose to follow what Lord Reid said in this respect in the case of Best v. Samuel Fox & Co. Ltd.(2) when he said:-
46. The 2nd plaintiff's claim to general damages is based on partial loss of consortium; loss of consortium is sub-divided into two parts, namely loss of services and loss of society, (see Cutts v. Chumley(3) at page 94 H). 47. In regard to loss of society, I think that the general damages for this should not be high. Counsel for the plaintiffs asked for the equivalent of £200 for this, and said that, although the 1st plaintiff was still at home, she was not the same person. Counsel for the defence submitted that the general damages for this should be small and between the equivalent of £40 awarded for this in Lawrence's case(1) and £200 awarded in Cutts' case(3). It seems to me that $1,500 is about the right figure for loss of society in the circumstances of this case and I therefore award the 2nd plaintiff that sum for that purpose. 48. In regard to loss of services, counsel for the defendant submitted that the 2nd plaintiff could not claim for both loss of services and for the services of an amah and get damages for both because the 2nd plaintiff would then be getting damages twice over for the same thing, and that all the general damages in respect of an amah should go to the 2nd plaintiff. Counsel for the plaintiffs conceded that loss of services would be covered by the capitalization of the cost for the amah, but he submitted that that was only part of the loss of services. He suggested that half the damages for the services of an amah should go to the 2nd plaintiff and half to the 1st plaintiff. 49. I think it is best to award the damages in respect of the services for an amah to the 2nd plaintiff because it is he who has suffered the loss of services, and also because he is the person who pays the amah. I am not satisfied that there are services which would have been rendered by the wife and are not rendered by the wife, and which are not rendered by an amah, which should increase the damages for loss of services above the damages for the services of an amah. The sum awarded for an amah has to be capitalized and discounted in the usual way having regard to the age of the 1st plaintiff, who is now aged 49 or 50, and to the fact that a lump sum is being awarded, and having regard to the vicissitudes of life. It may also be noted that Dr. Chung said that the 1st plaintiff's life expectancy was now 50% of normal, but that if she was well looked after her life expectancy would be 90% of normal. 50. In all the circumstances $30,000 seems to me to be a reasonable sum to award the 2nd plaintiff for loss of services, which is therefore the sum I award him for that purpose. 51. I now come to the last main question to be answered which is what general damages should be awarded to the 1st plaintiff. 52. I am satisfied that, in the circumstances of this case, general damages should be awarded to the 1st plaintiff under the following headings, namely, for pain and suffering, for loss of the amenities of life, and for loss of expectation of life. In regard to damages for the cost of caring for the 1st plaintiff, it seems to me that this is covered by the damages for the services of an amah, and I do not think that I should award those damages twice, and therefore I do not award those damages to the 1st plaintiff, except to allow something for the possibility that she might be institutionalize in a government mental hospital. 53. In the case of ...(illegible) atson v. Powles(4) Lord Denning, M.R., said:-
54. This is a very sad case, and I have to consider what, in all the circumstances, is a fair compensation to award the 1st plaintiff in the form of general damages, and I have come to the conclusion that $140,000 is such a sum, which is the general damages I award her. 55. For these reasons there will be judgment against the defendant for the sum of $199,631.50, being composed of $28,131.50 special damages awarded to the 2nd plaintiff, $31,500 general damages awarded to the 2nd plaintiff, and $140,000 general damages awarded to the 1st plaintiff.
8th November, 1969. Representation: Zimmern (Deacons) for Plaintiffs. Mills-Owens (J.S. & M.) for Defendant. (1) (1966) 2 Q.B. 504; (2) (1952) A.C. 716 at 736; (3) (1967) 3 A.E.R. 89 at 94 H. (4) (1967) 3 A.E.R. 721 at 722-723; (5) (1965) 1 A.E.R. 563 at 572. |