Chan Chung Fun v. Tam Lung Pau and Another

Case No.HCA 4865/1982

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA004865/1982

1982 No. 4865

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

___________

BETWEEN

	CHAN CHUNG FUN	Plaintiff
	and
	TAM LUNG PAU	1st Defendant
	TAM LUNG SAI	2nd Defendant

____________

Coram: Master Betts in Chambers

Date: 5th May 1983

Appearances: T. S. Wong, Esq., of Messrs Michael Cheuk & Co for the Plaintiff

R. Wong, Esq., of Messrs P. T. Fung & Cc for both Defendants

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ASSESSMENT OF DAMAGES

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1. In the first hour of 20 July 1981 the Plaintiff was a passenger in a car driven by the First Defendant as servant or agent of the owner, the Second Defendant. The vehicle left the Tuen Mun Road near Tsing Lung Tau, collided with the hillside and turned over.

2. The plaintiff was injured, and issued the writ in those proceedings in June 1982. In February this year interlocutory Judgment was entered by consent against both Defendants.

3. The physical consequences to the Plaintiff of the accident were disasterous. The medical evidence is not disputed. It is that he sustained a fracture dislocation of his spine at the level of the 6th and 7th cervical vertebrae. On admission to princess Margaret Hospital that day he was fully conscious, his pupils were equal and reactive. Sensory function was intact above level of C4. From C4 to T3 levels there was paresthesia but complete loss below T4 level. There was complete loss of motor function below the level of C6.

4. He was given skull tong traction and put on Stryker bed for 2?months. He developed pressure sore which healed on conservative treatment.

5. He was transferred to Margaret Trench Rehabitation Centre and was either there or in PMH for a total of eight months. In June 1982 he was referred to Dr Harry S. Y. Fang who examined him not only in his clinic but had him admitted to St. Paul's Hospital for further tests. Dr Fang's conclusions are contained in a report dated 23rd July 1982 which is unchallenged and which I accept.

	Part of that report reads:-
	" Mr Chan was found by me to be mentally clear and alert. Examination of the cranial nerves showed no clinical defect.
	Examination of the neck showed that there was tenderness in the base of the neck. Movement of the neck was relatively free. However, there was pain at the extremes of movement in all directions, i.e. floxion, extension and rotations.
	Examination of the upper limbs and shoulder showed that there was extensive wasting of muscles of the arm, forearm and hands. Shoulder movement was relatively normal and of good muscle power. Elbow movements showed that both biceps muscles were strong and triceps muscles were slightly weaker than normal. Examination of the forearm muscles showed that both pronator and supinator of the forearm as well as the wrist extensor and flexor were weak, particularly on the left side. Examination of the hands showed gross wasting and weakness of the intrinsic muscles. There was a very weak grip in both hands and he was unable even to hold up a chopstick. There were some sensory changes in the form of paresthesia involving both hands.
	Examination of the trunk showed that the intercostal and abdominal muscles were weak and sensation was totally absent from the level of the nipple (T4) down.
	Examination of there lower extremities showed that there was spasticity in both lower limbs and no voluntary movement possible. Examination of the external genitalia revealed that the patient was wearing a condom for the passage of urine as he was incontinent. The back muscles were also tense with little voluntary movement.
	The computer scan with contrast showed a clear cut transection of the spinal cord at the leve of C6-7 where there was a fracture dislocation. E. M. G. test confirmed the clinical findings of the sensory and motor involvement.
	Conclusion
	Mr Chan, as a result of the car accident, has sustained a fracture dislocation of the neck at the level of C6-7 with complete transection of the spinal cord at that level causing paralysis and sensory changes in all four limbs and there is complete involvement of the lower extremities.
	Although the cervical spine is now stable, it is most unlikely that he will have any useful recovery. He will be wheelchair-bound and incontinent, and the extent of weakness in both hands will make it difficult for him even to dress and feed himself.
	He should be assessed at 100% permanent disability."

6. I heard evidence from the Plaintiff, his wife and a male attendant just how that report is reflected in the life the Plaintiff now leads.

7. He is a married man, aged just 34 and with a ten year old son. Mentally alert and clearly, intelligent he is, to all intents and purposes, physically totally helpless. He is incontinent. If lying in bed he cannot sit up without help. He cannot get out of bed without being carried. He cannot dress himself. He cannot wash himself. He cannot even brush his own teeth or, as he told me, pick his teeth after eating. He does have a specially adapted spoon which is fastened in some way to his fingers so that if his wheelchair is pushed up to the table he can, after a fashion, feed himself.

8. This must be contrasted with his life as it was before the accident.

9. In 1968 he completed schooling at F5.

10. He then attended a telecommunications course for two years and then studied book-keeping for one year up to intermediate certificate. After that he studied at Hong Kong Polytechnic and obtained a certificate in insurance practice. He then obtained a position with an insurance company and was so employed at the time of the accident. His evidence, again unchallenged, was that he enjoyed travelling, swimming, playing football and mahjong. All, now, impossible for him.

11. There are two other important aspects in which his life has totally changed.

12. First, he will not be able to enjoy, or participate with his young son in, many of the activities they would otherwise have done. A great deal of the pleasure of fatherhood is denied him.

13. Sexual intercourse is impossible for him and I say only that both he and his wife are still comparatively young.

14. I have been referred to the categories of disablement set out in Lee Ting-lam v Leung Kam-ming (Civil Appeal No. 11 of 1980) and urged that the circumstances in this instance not only come clearly within that of disaster but in the upper range of that category. I think that is certainly right I have no doubt as to the plaintiff's physical condition and although his intelligence helps him to make the best of it, by, the same token it gives him on acute realisation of what lies ahead.

15. A starting point for awards for pain, suffering and loss of amenities in the disaster category has been suggested at $150,000. Allowance has to be made for the changed purchasing power of money since the date of that decision.

16. Taking-that starting point, allowing an average of 10% per annum increase and then increasing the figure from the minimum of disaster to one which reflects the position of the plaintiff I assess his damages under this head at $300,000.

17. There is no claim for lost years.

18. A number of items of special damage have been agreed. They total $11,955 and are accordingly awarded.

Loss of Earnings

19. At the time of the accident the Plaintiff was earning an average of $4,827.32 per month. This is evidenced by his employer's returns to the Inland Revenue and is unchallenged. He was paid by them up to 31 March 1982 and has, of course, earned nothing since. There is, no suggestion he would not have continued". to earn as before; though no evidence his earnings would have increased. His loss of earnings, therefore, to date amount to $4,827.32 x 13 = $62,755.00 which I award.

Loss of Future earnings

20. It is clear beyond peradventure that the Plaintiff will never work again. His disability is 100%. I have been referred to a number of authorities and take the proper multiplier in this case to be 14. As to the multiplicand the Plaintiff was comparatively young. at the time of the accident and could confidently expect his earning power to increase in the next few years. Allowing a modest expectation and minimal inflation I find $5,500.00 to be reasonable. My assessment of loss of future earnings is $5,500.00 x 12 x 14= $924,000.

Other Special Damages

	1.	Chinese medicine is claimed at $1,298.00 and special food it $4,800.00. The plaintiff's wife gave evidence that throughout the time he was in hospital and the Rehabilitation Centre she visited him daily and several times a week took him special nourishing soups and Chinese medicine.. It is now well accepted that in Hong Kong a reasonable figure is allowed for such items. I assess these together at $10 per day for the eight months the plaintiff was in hospital or Centre and one month thereafter.
		My assessment is $10 x 30 x 9 = $2,700.00
	2.	Travelling expenses are claimed at $5,000.00. The evidence is that the plaintiff's wife visited him daily. She did this even when she had to do so in the middle of the day and return to her own employment in the afternoon. Evidence was given inconsiderable detail of journeys using taxis, buses and the M. T. R. I am quite satisfied at least the sum claimed was properly spent and award it in full.
	3.	The Plaintiff engages a Chinese Doctor to give him massage. He says he finds it gives him some relief and that those in the hospital approved. I agree, and assess that the claimed figure of $6,350.
	4.	Loss of earnings of plaintiff's wife and cost of employing an attendant. The Plaintiff weighs some 130 lbs and his wife is slightly built. It would be quite unreasonable to expect her to be able to lift him about. he must have constant attention and the employment of a male attendant is reasonable and necessary. From March 1982 to February 1983 the attendant was paid $2,000 per month. I find that a reasonable salary and assess this head of special damage as $2,000 x 12 = $24,000. The attendant was then given what I consider a reasonable increase of $500 per month. His employment will continue to be necessary and for his future cost I use the same multiplier as for the plaintiff's loss of future earnings. My assessment is $2,500 x 12 x 14 = $420,000.

21. At the time of the accident the plaintiff's wife worked as an accounts clerk earning $2,075 a month. The family employed an amah at $850 a month. In February 1982 she gave up her job and devoted herself full time to her husband. The amah was dispensed with. The plaintiff claims for his wife's loss of earnings and future loss of earnings.

22. There is good authority that such a claim is proper if giving up her employment was reasonable and was necessitated by the accident. Here a male attendant is employed and it is difficult to find justification on purely practical terms. Certainly I accept the evidence that there are certain personal attentions the Plaintiff prefers to receive from his wife rather than from an employed attendant and that if she went out to work there would be times when neither she nor the attendant were at home. The real reason, however, emerged from the Plaintiff's own evidence. At one time he felt in despair and that his life was not worth living but "it is now a little better; my wife still loves me and will not leave me. I need her company most of all". Much the same come from her evidence. Quite clearly the comfort and companionship of a loving wife is one of the few remaining pleasures in the plaintiff's life. I cannot find it unreasonable for her to have given up her job in such circumstances. Whilst at home she performs those household duties formerly done by the amah. The saving in amah's wages is to be set off against the wife's lost wages.

23. I assess the loss in the 14 months since February 1982 to date as $2,075 - 850 x 14 = $17,150. Again, using the multiplier of 14 I reassess her loss of future earnings at $2,075 - 850 x 12 x 14 = $205, 800.

Summary

(1)	General damages for pain, suffering and loss of the amenities of life	$300,000.00
(2)	Agreed special damages	11,955.00
(3)	Loss of earnings	62,755.00
(4)	Loss of future earnings	924,000.00
(5)	Special foods and Chinese medicine	2,700.00
(6)	Travelling expenses	5,000.00
(7)	Massage	6,350.00
(8)	Cost of male attendant	24,000.00
(9)	Future cost of male attendant	420,000.00
(10)	Wife's loss of earnings	17,150.00
(11)	Loss of wife's future earnings	205,800.00
		$1,979,710.00 =========

24. There will be interest on the general damages at (l) from the date of service of the writ to today at the rate of 10.5% p.a. and on the special damages at (2), (3), (5), (6), (7), (8) and (10) at the rate of 5.25% p.a. from 20 July 1981 to today. There will be no interest on the special damages at (4), (9) or (11).

25. There will be costs to the Plaintiff.

(J. Betts)

Assistant Registrar

Representation:

T. S. Wong, Esq., of Messrs Michael Cheuk & Co for the Plaintiff

R. Wong, Esq., of Messrs P. T. Fung & Cc for both Defendants