Chu Man Ting v. Kwan Kam Kei & Another
Read the full judgment text of HCPI 1039/2001 on BabelCite. This High Court CFI judgment was delivered on 30 January 2003.
1. This is a running down case in which the infant plaintiff, Chu Man Ting ("Man Ting"), suing by her mother and next friend, Fu Kam Fung, claims damages for personal injury. The defendants are the driver and owner respectively of a public light bus. In view of the fact that the issue of liability has been settled, I need only briefly state the facts giving rise to Man Ting's injuries.
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HCPI001039/2001 HCPI 1039/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 1039 OF 2001 -------------------------
------------------------- Coram : Deputy High Court Judge Carlson in Court Dates of Hearing : 9 and 10 December 2002, 10, 11, 13 and 14 January 2003 Date of Judgment : 30 January 2003 (handed down) ------------------------ J U D G M E N T ------------------------ INTRODUCTION 1.This is a running down case in which the infant plaintiff, Chu Man Ting ("Man Ting"), suing by her mother and next friend, Fu Kam Fung, claims damages for personal injury. The defendants are the driver and owner respectively of a public light bus. In view of the fact that the issue of liability has been settled, I need only briefly state the facts giving rise to Man Ting's injuries. 2.At a little before 9:30 p.m., on 27 March 1999, Man Ting was crossing Kwok Shui Road, Tsuen Wan as she was making her way home when she was struck by a public light bus, driven by the 1st defendant, which knocked her down causing her to sustain serious injuries which I must relate in some detail presently. 3.On 7 August 2002, a consent judgment on liability was entered in favour of Man Ting with an agreement that contributory negligence should be assessed at one-third. The effect of that order is that the defendants must pay Man Ting two-thirds of the damages which I am now required to assess. OUTLINE OF ISSUES 4.Man Ting was born on 19 December 1986 and so she has recently had her 16th birthday. She was 12 years and 3 months old at the date of the accident. She lives at home with her parents and is their only child. There can be no doubt that the consequences of the accident have been serious. It is the extent of those consequences which in controversy between the parties particularly as to her earning capacity once she completes her education. Given her youth, it will be difficult to make a completely reliable assessment of what the future holds for her. 5.It is helpful at this stage to briefly identify the matters which have given rise to the divergent views amongst the medical experts as to her future prospects. Man Tin was injured shortly after she had completed two terms in Form 1 at secondary school, having enjoyed a very successful career in her primary schooling. Suffice it to note at this stage that in her final three years of primary school, she came close to the top of her class and won a prize in Primary Five. Having regard to her excellent performance, she was able to take her place at secondary school in a Band 1 establishment which uses English as the medium of instruction. I will need to come to the evidence in the form of her school reports in a moment, but what is clear is that having left primary school close to the top of her class, she started secondary school by finishing close to the bottom of her class in the first term, although it is right to say she was able to make marked progress in the second term, notwithstanding which she still remained well in the bottom half of her class. A number of explanations have been offered for this unexpectedly disappointing performance which I can leave over to when I consider the evidence more closely. 6.The injuries that she sustained meant that she missed the whole of the final term of Form 1 with the result that she was obliged to repeat Form 1 the following year, which she did, again, with disappointing results. It was decided that she should be promoted to Form 2 on a trial basis. Again, she struggled and was required to repeat that year as well. She is now in Form 3 but not doing particularly well, if anything, the results are rather discouraging. Not before time, her teachers in response to letters from her solicitors, have indicated that perhaps it might be better for her to transfer to what would be a Band 3 school where the academic standards and demands are less rigorous and because she might find things more easy, particularly because the medium of instruction will be Cantonese. So now she finds herself two years behind her chronological age and still struggling. 7.The medical experts called on her behalf suggest that this very marked decline in academic standards, when measured against her excellent performance at primary school, is the result of brain damage caused by the severity of the collision with the public light bus which has reduced certain aspects of her intellectual functioning as evidenced according to Prof. Peter Lee, a psychologist from Hong Kong University who was called on her behalf, in a meaningful reduction of her IQ. There have also been serious psychological problems evidenced by, amongst other things, over-eating causing her to become seriously obese, poor personal relations with her fellow pupils at school which have been exacerbated by her becoming the victim of unkind bullying. This in turn has greatly reduced her self-esteem. There have also been difficulties at home and, in particular, she has not got on well with her parents. All the medical experts in this case accept and, indeed, encourage intensive psychological counselling, which should involve her parents, in order to assist her to work through her difficulties. 8.It is all of these matters which have given rise to the main issue in the case. Mr Clough, who appears for Man Ting, submits that before the accident, this was an extremely bright young girl with a most promising future ahead of her, particularly on the academic front. She had expressed an ambition to read medicine at university and go on and become a doctor. Both Dr Yu Yuk Ling, a highly experienced neurological expert also called on her behalf and Prof. Lee, who has carried out the psychological assessments, are agreed that her intellectual functioning must have been such as to make that ambition, if persisted in, a distinct possibility. Now, although she retains a high IQ, given the fact that the advice is that she should drop down to a Band 3 school, a university education, although not to be discounted, is very much less likely. 9.The defence, through their medical experts, suggest that Man Ting was not perhaps as clever as her experts and counsel seek to make out. Attention has been drawn to the fact that her performance in her last year of primary school was not as impressive as it had been in the penultimate year when she was a prize-winner, and particular reliance is placed on the very poor performance in her first term of secondary school and in a rather ordinary result in the second term. It is therefore not accepted that her pre-accident situation was suggestive of a brilliant academic career. That is the starting point to this dispute. 10.Then a further issue arises as to the extent to which she has sustained brain damage, although it is just about accepted that she has suffered a small degree of organic brain injury. As will become apparent from the evidence of Dr Edmund Woo, the defendants' neurologist and Dr Tsang, their psychologist, her intellectual functioning remains pretty much intact and reliance is placed on the fact that Prof. Lee has measured her IQ at 119 which is in the high average range (only slightly short of superior intelligence). That being the case, it is submitted by Miss Leong, on behalf of the defendants, that Man Ting is likely to achieve, in terms of her career and level of earnings, career expectations that are broadly similar to what she would have achieved even if the accident had not occurred. 11.In money terms, this dispute translates into a gap of over $4.5 million which divides the parties as to the correct award for loss of future earnings - Mr Clough submitting that something like $4.8 million would be the appropriate award, and Miss Leong suggesting that, in the absence of any evidence of potential loss of earnings, the most that I should give is a sum of $150,000. 12.Although there is also a difference between the parties as to the amount which should be awarded for pain, suffering and loss of amenity, that difference is not, relatively speaking, a large one. 13.From that broad outline of the principal issues, I now turn to examine the evidence in more detail. THE PHYSICAL INJURIES 14.The severity of the collision caused Man Ting to lose consciousness. On arrival at hospital, the Glasgow Coma Scale was 7/15, her blood pressure was elevated 136/178 and her pulse was 150/min. She sustained a depressed skull fracture which caused swelling of the brain. There was left sided haemothorax (a collection of blood in the chest cavity). As a result, she was intubated and supported with mechanical ventilation. X-ray examination showed a fractured left clavicle, a comminuted fracture of the right forearm (distal radius and ulna) and also a fracture of the 1st, 2nd and 3rd metacarpals of the right hand. A scan of the cervical spine revealed a crack fracture of C3 and C4 of the vertebral body. For this, a neck collar was provided. As to the orthopaedic injuries, an operation was performed on 9 April 1999 some 11 days after the accident, delayed presumably in order to allow time for her condition to stabilize. The CT scan of the brain showed diffuse cerebral oedema with traumatic subarachnoid haemorrhage. The intracranial pressure was monitored and albeit slowly, she improved. 15.She was managed by the Intensive Care Unit for about two weeks following the accident and she gradually regained partial consciousness. She was discharged from hospital on 5 June 1999 having been given physiotherapy, occupational therapy, speech therapy and counselling. Upon discharge, it was noted that her speech was slow but that she could walk unaided. She was then re-admitted for four days, from 6 to 10 July 2000, for the removal of implants which had been inserted in the operation to repair her fractured forearm. 16.It is clear therefore that she sustained severe multiple injuries from which she had recovered sufficiently following a stay in hospital of about 10 weeks. She then required further hospitalization for a second surgical procedure to remove the implants some 15 months after the original operation. 17.It is fair to observe that now, very nearly four years after the accident, she has made a full recovery from her orthopaedic injuries. THE NEUROLOGICAL EVIDENCE 18.Dr Yu has been called on Man Tin's behalf to provide an assessment of her neurological condition following her injuries. He has provided two reports, the first of which is dated 18 November 2000 (pages 93 - 103 of the Bundle), and a further report dated 12 November 2002 (pages 135 - 144 of the Bundle). In the earlier report, he has set out a summary of symptoms and disabilities as recounted to him by Man Ting and by her mother. These included headaches associated with dizziness, such headaches occurring daily and lasting from one to two hours which had been brought on by mental tasks. This required her to rest from her studies. Independently of her headaches, she felt dizziness which also occurred daily and could last for up to three or four hours. I should mention that as a result of that dizziness, Man Ting lost her balance on two occasions, the falls causing fractures which required further treatment. 19.She reported to him that her thinking processes and memory had become substantially impaired. Her short term memory was poor although she did indicate that her long term memory was, relatively speaking, preserved. This means that when she studies, her capacity to retain the material is poor which in turn is reflected in her poor performance in school examinations. 20.She also complained of a change in personality. Whereas previously she had been sociable, she was no longer so and had now developed a capacity for irritability, whereas previously she had been even-tempered. She has also developed a lack of inhibition which means that she can act in a socially inappropriate ways by, for example, singing during class. 21.At the time of the first report, she had not suffered any epileptic seizures and that remains the position. She reported to him that she had developed a poor sense of direction and needed to be accompanied by an adult when visiting unfamiliar places. At that stage, Dr Yu noted the poor performance in Form 1 and the requirement that she repeat that year. I will give this more detailed consideration in a moment. 22.The doctor performed a Mini-Mental State Examination ("MMSE") which produced a full score of 30 although he noted that her response was slow. He observed that this test was designed to identify a patient suffering from "global cognitive impairment" such as that found in dementia. He explained that a full score could only provide an indication that the patient was unlikely to be suffering from dementia, and that the test was not sensitive for the detection of subtle and patchy cognitive impairment. Having regard to her poor academic performance following the accident, he recommended assessment by a clinical psychologist. At that stage, he drew attention to the risk of developing post-traumatic epilepsy which I shall consider separately in a moment. 23.Man Ting was then seen by Prof. Lee and, as will become clear, his testing has provided evidence of cognitive impairment caused by her head injuries. Dr Yu was then invited to provide an up-to-date assessment which he did in his report of 12 November 2002 (page 135 et seq. of the Bundle). In providing this assessment, he had the advantage of examining her again, on this occasion jointly with Dr Woo, and he also considered the up-to-date psychological reports by Prof. Lee and Dr Tsang. Dr Yu has drawn attention to persistent headaches associated with dizziness and so these have continued four years after the accident. He has also noted her complaint that her recent memory continues to remain impaired with the result that she has difficulty retaining the material that she is required to study. He has drawn attention to a sense of inferiority which she now feels because of her diminished intellectual powers which in turn is reflected in poor school performance and the loss of good friends at school. He has also drawn attention to her obesity, her weight having risen at one stage to an extremely worrying 93 kilograms, brought on by excessive eating. He did not feel that she was exaggerating her situation which is also accepted by the defendants' experts. 24.Dr Yu concludes that the effects of the accident have been to leave Man Ting a diminished individual, if I can express it in that way. She is now a poor student and her social functioning is much reduced. He would wish to see active psychological intervention at the earliest possible moment which, he is hopeful, will at least alleviate these aspects of her problems. Based on the psychological testing carried out by Prof. Lee, he concludes that she has undoubtedly suffered organic brain damage. 25.The defence neurologist Dr Woo, who of course is also highly experienced in such matters, has concluded that whilst Man Ting may well have sustained a small degree of brain damage, remains unconvinced that this has caused anything like the degree of cognitive impairment which both Dr Yu and Prof. Lee contend for. In general terms, Dr Woo's conclusion is that the accident has, if anything, caused psychological problems which can be addressed by appropriate treatment, which he also recommends, with the result that overall her pre-accident condition should be effectively restored after she has had the benefit of appropriate counselling. 26.Dealing with the question of whether there has been any serious degree of organic brain injury, Dr Woo has commented on the differences in Man Ting's academic performance pre and post-accident. His very helpful report starts at page 159 of the Bundle. In relation to the plaintiff's case that Man Ting must have been possessed of superior intelligence and that therefore her expressed ambition to become a doctor was a realistic one, Dr Woo comments that her primary school results, although of course good, do not indicate outstanding achievements. He accepts that her Primary 5 year was very good but he detects a downward pattern thereafter relying on the fact that her final year at primary school produced a number of "B" grades. Understandably, Dr Woo then relies on her, relatively speaking, unimpressive performances in the first two terms at secondary school before she was injured. He suggests, with considerable justification, that these are not the marks that one would expect of a top pupil. Clearly, they are not. Those representing Man Ting have pointed to a number of factors which may explain her poor early results at secondary school. 27.Mr Clough has submitted that allowance should be made for the fact that her secondary school uses English as the medium of instruction and that proper allowance should be made for a period of settling in and adjustment. That having been said, 75% of her fellow pupils from primary school accompanied her to this secondary school and, plainly, the majority of them must have achieved better marks than she had. Mr Clough has also drawn attention to the fact that the majority of those fellow pupils had been tutored during the long summer holiday prior to going up to secondary school, and he has also sought to take comfort from the fact that there was a clear improvement in Man Ting's performance in the second term, although still leaving her in the bottom half of her class. I will need to make further reference to these considerations presently. 28.In commenting on the psychological testing, Dr Woo's opinion is that these tests showed that Man Ting's overall performance remains high, although in respect of some of the tests she performed less well than in others. He draws particular attention to the fact that her general IQ score as measured by Prof. Lee post-accident puts her in the high intelligence bracket, and Dr Woo rather doubts that it could properly be said that she has suffered any real diminution as a result of the accident. In support of this, he of course relies on a drop in her Primary 6 grades and her unimpressive pre-accident performance in the first two terms at secondary school. From all of this, Dr Woo concludes that broadly speaking, she is now back to her pre-accident level and, if that is so, he is doubtful that she was ever in a position to fulfill her ambition of becoming a doctor although he continues to express some optimism, notwithstanding current difficulties, that she could still get into university. His evidence of course is important to the defence who contend that her loss of earning capacity as a result of this accident must be minimal in the face of this expert evidence, and in the face of any real evidence as to what she could have earned and what she will earn which is a slightly different exercise which I must consider presently. THE RISK OF POST-TRAUMATIC EPILEPSY 29.This is a question which has been given serious consideration by both neurological experts. The difference between them lies in the way that they have sought to quantify that risk. This is dealt with on behalf of Man Ting by Dr Yu at paragraph 20 of his first report (page 102 of the Bundle). He has analysed the position and taken over a 30 year cumulative incidence risk he says that Man Ting has a 16.7% chance of developing post-traumatic epilepsy compared to 2% for the normal population. He concludes therefore that this is a substantially increased risk which ought to be taken into account. Both experts are of course agreed that the risk levels off after a period of four years or so and that she is now over the worst in terms of her susceptibility to an epileptic attack 30.Dr Woo, on the other hand, suggests that it is quite unhelpful to look at the matter over a long term period in the way that Dr Yu has suggested. His analysis of the situation starts at paragraph 7 of his report (see page 171 of the Bundle). Whilst accepting the long term percentage as a arithmetical calculation, he suggests that this is an unrealistic way of viewing the matter and that the better analysis is to look at it on a yearly basis and asks the question : "What is the risk at any particular given moment of time; where for the present period the percentage is 0.42% of developing epilepsy reducing down to 0.14% after 10 years?" Dr Woo suggests that this is the more helpful way of assessment because it provides a more realistic insight into the enhanced risk factor. 31.I have come to the view that one has to consider both statistical approaches and come to a broad view. There is no doubt that Man Ting is now exposed to a higher risk of post-traumatic epilepsy but, in saying that, I must also give effect to the fact that she is over the worst of it although the prospect remains and it is more probable than for someone who has not suffered her sort of injury. There really is no precise mathematical formula which I can apply to this matter. I merely note both sets of statistics and I will reflect the enhanced risk in the award of general damages. THE PSYCHOLOGICAL EVIDENCE 32.I have found this part of the evidence of most assistance and, like Man Ting, I too have been exposed to a battery of tests, she of course having to undergo them, me having to digest their results! Both Prof. Lee and Dr Tsang are highly experienced in this field and extremely well qualified to speak on the subject. The most controversial part of the evidence has been the attempt by Prof. Lee to come to some sort of assessment as to what Man Ting's IQ had been prior to her suffering the effects of her head injuries. Her present IQ, as I have already related, is 119. Taking that and applying approved methodology, Prof. Lee has worked backwards and suggests that on a conservative basis, it was 138 which would have placed Man Ting at the 99th percentile of the population. From that, he suggests that this was a child that was possessed of superior intelligence which has now dropped to a lower rank in the hierarchy of measuring such matters. 33.Dr Tsang, on the other hand, although not subscribing to that sort of figure, is disposed to accept that Man Ting may have suffered some diminution in her IQ but not from the relative dizzy heights contended for by Prof. Lee. I am bound to say I was impressed by Dr Tsang's willingness to make that sort of concession. The fact remains that these IQ readings, as both experts' accept, are liable to be something of a movable feast depending on the candidate's performance on any given date. Prof. Lee's conclusion from his own readings and assessment is that Man Ting has undoubtedly become, intellectually speaking, a diminished individual as a result of her injuries. He feels able to say that given his assessment of her pre-accident position that her prospects of going on to medical school and entering medical practice were realistic. Dr Tsang, on the other hand, feels unable to come to that sort of conclusion although he accepts that she would have been able to go to university although he does not exclude that prospect even now. 34.In his most recent report of 9 November 2002, Prof. Lee highlights the importance of psychological treatment, see paragraph 51 which is in these terms :
35.Essentially that view is shared by Dr Tsang who at paragraph 17 of his report of 30 October 2002 has the following to say :
36.There is a clear difference in the conclusions of the two psychologists, with Prof. Lee contending for a marked depreciation in Man Ting's intellectual functioning which is the result of organic brain damage which has been compounded by psychological problems which, fortunately, he is confident can be ameliorated. Dr Tsang, on the other hand, can identify very little evidence of intellectual deficit although he does accept a degree of that and a reduction in IQ. I will come to the impact of this evidence when I indicate my overall findings. THE SCHOOL REPORTS 37.Inevitably, these have been examined and re-examined in great detail with both sides seeking to elicit matters which support their particular approach to the case. Ultimately, they demonstrate that Man Ting has undoubtedly suffered a very substantial academic reversal since the accident and I say that recognizing that her pre-accident performance at secondary school was not a good one. Clearly she was having adjustment problems following entry into secondary school. It is quite impossible to come to any reliable view as to what her academic performance would have been had she not sustained the effects of the accident. It simply would not be right to come to a specific finding based on two terms' work. What one can say with confidence is that but for the accident she would not have had to repeat Form 1 and then Form 2 and now notwithstanding that she is two years behind the rest of her class, she continues to struggle. I am in entire agreement with her headmistress's opinion that this is not the right school for her given her present circumstances and that she should look for a Band 3 school where the medium of instruction is Cantonese and where she might feel more comfortable in terms of what is required of her in class. This view is shared by the medical experts and the obvious conclusion is that if she is finding her studies easier, relative to the rest of her class, that this could only assist in raising her self-esteem and confidence. I do not think it is a profitable exercise to analyse the results from the school reports in any sort of detail. The general flow of the evidence is as I have just expressed it. Man Ting has had a miserable time since she has returned to this particular school. She has been bullied, and that in itself is a terrible thing to happen to a young person, who is clearly labouring under a number of psychological problems whilst also struggling with her school work. The situation really could not be any worse and these factors all point to the good sense of moving her from this establishment. I am confident that a less demanding environment together with psychological counselling will improve her situation considerably. MAN TING'S AND HER MOTHER'S EVIDENCE 38.One should not lose sight of this evidence which has tended to become perhaps less prominent given the number of experts who have come to assist the court. I entirely accept the evidence of both of them as to the immediate domestic aftermath of the accident. Man Ting undoubtedly has suffered something of a personality change. She is someone who has always had difficulty in keeping her weight down. She was over-weight at the time of the accident and there may be something of an inherited problem there. But her weight then shot up to 93.6 kg which for a young teenager must give great concern. She has since lost quite a lot of that although she remains over-weight. I accept her and her mother's evidence that this was caused by excessive over-eating, usually consuming six or seven bowls of rice with her meals. Without seeking to be particularly scientific about this, I would have thought this was "comfort eating" to relieve the general stresses of life. I also accept her unusual behaviour in showering up to six or seven times a day and also making a mess of her room only to then clean it up again. All of this was the product of the psychological effects of the accident and her sense of frustration at feeling diminished as a result of it. That having been said I was, if anything, surprised to see how well Man Ting performed in the witness box. I was surprised by that because prior to the trial, I had read of the serious effects of the accident from the medical reports. There has been a marked improvement and this must augur well for the future particularly with the expected psychological counselling. MY FINDINGS 39.Although by no means the worst type of case this accident has brought about a number of distressing consequences for Man Ting and her family. The physical injuries are not to be lost sight of where she was comatose for a number of days, which must have been most distressing for her parents. The fact that she was kept in hospital for ten weeks speaks for itself and that she required substantial orthopaedic surgery to deal with fractured bones which then required further operations to remove the implants. All of this must sound in the award of damages for pain and suffering. The dizziness and headaches are also referable to the accident as is the fact that her dizziness contributed to two separate falls which caused fractures which fortunately, only required conservative treatment. I will assess this part of the case on the basis that there has now been a full recovery. 40.There remains the risk of post-traumatic epilepsy and I will approach this issue in the way that I have indicated earlier. 41.The neurological and psychological evidence is where the main dispute is and of course this impacts on the principal area of damages which concerns future loss of earnings. I prefer the evidence of Dr Yu and Prof. Lee which is to the effect that Man Ting has sustained a diminution in her overall intellectual capacities and I do so for the reasons that both of them have given. This is all amply confirmed by a very poor post-accident academic performance. I am satisfied that Man Ting was a bright girl and I am also satisfied that she was having initial difficulties in her transition to secondary school. I do not believe that she was ever going to be a particularly brilliant student and to that extent, the views of Dr Woo are to be respected. Nevertheless, I am confident in the conclusion that but for her injuries she would have the survived the rigours of this particular school and there is no question in my mind that she would not have been required to repeat any of the years in the course of her career at her present school. Her place at this school was well merited on the basis of her primary school performance, and where it is impossible to predict whether she would have made it into the last two years of this particular school given the fact of only the top third get through, there must remain the real prospect that she could have worked her way up into contention. She has now, of course, lost all of that and faces an academic future in a Band 3 school with the real risk of perhaps not getting into university, living as we do in a city where university places are at a real premium. Although I want to share the optimism of Dr Tsang that she may still be able to get into a university degree course, ultimately, she faces an uncertain academic future although not necessarily a bleak one. But for the accident the prospects of a university degree were very much on the cards although it is quite impossible to say whether she would have gone to medical school or gone on to read another less demanding subject. It would be quite impossible to predict that sort of thing when one is dealing with a 16-year old girl who was only 12 when she was injured. From these findings, I must now turn to my assessment of damages. PAIN, SUFFERING AND LOSS OF AMENITY 42.Both counsel have very helpfully drawn to my attention a number of comparables although of course inevitably no two cases are the same. Mr Clough submits that the appropriate award under this head is in the order of $650,000 which would put this into the category of a substantial injury case as contemplated in Leung On v. Chan Pui Ki [1996] 2 HKC 566. Compared to the difference between the parties on the issue of future loss of earnings, Miss Leong who submits that the appropriate award is in the region of $500,000, the difference between the parties is not a very substantial one. I have to try and compensate Man Ting as best I can for the loss between what she would have been and what she has become as a result of the effects of this accident. Inevitably this must involve me in a degree of necessary speculation given the fact that I am dealing with someone whose stands at the threshold of adulthood. I have identified the various factors which I will need to take into account and my findings on those issues. I am compensating her for severe multiple injuries, from which fortunately she has now fully recovered from their physical effects. The main factor is the very important aspect of intellectual "amenity". That must sound under this head, but perhaps more substantially on its impact on her future loss of earnings. I assess damages under this head at $630,000. Miss Leong's figure does not in my judgment adequately reflect the overall consequences of this accident. This amount will attract interest at 2% from the date of the accident to judgment. FUTURE LOSS OF EARNINGS 43.Added to the difficulties of making a reliable assessment in this sort of case, having regard to the relative youth of the plaintiff, which requires a degree of crystal ball gazing, I also have not been provided with any figures as to what Man Ting may have been expected to earn and what she is likely to earn in the future. Accordingly, I must "feel my way" to an appropriate assessment having regard to all the circumstances of the case. 44.The other difficulty concerns the method of calculation. Mr Clough submits that I should apply a traditional multiplier/multiplicand calculation, whereas Miss Leong suggests that in the absence of any evidence I can do no better than award a global figure. Both approaches require an element of picking figures out of the air. I have no doubt that there will be a loss of earning capacity. But for the accident Man Ting would have achieved far more at school and would confidently have expected to go on to tertiary education. In such circumstances, the expectation would have been that she would have earned more than one can say of her now as she finds herself two years behind at school and still struggling. Miss Leong has drawn to my attention two cases : firstly Fairley v. John Thompson Limited [1973] 2 Lloyd's Law Reports 40, which perhaps is the less helpful of the two cases, where on the evidence the Court of Appeal in England had found that there had been no future loss of earnings because the plaintiff was now earning at the same rate as he had been before the accident. The more helpful case is that of the Joyce v. Yeomans [1981] 1 WLR 549. In that case, the plaintiff was aged nine at the time of the accident and had sustained a head injury, amongst other injuries, and began to suffer epileptic seizures, which continued when he went to grammar school, to the detriment of his performance there and to his future employment prospects. Faced with a case which presented so many imponderables as to what the young plaintiff would have earned and what he was now expected to earn as a result of the accident, Waller LJ put the matter in this way at 556A-C :
The matter was also considered by Brandon LJ (as he then was) at 557A-D as follows :
And finally, Sir David Cairns expressed himself in these terms at 558C :
45.In Chan Pui Ki leading counsel for the defendants at first instance had submitted that this approach was the correct one on the basis of the facts in that matter. That submission was rejected by the trial judge Cheung J (as he then was) in preference to a multiplier/multiplicand approach. On appeal counsel had changed and that submission does not appear to have re-surfaced and the Court of Appeal proceeded to assess future loss of earnings on the multiplier/multiplicand basis. It is right to say that the Court in that case had firm evidence as to what the infant plaintiff would have been able to earn post-accident. In this matter I am completely unable to arrive at an appropriate multiplicand although of course one is able to apply a proper multiplier having regard to Man Ting's age. Mr Clough deals with this by suggesting that I can cure any imperfections in a multiplier/multiplicand approach by erring on the side of conservatism. 46.On the fact of this case, I take the view that it would be wholly unrealistic to venture down that road, it would be entirely artificial where I am simply not capable of applying any sort of reliable figure as a multiplicand. In such circumstances, I propose to follow the approach of the English Court of Appeal in Joyce v. Yeomans supra and in doing so I see a clear distinction between the evidence before me and that in Chan Pui Ki where the court was at least able to have regard to what the infant plaintiff would have earned in a sheltered workshop environment. I am therefore left with trying to arrive at a global sum recognizing that there will be future loss of earnings over the working lifetime of Man Ting which losses are directly referable to the effects of this accident. Having arrived at a global figure, I then propose to do what Brandon LJ suggested which is to give it a second look on a multiplier/multiplicand basis. 47.One only needs to briefly examine Mr Clough's calculations on a multiplier/multiplicand basis to see how entirely artificial and speculative such an approach would be. He has submitted that after completing tertiary education, her likely earnings would have been upwards of $35,000 a month but following successful treatment, she should be able to find work as a messenger or doing routine clerical work and earn no more than $10,000 a month. That produces $25,000 a month as the resulting loss, which converts to $300,000 a year which when multiplied by 16 (a conservative multiplier having regard to her age) produces $4,800,000. It is simply not possible to engage in that sort of exercise, which despite Mr Clough's best efforts, really amounts to picking figures out of the air and hoping that they are correct. 48.Equally Miss Leong's figure of $150,000 really does amount to a derisory sum given what has happened to this girl and the consequences of all of that. 49.Taking everything in the round, I have come to the conclusion that the appropriate global sum is one of $2,000,000. In arriving at this figure, I have had regard to all the circumstances as I see them which must include all the uncertainties of life. Having arrived at this sum, I have checked against a multiplier/multiplicand by taking a multiplier of 20 years which would produce a monthly loss of $8,333. It seems to me that such a loss would not be excessive given her considerable academic setbacks with the consequent difficulties of achieving a place at university and subsequently acquiring well paid employment which would have been very much on the cards but for the accident. So that is how I have approached the question of future loss of earnings. This sum of course does not attract interest. (See Joyce v. Yeomans supra and Clarke v. Rotax Aircraft Equipment Limited [1975] 1 WLR 1570.) 50.The remaining elements of the claim can be taken shortly. LOSS OF EARNING CAPACITY 51.This is a claim predicated on the basis that the plaintiff will be at a disadvantage in the labour market because of her injuries, which is calculated at $240,000, being the equivalent of 24 months' earnings at $10,000 a month. It is put on the basis that if she were to become unemployed and because of her disabilities, she would have added difficulties in becoming re-employed. As with the claim for future loss of earnings, there is an element of speculation as to whether this will be so and how quantum should be calculated. From my part, I feel quite unable to make any award under this head which on this occasion would require me to pick a figure with no logical basis for it. Where the plaintiff has already been properly compensated for future loss of earnings, I feel unable to conclude that she would be in the sort of position of a person suffering from disabilities that would make her more vulnerable in the labour market and which would require an award under this head. Accordingly, I decline to make any order on this part of the claim. OTHER SPECIAL DAMAGES (i) Travelling expenses 52.This comprises taxi fares to and from hospital for the plaintiff's mother and for the plaintiff herself, totalling $13,580. This part of the claim is contested on the basis that it was not reasonable for the plaintiff or her mother to have undertaken these journeys by taxi. The suggestion being that they should have used some other cheaper forms of public transport. I take the view given the anxiety and nature of the plaintiff's disabilities and her injuries that a claim based on travel by taxi is entirely reasonable. I will allow the entire amount, namely $13,580 to which interest must be added at half the judgment rate from the particular dates of expenditure until judgment. I will leave it to the parties' solicitors to make the appropriate calculations. 53.There is also a claim for tonic food which has always been traditionally allowed provided the claim is a reasonable one. In this instance, $12,000 has been asked for. The evidence to support this is not there at all but I am prepared to make some allowance on the assumption, given our traditions for treating illness, that the plaintiff's parents were put to additional expense for such food. I will allow a sum of $6,000. Interest will be added from the date of the plaintiff's discharge from hospital until judgment, again at half the prevailing judgment rate. (ii) Future expenses 54.This claim is based on what is now recommended by all the experts in the case that the plaintiff and her parents should be given appropriate psychological counselling. The cost put by Prof. Lee is $1,500 per session. As to Man Ting, the recommended treatment is biweekly for one year and a follow-up for a further year but on a less frequent monthly basis. The parents are also recommended for intermittent treatment over ten sessions in order to help them gain a better insight into their daughter's needs. This would appear to be an entirely reasonable approach, although Dr Tsang thought that it would be just as appropriate if the treatment for the parents and Man Ting were to be in a joint session. It seems to me that one must allow for a degree of flexibility by the consulting psychologist and so some allowance will need to be made for that. For Man Ting, I allow biweekly sessions (by which I understood the Professor to mean once every two weeks) for the first year which would be 26 sessions multiplied by $1,500, being $39,000 and for the second year, 12 multiplied by $1,500, making $18,000. 55.For the parents, I will make an allowance for eight separate sessions for them, making 8 multiplied by $1,500, being $12,000. SUMMARY 56.Accordingly there must be judgment for the plaintiff in the following amounts :
The total of these amounts will be reduced by one-third to reflect the agreement on contributory negligence. COSTS 57.I will make an order nisi that the defendants pay the plaintiff's costs with an order for legal aid taxation of her costs. There will also be liberty to apply on any consequential matters that arise from the judgment.
Representation: Mr Neal Clough, instructed by Messrs Ko & Chow, for the Plaintiff Miss Susanna Leong, instructed by Messrs Tsang, Chan & Wong, for the 1st and 2nd Defendants |
Cases cited in this judgment