Mak Yun Tai v. Kwong Kwok Fai

Case No.HCA 1427/1983

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA001427/1983

1983 No. 1427

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

	MAK YUN TAI by his next friend and father MAK KAN CHEUNG	Plaintiff
	and
	KWONG KWOK FAI	Defendant

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Coram: Master Betts in Chambers

Date of Hearing: 8th August 1983.

Date of Judgment: 1st day of September, 1983

Appearances: McCormick, D.L.A., for Plaintiff.

Defendant in person

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ASSESSMENT OF DAMAGES

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1. On 30th May 1981 the plaintiff, then aged 6 years, was standing in the central reservation at the 23rd milestone along Castle Peak Road when he was knocked down and injured by a truck driven by the defendant.

2. The writ in these proceedings was issued in February this year and interlocutory judgment entered in March.

3. The injuries sustained by the plaintiff, as set out in the Statement of Claim, are fully supported by the medical evidence adduced and are not challenged by the defendant. I find them proved and set them out hereunder:-

	"(i)	Concussion.
	(ii)	Fractures of the left femur, bone of the thigh, compound fracture of left parietal bone of the skull.
	(iii)	Swollen and bulging brain.
	(iv)	Lacerations.
	(v)	Pain and shock.
As a result of the aforesaid injuries
	(vi)	A craniotomy was performed.
	(vii)	The wounds were debrided and sutured.
	(viii)	Traction was applied to treat the fracture of the femur.
	(ix)	The Plaintiff was unconscious for 15 days.
	(x)	Upon retaining consciousness it was discovered that the Plaintiff had become severely mentally defective. He cannot speak, he can only grunt or yell or whine, he can stand but cannot walk, he wets and soils himself, has to be fed and undressed and washed. It is doubted if he can ever learn to be independent again and as such will need constant care and attention for the rest of his life.

4. The total effect of the medical evidence is that this child is reduced to a near vegetable state and will require constant care and attention for the rest of his life. There is no prospect whatever of significant improvement.

5. I accept Mr McCormick's suggestion that these circumstances bring the plaintiff within the category of 'disaster' cases suggested in Lee Ting Lam v Leung Kam Ming (1980) 10 HKLJ 364.

6. Mr McCormick also reminded me of an award I made as recently as three months ago in Chan Chung Fun v Tam Lung Pan and another (Action No. 4865 of 1982) which was also in the disaster category. There I assessed damages for pain, suffering and loss of the amentieis of life at $300,000 having allowed an inflation factor of 10% per annum since Lee Tim Lam's case. I am invited to make a similar award here. In the case of Mr Chan Chung Fun the plaintiff was 34 years old, married and a father. His injuries virtually destroyed the functioning of his body and limbs but left his brain undamaged. I cannot accept that as a parallel with this unfortunate child who is now more mentally than physically disabled and will never know the pleasures and comforts of life that Mr Chan Chung Fun to some extent can still enjoy and which he certainly experienced before his injury. It is now well settled that a young child insensible of loss of amenity, and to whom an award offers no solatium, is still entitled to a full award.

7. I have not been referred to any decision in the Hong Kong Courts that I consider parallel to this so approach the quantum under this head of damages solely guided by the principles and figures in Lee Ting-Lam's case. The definition of of disaster was there set out as:-

"......where the victim requires constant care and attention and is incapable of ever leading or appreciating an independant adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children. Awards are from $150,000 upwards."

8. Making proper allowance for the reduction in the purchasing power of money I would, today, take the starting figure for such awards as $200,000. In view of the extreme youth of the plaintiff and the number of years he will carry the burden of his existence I consider his entitlement to be fairly well above the minimum in this category and assess the figure at $350,000.00.

9. There is also a claim for loss of future earning capacity or future earnings. No evidence, quite naturally, was adduced to quantify loss of future earnings so my assessment is damages for loss of future earning capacity. The only certainty assisting me is that this child will never have any earning capacity at all. I also found assistance from Renny Cho Kwok Hung v Fuslier Donald Evans and others 11 HKLJ 262, and Leung Shing & KMB (1933) Ltd v Cheung Ping Kwai C.A. 93/1982 in 13 HKLJ 241. Allowing again for inflation, the age of the plaintiff and his total incapacity I assess the damages under this head at $200,000. Damages are asked for the value of the services of the plaintiff's mother who is devoting herself to him. On the medical evidence it is likely that the plaintiff will have to be taken into an institution years for care in 15 years at the most. My reading of the reports makes me think it is likely, to be less and I accept she will be looking after him for, perhaps, 10 years. Part of his mother's time is, of course, spent looking after the household in the normal way.

10. I assess the value of her services at $1,200.00 per calendar month, apply a multiplier of ten, and assess damages under this head at $1,200 x 12 x 10 = $144,000.00.

11. After about 10 years the plaintiff will have to be taken into an institution and given professional care. The evidence as that he has a reduced life expectancy and is not expected to survive beyond the age of 51. If that is right he will live there for 32 years. The present charge for a suitable Government institution is $6 per day. If that charge remained constant the total cost to the plaintiff would be $6 x 30 x 12 x 32 = $ 69,120.

12. The costs, of course, will go up but the plaintiff will have the benefit of the capital not only in advance but 10 years in advance of the first disbursement and possibly 42 years in advance of the last. The capital will be invested and income accumulated. I consider $60,000.00 to be the proper figure and that is my assessment.

13. Damages for the loss of expectation of life are claimed, are supported by the evidence, and are assessed at the conventional sum of $15,000.00. There are four main heads of special damages claimed and I will deal:-

	(a)	Hospital fees are claimed for Hong Kong and Canton. The latter were incurred after the plaintiff had received extensive care and treatment here. The plaintiff's father said quite frankly in evidence that as the child had not recovered "we took him to Canton hoping they would cure him." Of course they did not do so and there was never the slightest prospect they would. I do not find that expenditure reasonable and allow only the fees incurred in Hong Kong of $220.
	(b)	Travelling expenses are claimed both here and in Canton, where hotel expenses and so on are added. For the reason given above I allow only the expenses in Hong Kong which I accept at the figure claimed of $1,203.60.
	(c)	Nourishing food is claimed at $15.00 per day for 74 days in Hong Kong hospitals and as a continuing daily charge since. I am satisfied such food was provided and that it was reasonable to do so. I think a reasonable period to be six months. In To Ki v Chan Kit Lam & another 1980 No. 2224 a daily figure of $10 was allowed and seems generally to have been followed since without allowance being made for inflation. I take the view that the figure today should be $15 and my assessment here is $15 x 30 x 6 = $2,700.00.
	(d)	Loss of wages. Immediately after the accident both parents stopped work in order to make daily visits to the child. The father returned to work after two months and claims for that period the total of $2,800. I find that quite proper and it is awarded in full. The mother also gave up her work at which she earned the modest wage of $300 per month. That is claimed as a continuing loss. I do not consider it right to award a sum for the value of her services (as I have done) and also for her loss of wages. I therefore make no assessment under this head.
	For ease of reference I summarise below my assessment:-

	Pain, Suffering and Loss of the amenities of life.......................................................	$350,000.00
	Loss of future earning capacity.............	$200,000.00
	Value of mother's services..................	$144,000.00
	Cost of future institutional care............	$ 60,000.00
	Loss of expectation of life...................	$ 15,000.00
	Hospital fees.......................................	$ 220.00
	Travelling expenses.............................	$ 1,203.60
	Special food.......................................	$ 2,700.0
	Loss of father's wages........................	$ 2,800.00
		$775,923.60

14. There will be interest on the damages for non-economic loss at the rate of 2% per annum from the date of the writ and on the special damages at the rate of 5.5% per annum from the date of the accident to today. There will be no interest on the damages for loss of future earning capacity nor, in the particular circumstances I have set out above, on the cost of future institutional care.

15. There will be an order for payment of the plaintiff's costs by the defendant and for the plaintiff's own costs to be taxed under the Legal Aid Regulations.

16. Subject to the Director of Legal Aid's first charge on the damages they are to be paid to the Registrar for investment on the usual terms and with the usual power to make payments out.

17. Dated this 1st day of September, 1983.

(J. Betts)

Assistant Registrar

Representation:

McCormick, D.L.A., for Plaintiff.

Defendant in person

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