Renny Cho Kwok Hung v. Fusilier Donald Evans and Others

HCA001686A/1972

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 1686 of 1972

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Coram: Macdougall, J.

Date of Judgment: 27th June, 1980.

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JUDGMENT

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1. This is an assessment of damages. The Plaintiff now aged 16 was five years eight months of age when while crossing a road he was injured by a motor vehicle driven by the first defendant. Judgment was given for the plaintiff on the question of liability. The evidence before me disclosed that the plaintiff suffered concussion, brain stem injury, contusion of the pelvis, retro and intra peritoneal bleeding, haematuria, post traumatic oligouria, post traumatic gastric bleeding, a laceration about 1½ amp;" long on the right eyebrow and several abrasions. He remained unconscious for some fourteen days after the accident and was totally unable to speak for almost six weeks. It was not until seven weeks after the accident that he was able to walk with assistance.

2. A medical report prepared three years later by Dr. Hui of the neurosurgical unit of Kwong Wah Hospital disclosed that the plaintiff was at that stage suffering from the following residual disabilities as a result of the accident.

3. A number of reports over a period of years by various doctors and an educational psychologist were put in evidence by consent. The following is a summary of the principal findings stated in those reports.

Sir Douglas Miller's report dated 9th July 1974

4. The plaintiff had suffered a severe head injury whose severity was indicated by the degree of unconsciousness which lasted for several days, his spastic limbs and the paralysis of his right side. From this injury the plaintiff made a gradual and good recovery and, four years after the accident, could be regarded as having reached a stable point in his progress. The undoubted result of the accident is the weakness of his right upper limb and his disinclination to use it. The assessment of mental damage must be less definite and the language communication problem made this assessment somewhat difficult. The school reports do not indicate any sign of scholastic ability but rather a struggle when it comes to mathematics and English. It can be argued with some justice that this type of head injury can result in brain damage of such a type that intellectual performance and intellectual development can suffer. With training it is quite likely that over the years he will improve mentally and have no lasting defect. On the whole, apart from the damage to the motor function of his right upper limb there is no real evidence of any other considerable or lasting disability.

Dr. Wedderburn's report dated 23rd September 1974

5. There is some wasting in the plaintiff's right arm and leg. Although the difference in measurements between the left and right limbs are not dramatic, such would be quite obvious even to a casual observer. The right hand is also wasted and the plaintiff now writes with and uses the left rather than the right hand and arm as the dominant limb. His manner of writing with his left hand appears most awkward. He does not have a limp but a limp tends to develop if he runs. He uses the left leg as the dominant limb on such occasions as kicking a ball. The markedly exaggerated reflexes in his right arm and leg indicate that he suffered brain and brain stem injury. The difference in the circumferential measurements of his limbs will become greater. The plaintiff showed lack of concentration and withdrawal into his own thoughts that is a departure from normal. He is good at school subject that involve memorising but is not so good at subjects that require constructive thinking such as mathematics or English. Sir Douglas Miller's finding that the plaintiff is slightly mentally retarded but that with constant supervision and teaching his mental ability may improve conflicts with his previous statement that his disability is stable. If the plaintiff is mentally retarded, the degree of mental retardation will remain, but with concentration on learning he may be able to maintain his present relative position in school. The weakness in the right limbs is a 3% permanent disability. It may be impossible to determine whether the accident reduced the plaintiff's intellectual capacity and ability so that he will not attain the same academic level as he would have done. Likewise it may be impossible to determine whether he will be able to attain an academic level that will allow him to enter university and, if he does not, whether it is due to the accident. The answers to such questions, if they are possible to answer, depend on the assessment of a child psychologist.

Dr. MacDonald's report dated August 13th 1975

6. The plaintiff's I.Q. of 86 is relatively low. It is practically impossible to assess this in terms of whether it is due to the accident or was present prior to the accident. It is no more than an impression but it is reasonable to expect that he was very much brighten prior to the accident. The verbal I.Q. and the performance I.Q. show practically no difference whatsoever, so it is impossible to derive any definite evidence of deterioration of intelligence. The plaintiff's behaviour was normal as was his interest in what was going on around him. There is no evidence of any particular difficulty in his ability to concentrate and his attention span seems to be satisfactory. No unusual behaviour was noticed. He is a well developed boy for his age. There are no physical abnormalities other than a moderate degree of weakness in the right arm and leg, although more in the arm than the leg. His right extremeties are considerably smaller than those on the left. His gait and stance are not abnormal and he can walk exceedingly well both on his toes and on his heels as well as in tandem fashion. In summary, from the purely physical view-point he has evidence of an upper motor neurone lesion affecting his right arm and leg. This would undoubtedly be the result of a car accident. The right arm has not kept pace in development with the left one, but there are no sensory abnormalities to be seen. The likelihood of focal cerebral seizures is relatively remote. The motor disabilities on his right side is permanent and it is doubtful that he will ever be able to use his right hand with facility. His disability is between 10% and 25%. He has a fixed lesion and his intellectual capacity in the future, if his I.Q. of 89 is accurate, is quite limited. It is extremely doubtful that he will ever be able to enter university. As a result of his accident the plaintiff is severely handicapped, because of intellectual difficulties, speech difficulties and motor abnormalities on the right side of his body.

Dr. Mehal's report dated 22nd November 1975

7. The plaintiff's tendon reflexes indicate an upper motor neurone lesion in the left cerebral hemisphere. There are no visual or auditory abnormalities. His speech is impaired and he speaks slowly uttering one word at a time. His physical disability consisting mainly in a weakness of the right sided limbs is of a permanent nature and has now stabilised. His I.Q. of 89 is rather low and his capacity to learn is therefore quite limited. It is doubtful that he will be able to enter university. He has suffered a severe head injury and has been handicapped both physically and mentally. His motor disability on the right side, speech impairment and intellectual difficulties are the result of the accident.

8. In a report dated 10th March 1978 Dr. Mehal said that he last examined the plaintiff in November 1977 and noted no further clinical improvement. He concluded that the plaintiff's progress had at that stage reached a stable point where no further improvement could be expected.

Dr. Horsfall's report dated 16th September 1978

9. The plaintiff is a healthy looking lad of average physical development. Abnormal signs were confined to the central nervous system. These consisted of some minimal slowness and slurring of speech. The right side of the face is flat and there is some weakness of the right arm and leg, particularly the hand. There is also some clumsiness in hand movements. Reflexes on the right side are exaggerated and the muscle masses are smaller than on the left. All signs point to a residual hemiparesis (partial paralysis) as a result of brain injury. The plaintiff was attentive cooperative and pleasant. There was no evidence of any behaviour disturbance nor of any neurotic symptoms. According to Miss Janie Lee, an educational psychologist, his I.Q. is 97. Although this I.Q. is within the normal range other factors noted by Miss Lee were impairment of memory, difficulty in understanding problems and below average practical knowledge. It is clear that despite the efforts of his parents his performance is still considerably worse than average for his age. His condition is now stable and no further improvement in motor power can be expected. There is now no likelihood of post traumatic epilepsy developing nor of any psychological effect as a result of changing the dominant hand. His left hand performance will improve with training. Since achievements in the intellectual field are governed by learning ability rather than by training it is unlikely that he has the intellectual capacity to enter a university.

10. Even the quantification of physical disability is a difficult task. Using Kessler's criteria physical disability is assessed at 9% of the whole man. Clearly Dr. Wedderburn's assessment of 3% is too low an assessment of a disability severe enough to make a child change his dominant hand. The quantification of impairment of intellect is well high impossible. His chances of entering university are virtually nil. On the balance of probabilities it is likely that the severe brain damage sustained in the accident has resulted in an impairment of the plaintiff's learning ability and will limit his educational achievements. Assessment of disability from intellectual impairment should be made on this basis.

Dr. Rosalia Cheng's reports dated 18th October 1978 and 22nd April 1980

11. In 1974 the plaintiff was functioning in the region of dull intelligence, having an overall I.Q. score of 87 on the Wechsler Intelligence Scale for children. He walked with a slight limp, exhibited weakness of muscle power over the right side of his body, spoke with a slur, and was slow and dull in his ideation and lacking in imaginative thinking. In his school performance which is poor his deficit was especially marked in tasks requiring calculations or abstract thinking. At the age of 10 he was unable to tell the time. He was anxious, timid, lacking in self reliance and manifested marked fear of failure. He showed no fear of cars on roads however. An electro encephalogram had revealed some sharp waves over the right parietal region which was consistent with brain injury.

12. In 1978 the plaintiff's limp was barely noticeable but, although improvement was apparent, the right limbs were still weaker than the left and this defect became apparent when finer skilled motoractivity was required. His overall intelligence quotient remained unchanged although there was some improvement in the verbal scores. He did not display any visual perceptual defect and his visual memory was good. It is hardly likely that he will be able to attend university.

13. In April 1980 the plaintiff had grown much taller but the muscle power of his right arm was still slightly weaker than the left and a slight clumsiness was evident in his right hand when performing fine skillful movements. Other than that no serious disability was noticeable apart from slowing of speech. He is still functioning in the dull average range of intellect and is especially handicapped in imagination and abstract thinking which makes it unlikely for him to enter university.

Miss Janie Lee's reports dated 14th September 1978 and 16th April 1980

14. In 1978 the plaintiff was found to be very pleasant, good natured and displaying no bitterness over the ordeal to which he had been subjected. He was most cooperative during testing and his application was good. He was functioning in the average range of intellectual ability. His full scale I.Q. on the Wechsler Intelligence scale for children was 97 (verbal I.Q. 100, non verbal I.Q. 94). In several of the sub-tests his ability was seen to be slightly below that of the average child of his age, for example in practical knowledge and social judgment and in information from experience and education. Other subtest scores indicated a special weakness in pschoperceptual ability, in the understanding and using of visually presented material within the social context. His performance during testing was particularly laboured and the quality of his work indicated an immaturity which should not be found in the usual work of a 14 year old. He showed a deficit in long term memory, and his memory span was shorter than children of his age. His speech lacked fluency and he struggled to remember common everyday words. It is impossible to say how much injury he has sustained in his cognitive ability. He stands little chance of achieving a university education although it is to be hoped that it will be proved otherwise.

15. In April 1980 the plaintiff had grown much taller. Rapport was easily established with him and he was outgoing and friendly. He showed a strong motivation to do well and was most cooperative during testing. He was more at ease speaking English than Cantonese although his mastery of English was not very strong. His weakness in practical knowledge and social judgment and in information from experience and education was still quite obvious. However psychoperceptual weaknesses detected 2½ years earlier were no longer evident. There were no pronounced difficulties in immediate memory span, in short term memory for both verbal and visual material and long term memory for meaningful material. He experienced mild difficulties with concepts on an abstract level. This would be disadvantageous the higher the plaintiff went in educational level. He would probably be unable to enter university.

16. It is apparent from an examination for all of these reports that there is by no means complete agreement between the doctors; indeed there is a considerable element of contradiction. As none of these doctors gave evidence before me I am left with no option but to extract as best I can some common denominator of agreement from the reports themselves. This is most unsatisfactory.

17. By agreement a number of school reports were put in evidence. The first of these was from the headmistress of the kindergarten the plaintiff had attended from September 1969 to July 1970. This report indicated that the plaintiff was "a bright, hardworking little boy and had made good progress" and that at the end of his year had been awarded the Progress Prize for Chinese.

18. At the time of his accident the plaintiff had not completed his first year at the Diocesan Preparatory School and therefore the results of two of the three subjects set for examination were not available. He had however sat for the English examinations. His average results for those examinations showed him to be below the class average; his personal average being 65.8% whereas the class average was 76.51% - a difference of almost 11%. In the six succeeding years, that is to say the years after the accident, his personal average for English was lower than the class average and the difference was generally about 22%.

19. Postaccident his personal averages for arithmetic and Chinese were also lower than the class averages but as no pre accident figures were available I am unable to draw any significant conclusion from his post accident results in these subjects.

20. The term reports from his school in Australia for the year 1978 indicated that initially the plaintiff was at or around the bottom of his class in most subjects. The reports did suggest however that his principal drawback was his lack of mastery of the English language. His last two term reports for his first year show that he was in the top third and top half of his class respectively for mathematics, the subject in which he was least dependent upon his knowledge of English.

21. The 1979 term reports although revealing that he had dropped in his position in the class in mathematics his average marking for that subject was comparable with that of the previous year. In other subjects the plaintiff displayed noticeable improvement and assessing his average marks for each subject he rose from the bottom of his class to a point about one third from the bottom.

22. It would not, I think, be unreasonable to assume that as the plaintiff's grasp of English improves so will his position in the class. His three best subjects appear to be mathematics, science and commerce. The marks for his other three subjects, history, geography and English, are noticeably lower.

23. The three heads of damages under which the plaintiff's claim is framed are special damages, damages for loss of future earnings and damages for pain and suffering and loss of amenities. I propose to deal with each in turn.

24. Special damages (a) Evidence for the plaintiff The only witness called for the plaintiff was his father, Dr. Cho Hoy King, who testified that after the accident the plaintiff's schoolwork was slow, that he had become forgetful and that he was clumsy and walked with a slight limp. Because of his dissatisfaction with the plaintiff's progress, Dr. Cho and his wife took him to Australia in August 1972 to see Sir Douglas Miller, a world renowned neuro surgeon. In order to obtain excursion fares Dr. Cho, his wife and the plaintiff remained in Australia for fourteen days.

25. Dr. Cho testified that Dr. Wen Hsiang-lai, the honorary consultant to the neuro sugical unit of Kwong Wah Hospital, had been in favour of the idea of taking the plaintiff to see Sir Douglas Miller. In cross examination, however, Dr. Cho conceded that Dr. Edmund Cheung, whom he agreed was the pre-eminent neuro surgeon in Hong Kong and who had treated the plaintiff on his admission to Queen Elizabeth Hospital immediately following the accident, had advised him that there was no treatment that could be given to the plaintiff other than that he was already receiving. Furthermore, Dr. Cho admitted that other doctors had advised him that the only facility not available in Hong Kong was a certain type of electro encephalogram. When asked whether he had taken the plaintiff anywhere to have this electro encephalogram performed; Dr. Cho said that he had hoped to have it done on his first trip to Australia but that in fact he did nothing about it. I think that it is a fair inference from all of the evidence that such an encephalogram was never taken although Dr. Cho took the plaintiff to Australia for consultation with Sir Douglas Miller on three separate occasions, to Canada on one occasion for consultation with a Dr. Hugh MacDonald and, whilst on the latter trip, to the United States of America also.

26. Dr. Cho also agreed that although he had taken the plaintiff to see Sir Douglas Miller on three occasions over a two year period, Sir Douglas did not recommend any special therapy over and above the treatment that the plaintiff had already been receiving. Moreover, Dr. Cho admitted that he had discussed the long term prognosis for the plaintiff with Dr. Mehal and Dr. Hui, both of whom had been treating him, and they had told Dr. Cho that the only policy to adopt was one of "wait and see", that is to say to observe and see if there were any developments. Dr. Cho told the court that although he was not dissatisfied with this advice, he decided to take the plaintiff to Sir Douglas Miller for consultation because he "only thought that the plaintiff's progress was not good". When counsel for the first defendant put it to Dr. Cho that since at that stage the doctors were concerned with responses to questions and reactions to external stimuli, if Sir Douglas Miller was to be able to come to any meaningful assessment of the plaintiff's condition or to offer any reliable prognosis, the consultation would need to be conducted in Chinese, Dr. Cho replied "May be in a way, but the examination can't depend on just questions alone", and again, "there is always the physical examination, for example, the electro encephologram investigation." He did, however, specifically concede that language was one of the factors that a neuro surgeon would need to consider. In this connexion it is not without significance that in his report Sir Douglas Miller stated that the plaintiff did not speak English when he first saw him and that therefore he was unable to assess his intellectual status.

27. Dr. Cho relied heavily on the fact that Dr. Wen was in favour of his taking the plaintiff to Australia for a consultation with Sir Douglas Miller. However he admitted that even Dr. Wen had told him to wait and see what developments occurred, and that he was content with the answers that Dr. Wen had given him concerning the plaintiff's progress. He also conceded that when he had asked Dr. Wen if it was worthwhile taking the plaintiff to see Sir Douglas Miller he knew that the situation was one of waiting and seeing. It seems evident to me therefore that Dr. Wen's advice was really to the effect that although in his view the appropriate course of action was to wait and see, nevertheless, if Dr. Cho wished to put his mind at rest and satisfy himself that all that could be done was in fact being done, a consultation with Sir Douglas Miller would be advantageous.

28. Dr. Cho testified that he took the plaintiff to Sir Douglas Miller in Australia on two further occasions for consultations and explained that he did so as follow up annual checkups on Sir Douglas' recommendation. Dr. Cho's wife did not accompany him on these two latter trips. In August 1975, a year after his last visit to Australia, Dr. Cho, accompanied of his wife, took the plaintiff to Halifax Nova Secotia for a consultation with Dr. MacDonald.

29. The reasons given by Dr. Cho for this consultation were that he had heard from his brother who was in practice as a doctor in Halifax that Dr. MacDonald was a neuro physician well known in Halifax and Canada and that as the plaintiff's progress was not as rapid as he would have liked Dr. Cho thought that another consultation might help.

30. In cross examination Dr. Cho conceded that as only four of the eighteen days spent on this trip were devoted to the visit to Halifax, the $8000 claimed for hotel and incidental expenses was excessive. He did not indicate how much of that $8000 in fact related to the stay in Halifax. In his amended statement of claim the plaintiff also claimed the sum of $4,700 in respect of Dr. Cho's loss of earnings in accompanying the plaintiff to Canada. In his evidence, however, Dr. Cho was only able to justify $800.

31. In his amended statement of claim the plaintiff also claimed $50,400 for special food, medication and nourishment at the rate of $600 per month for a period of 84 months. However, Dr. Cho was unable to produce any bills or receipts relating to these items. He said that in April or May 1971 Dr. Hui had prescribed a drug named encephabol whose function is to economise metabolism of the brain and assist in blood circulation within the brain, a product named neurobion which is a B complex vitamin preparation and vitamin C. He also testified that it was necessary to maintain administration of these medicines for three years after the accident. He also said that from December 1977 when the plaintiff departed from Hong Kong to reside permanently in Australia he continued to administer these medicines to the plaintiff and is still doing so even at the present time. However, Dr. Cho then went on to say that Dr. Hui had not specified the period of time for which the medication should be taken but that he, Dr. Cho, had continued administration of all three medicines because he thought that they were conferring some benefit on the plaintiff. He said that he had paid between $80 and $90 a month for the medicines from April or May 1971 to the present time. Furthermore he said that, apart from Dr. Hui, he had not consulted any doctor on the subject of medication for the plaintiff. The claim for special food was abandoned.

32. The next item of special damage in the amended statement of claim relates to expenditure for private tuition in school subjects and fees for piano, Chinese brush writing and painting lessons, all of which were designed to assist in the restoration of the plaintiff's manual dexterity. The amount claimed is $63,000 and covers a period of seven years.

33. Dr. Cho testified that two or three months after the plaintiff's discharge from hospital on 24th January 1971, Dr. Hui prescribed physiotherapy treatment for the plaintiff and that as a consequence the plaintiff attended the physiotherapy department at Queen Elizabeth Hospital for two to three years. He attended three times a week until he recommenced schooling in September 1971. Thereafter he went on Saturday mornings only. Dr. Cho said that some unidentified person or persons at the physiotherapy department recommended that the plaintiff be given piano lessons to exercise his hands. These lessons were given to the plaintiff by a private teacher who attended at the plaintiff's home from about January 1972 to the end of 1977 at a monthly rate of $200.

34. In addition to this Dr. Cho provided private tuition for the plaintiff in Chinese brush writing and painting for the same period at a monthly rate of $100 and $150 respectively. There was no evidence that either of these forms of tuition were recommended by anyone. Furthermore the period referred to by Dr. Cho in his evidence relating to the piano, Chinese brush writing and painting lessons spanned six years, not seven years as claimed in the amended statement of claim; nor did the evidence that the cost of piano lessons was $200 a month tally with the amount claimed namely, $150 a month.

35. There was no evidence that these costly lessons which continued for such a protracted period of time were really justified. I have no doubt that, if this tuition was recommended at all, it was on the basis that it would be helpful if it could be afforded, not that it was necessary. It was apparent to me from his evidence and from various observations in some of the agreed medical reports, that Dr. Cho and his wife were most indulgent parents who were prepared to spare no expense in restoring the plaintiff to full health and normality. I do not say this in any critical sense but, at the same time, I do not see why the defendant should be saddled with expenditure incurred in providing the plaintiff with luxurious facilities.

36. The private tuition was provided as a supplement to the plaintiff's schooling because Dr. Cho was of the view that he was backward in his school-work. This tuition, according to Dr. Cho, extended from January 1972 to the end of 1977 at the rate of $400 a month. The amount claimed in the amended statement of claim, however, was $350 a month for a period of seven years, not six as stated by Dr. Cho in his evidence.

37. In his report Dr. MacDonald stated that it was his impression, on talking to the parents, that the plaintiff was being pushed to the limit as far as learning is concerned. In fact, on the final page of his report he added that his overall impression on talking to the parents was that they were pushing the plaintiff beyond his limits and were expecting far more than was possible from him. Dr. Wedderburn expressed the opinion that such long hours of study that the plaintiff's parents required him to perform may have contributed to his lack of concentration. Dr. Rosalia Cheng in her report dated 22nd April 1980 also referred to the "very high aspirations and expectations the parents had for their only child".

38. Such views only serve to reinforce the impression that I gained that Dr. Cho and his wife were determined to spare no cost or effort in an attempt to rehabilitate the plaintiff.

39. In the light of these considerations I have come to the conclusion that I would not be justified in allowing more than the cost of one year's extra curricular tuition at the rate of $350 a month. I disallow the expenses for piano, painting and brush writing lessons.

40. The plaintiff also claims the expenses allegedly incurred for a period of two years after the accident in hiring a driver to transport him to the Diocesan Preparatory School, to the doctor for medical consultation, to physiotherapy treatment and to recreational exercise. No mention was made in the particulars of special damage in the amended statement of claim to transportation of the plaintiff to school; and in the further and better particulars given by the plaintiff reference is made to transportation for this purpose but there is no mention of transportation for the purpose of physiotherapy treatment.

41. The only evidence on the subject of transportation expenses was that given by Dr. Cho who testified that he hired a chauffeur to drive the plaintiff to and from school, the hospital and the beach. Dr. Cho said that the chauffeur also conveyed him to his surgery every morning. In cross-examination Dr. Cho admitted that prior to the accident he sent the plaintiff to school in a taxi accompanied by his amah, and that the kindergarten which the plaintiff attended prior to the accident is about the same distance from his home as is the Diocesan Preparatory School. He also said that when the chauffeur was not engaged in driving the plaintiff to and from school he merely waited at home and was not used for any other purpose.

42. Since Dr. Cho used the services of taxis to transport the plaintiff to school prior to the accident and since, in any event, the plaintiff did not attend school from the date of the accident, namely 1st December 1970, until September 1971 nor obviously did he do so during school vacations, I am not satisfied that this claim is justified. In this connexion there was no evidence as to the frequency of the plaintiff's visits to the hospital or to the beach or any other place for recreational exercise. Moreover there was no evidence as to the distance of these places from the plaintiff's home, or of the impracticability of any alternative means of transportation. I disallow this claim.

43. Dr. Cho testified that two years after the accident he secured the services of a pak pai to take the plaintiff to school. He said that the amah accompanied the plaintiff on these trips and that other children used the same vehicle to travel to the same school. I disallow this claim for the same reasons as I have disallowed the claim for chauffeur's wages.

44. The final item of special damage is the cost of employing an amah to care for the plaintiff for a period of seven years after the accident. Dr. Cho gave evidence that when the plaintiff was born he employed an amah to care for him and that had it not been for the accident her services would not have been required after the plaintiff had attained the age of 9 or 10. In cross-examination Dr. Cho said that he treated the amah as a member of the family and that he still paid her some tea money. Although it may have been necessary to employ an amah to care for the plaintiff for a reasonable time after the accident I do not accept that it was necessary to continue to employ her after the plaintiff attained the age of 9 or 10, that is to say more than 3 to 4 years after the accident. Since Dr. Cho would in any event have employed the amah until the plaintiff reached 9 or 10 years of age I disallow this item also.

(b) Evidence for the 1st defendant

45. The first defendant called a neuro surgeon, Dr. Fali Shroff, principally to give evidence as to the whether the plaintiff's trips to Australia and Canada for consultations with Sir Douglas Miller and Dr. Hugh MacDonald were medically justified. Dr. Shroff testified that he had acquired some 20 years experience in dealing with cases such as the plaintiff's. He said that considering the nature and extent of the plaintiff's injuries and having read all the relevant medical reports there was little that could be done as far as treatment was concerned, and that the practice was to keep patients such as the plaintiff under observation so that if complications arose they could be treated specifically. He very much doubted that in the years 1972 to 1975 there was any treatment that the plaintiff should have received additional to that which he had been receiving. He said that there was nothing in either Sir Douglas Miller's report or Dr. MacDonald's report that indicated any treatment or investigation that had not already been given or conducted in hospitals in Hong Kong. Furthermore, he expressed the view that it would be difficult to come to any proper assessment of the residual intellectual injuries to a patient such as the plaintiff if the patient did not speak in a language comprehensible to him. He added however that although it would therefore have been preferable for the plaintiff to have seen a Chinese speaking neuro surgeon, the language factor would have no bearing on any physical assessment. Dr. Shroff also expressed the opinion that the continued administration of encephabol and neurobion would not be justified after a period of six months from initial administration unless improvement was manifest.

46. When asked in cross examination whether he thought Dr. Wen was correct in viewing with favour Dr. Cho's suggestion that the plaintiff should be taken to see Sir Douglas Miller, Dr. Shroff replied that he personally would have said that Dr. Cho had nothing to lose in taking the plaintiff to Australia but that he would have little to gain. He would have told Dr. Cho that if he could afford such a trip then certainly he should go and satisfy himself. He emphasised that he would not have spontaneously suggested that the plaintiff be taken abroad for such a consultation. Later in his cross examination Dr. Shroff said that although at the first consultation Sir Douglas Miller had suggested an annual follow up consultation and likewise the following year, such was not indicated and, although it was not medically wrong to make such recommendations, they were unjustified in that the later visits were unnecessary since no further improvement could be expected in the plaintiff's condition.

47. Dr. Shroff maintained that his view was borne out by the fact that Sir Douglas Miller had made no recommendations. He said that if it was assumed that the first consultation was justified then a second visit a year later may possibly have some justification in that after guaging whether there was any improvement in the strength of the plaintiff's right limbs he would have been able to tell the parents whether there was any hope of improvement. He said that beyond that consideration there was nothing to be gained and that he personally would have so advised. In his view the third trip was totally unjustified for whatever reason. Dr. Shroff also read his reports (Exht. D1). In that report he made it clear that neither Sir Douglas Miller nor Dr. MacDonald stated anything in their reports that was not already known to the doctors who had treated the plaintiff in Hong Kong and that neither of these two doctors prescribed or advised any treatment for the plaintiff for the simple reason that none was available. Finally, he expressed the view that during the relevant period there were at least three competent neurosurgeons in private practice in Hong Kong, any one of whom could easily have handled the plaintiff's case.

48. I am in respectful agreement with Huggins J, as he then was, when he said in P.J. Brink (No. 1) v. New P.G. Farm (1965) HKLR 1001 at 1025

"No one can deny the right of a patient to be treated by the surgeon of his choice but it does not follow that the whole of the cost must necessarily be reflected in damages payable to him. It is a question of what is reasonable in all the circumstances. One of the considerations is whether appropriate treatment can be obtained less expensively on the spot."

49. On the evidence both of Dr. Shroff, who I found to be a most impressive witness, and on the evidence of Dr. Cho himself I am satisfied that the trips to Australia and Canada were not justified except insofar as they might have satisfied the plaintiff's parents that they had exhausted every possible avenue of advice and investigation, however remote the chance might have been that any one of these avenues may have proved productive. This is not sufficient reason to saddle the first defendant with the expenses claimed in connexion with these trips. I therefore disallow these expenses.

50. As to the claim for the cost of medication, I accept the evidence of Dr. Shroff that unless there was manifest improvement in the patients condition after the administration of neurobion and encephobal for a period of six months, continued administration was unjustified. Dr. Shroff also stated in his report that during the post convalescent period in a case where the existence of brain damage has already been established there is no known medication available that will reverse the process of brain damage and no known medication is available that will increase the intellectual capacity of such a patient. I found the evidence of Dr. Cho on the subject of medication, as on other aspects of this case, to be less than persuasive. Furthermore there was no documentary evidence by way of receipts, bills or prescriptions, nor was there any other evidence to support the claim. I therefore allow the claim for medication in the sum of $480 only as being the cost of the encephobol, neurobion and vitamin C for a period of six months calculated at the rate of $80 per month.

51. Accordingly, out of what can only be described as an extraordinarily inflated claim of $289,100 for special damages, I award a total of $4,680 being comprised of $4,200 for extra curricular tuition and $480 for medication.

Loss of future earnings or earning capacity

52. Earlier I observed that none of the doctors who treated the plaintiff or attempted an assessment of the extent of his injuries, nor the educational psychologist, Miss Janie Lee, gave evidence in these proceedings. I therefore find myself in some difficulty in resolving the contradictions, be they real or apparent, in the reports the essential parts of which I have already summarised.

53. Sir Douglas Miller indicated that the type of head injury sustained by the plaintiff can cause brain damage resulting in the impairment of intellectual performance and intellectual development. He was unable to give any definite view as to whether this had occurred to the plaintiff. However he did express the view that apart from the damage to the motor function of the plaintiff's right upper limb there was no real evidence of any other considerable or lasting disability. Indeed, he said that with training it is quite likely that over the years the plaintiff will develop mentally and suffer no lasting intellectual defect.

54. In a nutshell what Sir Douglas Miller seems to have concluded in his report is that there is no conclusive evidence that the accident caused a brain injury resulting in intellectual impairment but even if such was the case there would be no lasting intellectual disability.

55. Dr. Wedderburn concluded that it may be impossible to determine whether the accident reduced the plaintiff's intellectual capacity and ability to the extent that he would be unable to reach the same academic level as he would have done but for the accident. He referred the plaintiff to a child psychologist for an assessment of whether or not there was any mental retardation and, if so, whether it was due to the accident.

56. Although it is not evident from the reports, I surmise that Miss Janie Lee is the psychologist to whom Dr. Wedderburn referred the plaintiff. In any event, Miss Lee, without saying so positively, implies that the plaintiff had suffered intellectual impairment as a result of the accident. I say this because in her report she says that it is impossible to say how much injury the plaintiff sustained in his cognitive ability but that he gives a picture of one who has lost much and who has courageously fought back and through sheer effort has managed to regain some of his skills.

57. Dr. MacDonald wrote in his report that it is practically impossible to assess whether the plaintiff's I.Q. of 86 was due to the accident or was present prior to the accident. However it was his impression, and he emphasised that it was purely an impression, that the plaintiff's I.Q. of 86 was the result of the accident and that he would have expected the boy to have been very much brighter prior to the accident. At the conclusion of his report he expressed the opinion that the plaintiff was severely handicapped because of his intellectual difficulties, speech difficulties, and right sided motor abnormalities and that these were the result of the accident.

58. Dr. Mehal also concluded that the plaintiff's motor disability on the right side, speech impairment and intellectual difficulties were the result of the accident.

59. Mr. Horsfall was of the view that on the balance of probabilities the severe brain injury sustained in the accident resulted in the impairment of the plaintiff's learning ability and would limit his educational achievements. He added that the quantification of impairment of intellect is well nigh impossible but that it is sufficient to prevent attainment of professional status.

60. Dr. Rosalia Cheng seems to presuppose that the accident caused brain injury resulting in intellectual impairment. She does not give any indication of the degree of such impairment.

61. Despite Sir Douglas Miller's undoubted eminence in this field of medicine, I find it difficult to escape the conclusion that the accident did in fact result in intellectual impairment.

62. When then is the degree of intellectual impairment and its likely consequences upon the plaintiff's future earnings or future earning capacity? On the evidence before me, although it seems impossible to quantify the degree of impairment, I consider that, whatever that degree may be, the plaintiff most probably will be deprived of a professional career dependent on a university education.

63. Unfortunately no evidence was given as to what kind of occupation the plaintiff will eventually be fitted to pursue. Consequently I have been given no idea as to what he may be expected to earn in the future. It may well be that in not being able to pursue a medical career the plaintiff may enter commerce or some other career where the financial rewards are as great as, if not greater than, those in medicine. This of course is pure speculation.

64. Notwithstanding the total absence of evidence on what career the plaintiff might be able to pursue Counsel for the plaintiff has urged me to treat this claim not as one for loss of future earning capacity but as one for loss of future earnings, and to adopt the conventional multiplier/multiplicand method of assessing damages. Counsel argued that I should apply a multiplier of 12, certainly one no lower than 10, to a multiplicand derived from an upper figure based on Dr. Cho's own income of $100,000 for the accounting year ended March 1978 when he left Hong Kong, and a lower figure calculated on what the plaintiff would receive as a clerical officer in the Hong Kong Government. I was invited to consult the latest annual Salaries Commission Report to ascertain and take judicial notice of the current salary of a clerical officer. If I understand him correctly, counsel's invitation extended to an examination of the various classes of Government officers including doctors in order to arrive at a suitable multiplicand.

65. Apart from the fact that I do not think that it would be right for me to take judicial notice of the contents of such a report, I am unable to see any justification in alighting on the post of clerical officer or for that matter any other post in Government service as the type of employment to which the plaintiff can now aspire. I repeat, there was no evidence whatsoever to indicate the type of employment or career for which the plaintiff would eventually be suited.

66. Counsel for the plaintiff referred me to the case of Lightowler v. Thomson reported in the supplementary list of unauthorised awards for injuries to brain and skull in Kemp and Kemp Volume 2 at page 3108. This case, although it had features in common with the instant case, was one in which injuries sustained involved substantially greater consequences. The brief note of the case disclosed that the plaintiff's previous prospects of a lucrative professional career (both his parents being highly qualified in the medical field) was ruined and that medical advisers now had difficulty in predicting any kind of work likely to suit him. Damages for future loss of earnings were assessed by means of a multiplier and multiplicand. It is to be noted however that the report does not say that the medical advisers did not predict or were unable to redict any kind of work likely to suit the plaintiff. It seems to me that in order for the Court to calculate a multiplicand, the advisers must have indicated, albeit with difficulty, some type of occupation open to the plaintiff. I therefore do not derive any assistance from that case.

67. I was also referred to Taylor v. Bristol Omnibus Co. Ltd. (1975) 2 ALL E R 1107 where in assessing loss of future earnings for a young boy suffering from severe brain injuries, the court took the yardstick of the father's occupation and applied a multiplier of 16. This case however, is very much different from the instant case in that the court was concerned with a boy who would never be employable. It therefore was not required to determine a figure based on what the plaintiff was likely to earn and to offset it against the upper figure reflected by the father's income. Neither Daish v. Wauton (1972) 2 Q.B. 262 and S v. Distillers Co. (Biochemicals) Ltd. (1969) 3 ALL E R 1412, both of which were referred to by Lord Denning M R in Taylor's case at page 1113, do not assist counsel for the plaintiff in his contention that I should adopt a multiplier/multiplicand approach. In Daish's case the plaintiff who suffered severe brain injury at the age of 5 was unable to pursue a career and was obliged to pass the rest of his life in a national health institutions. The task of determining a probable future income did not therefore arise. In S. v. Distillers' Case, Hinchcliff J. made global awards in respect of two plaintiffs who had been born deformed due to the effect of thalidomide. Neither case seems to me to lend any support to counsel's contention.

68. Counsel also cited the case of Lam Mei Lan v. Leung Yuk & others High Court Action 676 of 1979 where the evidence disclosed that the plaintiff who sustained brain injury at the age of 4½ years would never be able to do any work which required any substantial use of her brain and that she could never become a secretary, a position which she could otherwise have achieved, although she might become a typist or a factory worker. In this case, however, Mr. Commissioner Lee was in the fortunate position of having the parties agree on the current level of earnings for secretaries and factory workers. The learned Commissioner was thus able to apply the conventional multiplier/multiplicand method. In the instant case, although I adjourned the proceedings to enable the parties to come to an agreement on matters relevant to the making of an award by means of the multiplier/multiplicand method, they were totally unable to do so.

69. Counsel for the 1st defendant referred me to the case of Ashcroft v. Curtin (1971) 1 WLR 1731 where the Court of Appeal concluded that although the plaintiff, "a one man company", had probably suffered financial loss based on a decline in the profitability of the company since the date of the plaintiff's accident, the company's accounts were so rudimentary that it was impossible to quantify the loss and that therefore the trial judge's award should be set aside. However, as the plaintiff's injuries had prevented him from carrying on his profession as an engineer, although he was still able to run the company, the Court substituted an award for loss of earning capacity.

70. Counsel for the defendant also cited Fairley v. John Thompson Ltd. (1973) 2 Lloyds Reports, page 40. In this case the Court of Appeal set aside an award for future loss of earnings where the evidence was that the plaintiff whilst enjoyed in his job as a fitter erector had suffered injury after a fall from a height and that after the accident as he was no longer able to tolerate heights was employed on the ground as a fitter at the same salary he would have received had he gone aloft. The Court took the view that the plaintiff's loss was not a loss of future earnings but a loss of earning capacity.

71. Lord Denning MR in his judgment said. "It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages."

72. Although there had been no evidence that in the future the plaintiff would receive higher income for going aloft than for working at ground level, the trial judge took the view that the plaintiff would suffer some loss of future earnings and felt obliged to make a guess at what that loss would be. The Court held that in doing so he had fallen into error because the loss that the plaintiff sustained was not one of future earnings capable of assessment and proved by the evidence, but a loss of earning capacity, compensation for which comes under the heading of general damages. The fact that the plaintiff was circumscribed in the choice of his employment but not being able to go aloft did not in itself entitle the trial judge to award him damages for loss of future earnings.

73. I can see no distinction in principle between these cases and the instant case. The plaintiff has not adduced any evidence from which I am able to quantify any loss of future earnings. Indeed it has not even been established that there will be any such loss. What has been established to my satisfaction however is that the plaintiff has lost an earning capacity. Because of his impaired intellect he will be unable to enter university and become a doctor or follow any other professional career dependent up on a university education. He will thus never experience the satisfaction and pleasure of pursuing such a career. He has lost an earning skill. He is no longer as versatile as he would have been. His choice of careers is limited. At page 135 in volume 1 of Kemp and Kemp the authors, in dealing with the subject of how prospective loss is assessed in practice, express the view that where the plaintiff is a child or youth and has not commenced on any career and so there is no figure for net annual loss at the date of trial, the Court is really reduced to pure guesswork. The authors go on to say that it is very rare for the Court to attempt to divide the award of general damages into separate heads and that usually one global sum is assessed, its amount varying with the seriousness of the plaintiff's injuries.

74. Counsel for both parties have agreed that an award of $70,000 for pain and suffering and loss of amenities would be appropriate. It is perfectly clear that they did not include in this figure any allowance for loss of earning capacity. They seek my approval for settlement in this sum.

75. I propose however to follow the prcatice referred to in Kemp and Kemp and will not attempt to divide the award for general damages into separate heads. On a consideration of all of the evidence before me and bearing in mind that I am required to resort to guesswork based on instinct I award a lump sum of $150,000 in respect of general damages.

76. In considering the aspect of loss of earning capacity I have taken into account three factors. First, that had it not been for the accident the plaintiff would have pursued a medical career. In doing so he would not be earning income for another 9 or 10 years. Now, however, by not pursuing a University course he will be able to earn an income much earlier than otherwise. Second, that he will now receive a lump sum payment some 9 to 10 years before the time he would have embarked on a medical career. Third, the vicissitudes of life.

77. There will be judgment for the plaintiff in the sum of $154,680. In accordance with the rule in Jefford v. Gee I award interest at the rate of 9% on the sum of $150,000 from the date of service of the writ until the date of trial, and interest at the rate of 4½% on the sum of $4,680 from the date of the accident, namely 1st December 1970 to the date of trial.

78. Having heard both counsel on the question of costs I order that the plaintiff be granted all costs incurred up to 15th April 1980 and the costs of the first day of the hearing with certificate for counsel. I further order that the first defendant be granted all costs incurred after the 15th April 1980 with the exception of the first day of the hearing, and that certificate for counsel be granted for the remainder of the hearing.

Representation:

Mr. Robert Wei, Q.C. and Mr. Wally Yeung (Johnson, Stokes & Master) for Plaintiff

Mr. N. Pirie (Hastings & Co.) for 1st Defendant.