Law Yuen Wan and Another v. Tai Kam Tong and Others

HCA005443/1979

Claim for damages by child injured in road accident when she was 4 1/2 years of age. Actions of child would have constituted negligence in an adult. Court because of tender years of the child negatived contributory negligence. Child suffered brain damage which affected her behaviour and would to some extent affect her capacity to cope with life as an adult. Factors to be considered when assessing damages in this regard.

BETWEEN

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Coram: Hon. Power, J.

Date: 4 November 1983

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J U D G M E N T

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1. In this matter the Plaintiff Law Yuen Wan an infant, sues by her mother and next friend Ng Yuk Ying. The plaintiff is suing for injuries, pain and suffering and permanent disabilities suffered in a traffic accident which took place on the 4th January 1978 at about 2.45 p.m. at Fuk Hang Tsuen Road near the Fuk Hang Tsuen Rural Committee in the New Territories.

2. The plaintiff was at this time crossing the said road when she came into a collision with a truck AG6696 which was owned by the 2nd defendant, Yau Shiu Chu. and was being driven by the 1st defendant, Tai Kam Tong, in a northerly direction along the said road.

3. At the time of the incident the plaintiff was 4 1/2 years of age and was a pupil at a kingergarten run by the 4th defendant, the Fuk Hang Tsuen Rural Committee, at which the 3rd defendant was employed as a teacher. Immediately before the accident, the plaintiff, together with the other children, had been under the supervision of the 3rd defendant waiting to cross the said road. The Rural Committee building, in which the kingergarten was situated, is on the eastern side of the roadway and a lane, which comes from the roadway, runs along the southern side of the committee building. Fuk Hang Tsuen Road is a dual carriage-way about 22 feet in width which leads from Castle Peak Road to the Asia Quarry. It is macadamized, and has concrete gutters and made footpaths. It serves residents who live in villages in the area however its main purpose appears to be to serve as an access road for heavy vehicles going to and from the quarry. The vehicle being driven by the 1st defendant was such a vehicle. Shortly before the incident a vehicle (the fodder vehicle) being driven by Mr. Tang Kuen Hing drew up and parked on the eastern (wrong) side of the roadway just south of the lane which runs in beside the Rural Committee building. There is some dispute as to whether or not this vehicle was parked on the roadway or partly straddling the gutter. It was carrying fodder and was at the time of the accident in the process of being unloaded by coolies.

4. The owner Mr. Tang who gave evidence said that at the time of the incident he was standing at the right-hand front corner of his vehicle. There is considerable dispute as to whether or not this vehicle would have concealed or partly concealed the children and adults standing on the pavement waiting to cross the roadway. The vehicle being driven by the 1st defendant was empty and was proceeding in a northerly direction towards the quarry to pick up a load of stone. On the western side of the roadway about 20 yards back from the area where the school is situated there is a parking lay-by into which a Mr. Wong Tim Lurk drove his dump truck shortly before the accident. Mr. Wong says that he had parked there because he wished to go to a garage which is on the eastern side of the roadway to obtain tools which he was going to use to change the oil in his vehicle. He said that he had just alighted from his vehicle and was about to cross the roadway when the vehicle driven by the 1st defendant passed in front of him travelling in a northerly direction. He says that he was able to see the whole of the incident. There is no dispute that at the time of the accident the plaintiff was running across the roadway and that she came into contact with the vehicle being driven by the 1st defendant. There does not seem to be any dispute that the point of contact was the rear offside of the vehicle.

5. A police officer came to the scene shortly after the incident and drew a sketch map which is Item 1 in the agreed bundle. This shows a blood stain on the roadway just south of the entrance to the lane and in about the middle of the road. The position of this stair is consistent with the plaintiff having come from a position somewhere about the mouth of the lane and having run into the rear of the goods vehicle. The goods vehicle was found by the police officer to be on its correct side of the roadway at a slight angle and its front was about 40 feet north of the blood stain.

6. There is no doubt that the plaintiff ran out onto the roadway when it was unsafe for her to do so. As regards the defendants the real issues are whether the 3rd defendant was careless in her supervision of the plaintiff and whether the 1st defendant was careless in that he failed to keep a proper look-out and drove at an excessive speed in the circumstances.

7. I now turn to deal with the evidence of the witnesses as to liability.

8. Mr. Wong Tim Lurk, the driver of the truck parked in the layby, did not give any statement to the police at the time of the incident but only came forward some five years later when he heard that the plaintiff's parents were looking for witnesses to the incident. Having heard the evidence I am satisfied that there was nothing sinister about this. I accept that Mr. Wong came forward in good faith and described the incident as he remembered it. He said that he had been driving to and from the quarry for a period of one to two years prior to the accident and that he knew the 1st defendant and recognized him when he drove his vehicle past him on the date in question. He said that he was waiting to cross the road and that he saw the fodder vehicle had parked on the wrong side of the road near the kindergarten. He said that this vehicle was stationary just south of the mouth of the lane. He said that it was parked close to the payement and that goods were being unloaded from it at the time. He said that he saw a vehicle coming down from the quarry at about this time, a 6 ton Isuzu dump truck, and that this vehicle stopped on the roadway outside the school. He said that it appeared to him that the vehicle stopped because the vehicle driven by the 1st defendant was going up and there would not have been enough room for that vehicle to proceed between the defendant's vehicle and the vehicle of Mr. Tang. He said that he saw small children on the pavement on either side of the lane and there were some adults leading them. He was not clear as to the number of either the adults or the children. He said that the vehicle driver by the 1st defendant was proceeding at 25 to 26 miles per hour and that after it had passed Mr. Tang's vehicle, a small child darted out and fell down after having been hit by the right-hand side of the vehicle. He said that the speed of the vehicle prior to the collision was a comsistent 25 to 26 miles per hour. He said that the vehicle did not brake prior to the collision and that after the collision had proceeded forward 10 to 20 feet before coming to a stand-still. He said that a person sitting in the cabin of a vehicle, as was the 1st defendant, would not be able to see the children before he went past where he was standing waiting to cross the road, but that he would be able to see them after passing the lay-by.

9. Under cross-examination the witness said that he based his estimate of speed on his driving experience and that it was not possible that the speed could have been 15 to 16 miles per hour. He was insistent that the vehicle travelling southbound had stopped on the roadway prior to the accident. He denied the suggestion, which was put to him, that it had only become stationary after the accident. He said that he was certain that the fodder vehicle had not parked upon the pavement because there was wooden material on the pavement. It is to be noted that his assertion as to wooden material being on the pavement is borne out by the photos taken by the police officer, Exhibit 7, which the witness could not have seen, which clearly show that there were very large sawn logs on the pavement adjacent to the entrance to the lane.

10. He was cross-examined further about the vision of a driver proceeding along as the 1st defendant had been and he said that such a driver would be able to see the children on the side of the road outside the school but would not have been able to see children who are immediately in front of the stationary truck. Later in cross-examination be elaborated upon this statement saying that the children beyond the parked lorry were being looked after by adults. It is to be noted that this evidence is in accord with the evidence which was given later by the 3rd defendant who said that there were children being looked after by their parents on the pavement in front of the school. He also said that he saw children of the kindergarten on the same side of the road as that on which he was standing.

11. Tai Kam Tong, the 1st defendant gave evidence saying that on the 4th January 1978 at about 2.45 he was driving his vehicle AG6696 towards the quarry along Fuk Hang Chuen Road at a speed of 16 to 17 miles per hour. He said that as he rounded the bend in the road, there was a goods vehicle on the right-hand side of the road, parked at the side of the gutter, unloading. He said that he could see the driver standing in front of the vehicle and that when he drove past the front of the goods vehicle, he heard somebody shout out and looked in his rear vision mirror and realized that a young child had fallen on the roadway. He said that he then braked and stopped his vehicle and alighted and went back to the child. He said that he was aware that there was a kindergarten inside the building outside which the accident happened. He said that he did not see any 6 ton Isuzu truck on the opposite carriage at the time of the incident.

12. Under cross-examination he said that the goods vehicle was parked close to the gutter and that the driver was standing at the right hand corner of his vehicle on the verge of the pavement. He said that as he was approaching he could only see the driver's head through the glass of the vehicle but that later he was able to see his whole body. He said that he did not see anyone else in the vicinity.

13. It was clear from his evidence that he was saying that he did not, at any time until after the accident, see any other people in the vicinity except the driver of the fodder vehicle. He said that after the incident he saw two adults and about 10 children walking out from behind the stationary goods vehicle. He said that there were no people on the opposite side of the roadway. He said that he drove back and forth along that roadway three times a day and was aware that there were children crossing at that part of the roadway very often.

14. It was put to the witness by Mr. Fung that in his statement to the police he had said that when he drove past he saw a crowd of girls and that he had then heard a cry. He said that that was not a correct statement and that he had made it when his mind was in a state of confusion.

15. Mr. Tang Kuen Wing, the driver of the fodder vehicle, gave evidence that on the date of the accident he was driving a 10 ton Nissan Lorry in Fuk Hang Tsuen Road and that he parked it on the right hand (wrong) side of the road facing the quarry. He said that he parked his vehicle near a kindergarten. He indicated that the vehicle was parked further away from the kindergarten than was stated by the other witness. In this regard I have no hesitation in rejecting his evidence and finding, as was stated by the other witnesses, that his vehicle was parked adjacent to the laneway beside the kindergarten. He said that coolies were unloading the fodder and he was standing at the front of the truck at that time. He said that he saw about 10 students on the pavement 3 to 4 feet in front of his vehicle and that there was a female teacher with them. He said that the teacher want out acress the front of his truck and looked to see whether there was any traffic coming and at that time a child went across the road. He said he called out to the girl not to cross the road but that she had already done so and that subsequently she was hit by the rear part of the goods vehicle.

16. Under cross-examination he again said the teacher had gone onto the roadway. He said that, as his vehicle was straddling the gutter, she had only gone 3 to 4 feet onto the readway. He said that he was able to see the vehicle driven by the defendant approaching and that "if anything she (the teacher) would presumably have a clearer view since she was on the road". He said that at the time when the teacher was on the road she was standing apart from the children.

17. The 3rd defendant, Chan Wai Ling, gave evidence saying that in 1978 she was a teacher in the Fuk Hang Tsuen Kindergarten. She said that at that time there were 28 pupils in the kindergarten divided into two classes of about 14 each and that the only assistance she had was from a domestic helper. She said that there was a headmaster who was a village representative but that he saldom came to the school. She said that the school hours were from 9.00 a.m. to 12.00 noon and from 1.00 p.m. to 3.00 p.m. but that the parents came to collect their children from 2.30 to 3.00 p.m. She said there were 5 students who were not collected because their parents had to go to work and that she was instructed by the head of the village to help those students to cross the road. She said that normally when crossing the road she took the hands of two of the children and that the other children held hands so that there were 6 of them in a line. She said that, when she had made sure it was safe, she would go to the centre of the roadway and would then tell the children to begin going across one after the other. She said that she told the children to wait for instructions before she went to the centre of the roadway and that they would stand on the pavement waiting for those instructions. She said that she invariably adopted this practice. She said that during this time the domestic helper was in the kindergarten looking after the children whose parents had not arrived to pick them up. She said that on the date of the accident, she took the five students out from the school intending to take them across the road and that the other students, excopt for those whose parents had already collected them, were inside being looked after by the domestic helper. She said that some of the children whose parents had arrived were in the process of leaving with them. She said that when she reached the pavement she noticed a lorry parked on the pavement near to the entrance of the lane. She said she was unable to remember whether it was parked on or partly on the pavement but that it did block her view so she told the students to remain on the pavement and not to cross until she checked that it was safe. She said that the five students were in a line and that the plaintiff was the last in that line. She said that at the time of the collision she was standing on the pavement and had not stepped onto the roadway and was still holding the hand of a student.

18. Under cross-examination it was put to her that in a statement to the police she had said that she "stepped out from the pavement beyond the lorry's front" to see whether any vehicle was coming. At first she did not deny that she had made that statement but said that it was incorrect. Later she appeared to be denying ever having made such a statement. I must say in this regard I did not find her evidence at all convincing. I was satisfied that she did give a statement to the police in which she said she stopped out from the pavement and waited at the lorry's front. This also was the evidence of Mr. Tang. I reject her evidence that she did not leave the children and step onto the roadway and accept that she walked out onto the roadway in order to get a view to see whether anything was coming and that, at that time she left the children on the footpath. I do, however, accept her evidence that she told the children to remain on the footpath until she signalled to them it was safe to cross. Suggestions were made to her that she should have taken the children further up the roadway so that they were well clear of parked lorry before attempting to cross the road. It may well be that that would have been a safer method of performing the crossing, but what I must look at is to see whether or not the 3rd defendant acted negligently in attempting to make the crossing as she did.

19. I am satisfied that the most reliable evidence came from Mr. Wong and I accept that evidence. I accept also the evidence of Mr. Tang except as to the position at which his vehicle was parked. In this regard I do not consider that Mr. Tang was being untruthful but am satisfied that his recollection was faulty. I reject the evidence of the 1st defendant that he was travelling at 16 to 17 m.p.h. and that there was no person or vehicle visible ahead of him except for Mr. Tang and his fodder truck.

20. I am satisfied that the 1st defendant was travelling at about 25 m.p.h. and that, frcmthe time when he arrived at the point where Mr. Wong was standing, there were children and adults visible both on the footpath outside the kindergarten and on the opposite footpath. I accept that some would have been obscured by the fodder truck but I am satisfied that others were not.

21. I am satisfied that he failed to keep a proper lookout and that if he had done so he would have been aware that children and adults were about to cross the road.

22. While it may be that the speed of 25 m.p.h. was not excessive speed to be travelling along the said road I am satisfied that a reasonably cautions driver with knowledge that he was approaching a kindergarten would, upon becoming aware that children and adults were on the footpath, have kept a sharper lookout and approached the situation which faced him with extra caution and could reasonably have been expected to have either moderated his speed or sounded his horn or both. The 1st defendant was. I am satisfied, negligent because, by his failure to keep a proper lookout he placed himself in the position where he was precluded from doing any of these things. I am satisfied that this negligence contributed to the accident. Indeed it is difficult to understand now, when he was in the position to be able to see the whole body of Mr. Tang, as he says ne was, he failed to see the teacher who was hearer to him than Mr. Tang or the plaintiff who must, at that point of time, have been on the footpath or, more likely, running towards his vehicle.

23. As to the 3rd defendant I am satisfied that she did leave the children on the footpath but I am also satisfied that she told them to remained where they were and had gone only a few feet from them, to ascertain whether it was safe to cross, when, without warning, contrary to her instruction, the plaintiff ran across the road. I am satisfied that she acted as a reasonably careful mother would have and do not consider that she was in any way negligent.

24. The alleged negligence of the 4th defendant is not an issue before me but I must direct my mind to that allegation as I am required to apportion liability. I am unable to see that the 4th defendant was in any way negligent. I reject the submission that directing a teacher to conduct 5 small children across a road without either giving further exact instructions as to the method of crossing or providing further assistance in the form of amother adult was in some way negligent.

25. All the 3rd and 4th defendants were called upon to do was to exercise reasonable care and I am satisfied that both did exercise reasonable care in the circumstances.

26. I turn now to consider whether the plaintiff was guilty of contributory negligence. Her actions would undoubtedly have constituted negligence had she been an adult; however, she was, at the time, a child of 4½ who had only commenced kindergarten a few months before the accident. I bear in mind that she had on that day, and on previous occasions, been told not to step onto the road until instructed to do so by the teacher.

27. I was, in this regard, referred to the statement or Lord Denning in Gough v. Thorne⁽¹⁾ at p.1390 where he says:-

"A very young child cannot be guilty of contributory negligence. An older child may be. But it depends on the circumstances. A judge should only find a child guilty of contributory negligence if he or she is of such an age as to be expected to take precautions for his or her own safety: and then he or she is only to be found quilty if blame should be attached to him or her. A child has not the road sense or the experience of his or her elders. He or she is not to be found guilty unless he or sue is blameworthy."

In that case the learned judge was dealing with a child of 13! and, it must be said, the circumstances were very different from those obtaining in the present case. However, three years later, in 1969. Cummings - Bruce J. in Jones v. Lawrence⁽²⁾ when dealing with similar circumstances to those in the present case, in which a child of 7 years and 3 months was injured, made, at 270, the following observations.-

"Now I come to contributory negligence. Of course, the infant plaintiff, then aged seven years and three months, should not have run out across the road in the path of a motor bicycle driven down the road at about 50 m.p.h. The problen is whether in the case of a boy of seven years and three months the defendant has proved that the boy showed a culpable want of care for his own safety. Of course, it is true that he had been taught road discipling and now aged 11 he described in the witness box with perfect skill what he had been taught and did it very nicely. I do not doubt that he had received that teaching before the date of the accident and that if he had given the ratter a thought he would have realised it was his duty, as a matter of taking reasonable care for his own safety, to advance with the utmost caution and look round the corner of the van in order to see whether anything was coming before he walked or ran across the road. The propensity, however, of infants of seven years and three months to forget altogether what they have been taught was sensibly described by his schoolmistress. She made an observacion that if a child of that age wants to get anywhere, he will forget all he has been taught. She said such children do not remember if something else is uppermost in their minds. She was only describing what I regard as the normal experience of children of the age of seven years and three months.

Here was a child on his way to the fun fair. It occasions he no surprise that he decided to cross the road a very short distance beyond a parked van and I do not chink he was culpable about that. Again it occasions me no surprise that having placed himself in a position in which he stood at the herb his view of the road was blinded so that even if he had looked be probably would not on the kerb have seen the motor bicycle approaching, that thereafter he forgot to look again when he got to the offside corner of the parked van and ran across the road without looking. It is, of course, possible that he did look or tried to look either before he left the kerb or as he was standing behind the van, and that his view being impaired by the van, and the motor bicycle still being quite a long way away coming up, as it was, at a fast speed, that he simply did not notice it. That is a possibility.

In my view the defendant has failed as a matter of probability to show that the infant plaintiff was culpable or that his behaviour was anything other than that of a normal child who is, regretfully, momentarily forgetful of the perils of crossing a road. After all, what he had failed to notice was not the oncoming movement of a lorry, a bus on a car but a motor bicycle which, of itself, is probably less likely to force itself, is it approaches on the attention of a small child. Thus I negative contributory negligence."

28. Guided by the above authorities and bearing in mind all of the circumstances, particularly the very tender years of the plaintiff, I, likewise, negative contributory negligence.

29. I now turn to the question of quantum. Madam Ng Yuk Ying, the mother of the plaintiff said that, after the accident, she went with her daughter to the Pok Oi hospital and then to the Princess Margaret Hospital. She said that her daughter remained in hospital until the 3rd February 1978. She gave evidence as to special damages, which I accept, and I am satisfied that the amount of the special damages was established by that evidence. She said that before the accident her daughter had been a tidy, clean child, but that this was not so after the accident. She said further that since the accident she has, on occasions, failed to behave with due modesty. She said that when the plaintiff first went to the kindergarten she was able to write very fast and that none of her 6 children had even had to repeat classes at school. She said that the plaintiff now fails in every subject at school and that she now has no memory. She said further that she was put on excessive weight and is suffering from anaemia and is in need of tonic food. She gave evidence as to the occupations of her other five children. From this evidence I was satisfied what the plaintiff would have aimed at in life was work as a skilled or semi-skilled factory worker. She gave evidence that the plaintiff's condition has improved quite a lot but that even now she is suffering from the after effects of the accident. She said that she does not close the door of the bathroom and does not put on clothing at times and that she sufferd from bed wetting which she attributes to the accident. She said further that there is no improvement in her school work and that the child appears to be afraid of attending school.

30. The plaintiff herself gave evidence but she was unable to remember anything of the accident and appeared to have a very poor memory as to matters generally. She said that she had headaches often, that she had difficulty understanding her teacher. Certainly the impression given by the plaintiff in the witness box was that she has a poor memory and is somewhat dull witted.

31. In the agreed bundle of documents there was a report from a Dr. K.K. Ho of the Surgical Unit "B" of Princess Margaret Hospital. This report was dated the 2nd March 1978 and in it the doctor said that when he examined the plaintiff on the 4th January 1978 he found her in a semi conscious and restless state. He said that he found that her pupils were reacting but that the left was larger than the right, that there was bleeding from the left ear and nose, that she had black eyes; that there was a large haematoma at the left temporal and frontal region; that there was haematoma of the lips, that there was bruising and abrasion of the right ankle. He said that an X-ray of the skull did not show any definite fracture, but she was suffering from concussion and fracture of the base of the skull. He said that she was treated conservatively and that her condition improved slowly until she regained full consciousness on the 24th January. He said that it was noticed that the child was silent and did not talk during her stay in hospital and that there was some ptosis of the left eye. He said she was discharged on the 3rd February and that there was a high probability that she had suffered residual brain damage.

32. She was seen by Dr. John Hunter on the 3rd September 1979, again on the 12th September 1979. Dr. Hunter has since died but his report was tendered as part of the agreed bundle. The comment of Dr. Hunter was "This child sustained a severe head injury amounting to cerebral concussion, cerebral contusion, brain stem contusion, (some degree of intracerebral haemorrnage, not excluded), a fracture of the base of the skull compound into the left car; possibly a fracture of the frontal bone in relation to the left orbit, facial bruising including the eyelids; a haematoma of the left fromto-temporal region. In addition, there was bruising and abrasions of the right ankle.

The residua of the accident are -

(1) Asymmetrical appearance of the face in relation to the orbits and the palpebral fissures, the abnormalities being on the left side.

(2) Alteration in behaviour, particularly in respect to acquired social norms (dressing, clothes, tidiness, cleanliness, food habits) as well as speech content e.g. inappropriate answers and attention to correction.

(3) Reportedly, impairment of memory function as evidenced chiefly by performance at school.

(4) Skin discolorations in the ankle regions which may fade further with time but are likely to be permanent, these constitute only a miner cosmetic deformity.

(5) Recurrent occasional pain referred to the right ankle region."

33. The doctor said that the extent of the cerebral injury required further evaluation. On the 22nd October 1979 the plaintiff was seen by Mrs. Janie Lee, an Educational Psychologist. Mrs. Lee found that the plaintiff's "behaviour and test performance show significant correlation to brain damage."

34. In March 1982, Dr. Edmund Cheung gave a report in which he said "The examination carried out showed that the girl Law Yuen-wan is of average intelligence, and behaved normally. There has been no incidence of epilepsy. Examination of the nervous system showed no abnormality except some changes in her eye ground. On the basis of this examination, I cannot say that she is suffering from any disability. I have to admit that my assessment is limited. Psychological tests, or school reports are more sensitive indicators of her actual mental function. Delaying her assessment from 1979 to 1982 seems to reduce the assessable disability but, learning disability and personality defects may become apparent at a later date when she is promoted to higher grades in school, and confronted with psychological changes of adolescence. I am given to understand that the head injury was a serious one, and that the girl's recovery was much prolonged, some residual disability is expected. Before I made a final comment, I would like to request and re-table Dr. Hunter's previous proposal of repeat of EEG and C.T. Scan, so that a more accurate assessment can be made.

35. On the 27th April 1982, Mr. Cheung reported further as follows after the carrying out of an EEG and C.T. Scan. "In brief, the C.T. Scan and the EEG are both abnormal. These show changes compatible with effect of brain injury. As the C.T. Scan showed that the Main area of damage lies in the frontal area, this girl is expected to she some personality defects. These may become more evident as she grows up. In conclusion, Law Yuen Wan has the following permanent residual disabilities as a result of the injury sustained on the 4th January 1978:

(1) Some personality defect which may become more noticable as the child grows up.

(2) Some impairment of mental ability.

(3) Tendency to have epileptic attack in the future.

36. These will result in reduced earning ability, and reduced capacity to enjoy a normal life."

37. In November 1982, Dr. Shroff examined the plaintiff on behalf of the defendants. The summary in his report dated 30th November was:-

"This girl has made a remarkable recovery from a head injury. Physically she is normal and neurological examination had not revealed any abnormality. She claims intellectual impairment. However it is generally known that children recover very well from head injuries due to the plasticity of the brain. It is strongly recommended that she undergo another psychological test by Janie O.C. Lee. The last one was done in July 1980. Law Yuen Wan has a 6% chance of developing post-traumatic epilepsy. Her headaches are migrainous in nature and can be prevented by medication."

38. Mrs. Janie Lee had, in fact, seen the plaintiff on 9th July 1980 when she found that:-

"Compared to her perfommance last October, Yuen Wan has made improvements in psycho-perceptual ability and in memory ability. However, her scores on the WISC has improved only slightly in the verbal scale whereas on the non-verbal scale, her scores have actually gone down. She atcained a Full scale I.Q. of 84 which put her just below the Low Average Range of imtelloctual ability which she showed last October. In the verbal scale, she showed improvements in her store of general knowledge and in her acquisition of the number concept and her ability to count and do simple computation. In the non-verbal scale tasks such as picture arrangement, building block patterns and putting together simple jig-saw puzzles, she failed on items which she passed last October. As she has shown improvements in psycho-perceptual skills in other tests, her present deterioration in scores on the non-verbal performance tests is post probably due to her present slapdash manner of doing work and to her reluctance to make an effort in difficult tasks. With better work attitude I think her performance could have score higher.

On the 14th March 1983, Mrs. Lee again examined the plaintiff. The conclusion she arrived at after this examination was "The present re-assessment has revealed deficits in intellectual functioning, in memory functioning, in emotionality and control. These deficits would seriously affect her schooling and her personality development. Improvements have been Made in spatial perceptual functioning."

On the 7th March 1983, Dr. Cheung made a further report in which he commented upon the report of Dr. Shroff made on the 30th November 1982. He took issue with Dr. Shroff's statement that "The pre-frontal area of the brain is commonly considered to be a silent area -- having less specific and measurable functions". He said, referring to the pre-frontal area, that "Damage to the (sic) part of the brain will certainly change a person's personality and social behavior". He stated "Such damage to personality, and social behavior may not be evident at her age but may become more significant when she grows up into adulthood and has to face the world and make a living." He said finally "I agree with Dr. Shroff that the chance of her having epilepsy is about 8%. This will certainly limit her selection of future prefession or employment and in her activities of daily living such as driving a motor car."

39. The final report was that of Dr. Shroff made on the 27th April 1983. Dr. Shroff returned to his suggestion that the pre-frontal areas of the brain have less specific and measurable functions than other areas. It is not, in my view, necessary for me to attempt to resolve the disagreement between the 2 doctors as to the functions of the pre-frontal areas of the brain. Suffice to say that I am satisfied that the plaintiff suffered demage to that area of the brain and that damage produced the continuing defects observed by Mrs. Lee.

40. Dr. Shroff was not called to give evidence but evidence was given by both Dr. Cheung and Mrs. Lee. Dr. Cheung did not really add anything to what he had said in his reports. He concluded his evidence by saying "She would have reduced earning ability and reduced capacity to lead a normal life". He was not cross-examined upon either his reports or his oral evidence.

41. Mrs. Lee said in answer to a question in cross-examination as to whether or not the plaintiff's condition had reached a final stage: "It is hard to say that this is a final stage in neuropsychology, but usually after three to four to five years, we would say that improvement would be very minor even if there was any more forthcoming."

42. At the suggestion of the bench Mrs. Lee was, by leave, recalled to give further evidence. She was asked whether the plaintiff would be fitted for skilled or semi-skilled factory work and whether the injury would have any offect on her capacity to do such work. To this she replied: "Intellectually I think she would have no difficulty being trained for factory work, however, I think, in her emotionality and benavioral control aspects we would still encounter difficulties in her training process or in her subsequent carcer towards being a responsible and stable worker".

43. The witness was cross-examined as to this statement and it was apparent, after cross-examination, that what she was saying was that because of the plaintiff's immaturity and instability, she would be difficult to train but that she did have the intellectual capacity to master such training. She went on to say that, after she had been trained, because of her immaturity and instability, the likelihood is that she would not be a satisfactory worker as she would be likely to change jobs for minor reasons. She was asked about the possibility of the plaintiff doing office work and said that she would be able to do the work of a receptionist but doubted that she would be fitted to do secretarial work. As I have indicated I do not consider there was any real likelihood, even without the accident, that the plaintiff would have undertaken secretarial training.

44. I am satisfied that as a result of the injury sustained in the accident, the plaintiff was suffered:-

(1) An asymmetrical appearance of the face. This is not particularly marked, but it is noticable and does detract in a miner way from the appearance of the plaintiff.

(2) An alteration in her behavior as evidenced by her immaturity and her lack of modesty.

(3) An impairment of the functioning of the mind. This is evidenced by her failure to keep up with and master her school work and the unsatisfactory performance of the tests administered by Mrs. Lee.

(4) Persisting headaches. It is true that this can be alleviated by medication, but nonetheless they do occur and must be a source of worry to the sufferer.

(5) A tendency to epileptic attacks. It appears that she has a 6% to 8% chance of developing a post traumatic epilepsy.

45. I accept Mrs. Lee's evidence that if there is any further improvement in the plaintiff's condition it will be very minor.

46. As to her earning capacity, I am satisfied that she is intellectually capable of being trained for factory work which is the sort of work which in my view she would have undertaken even if there had been no accident. However, I am satisfied from the evidence of Mrs. Lee that because of her immaturity and instability, she would find the training difficult and that once trained she would not be a wholly satisfactory worker because of the likelihood that she would not be able to persist in a particular job. It seems to me that the end result would be that she would be likely to have periods of unemployment which she would not have had but for the accident. In this regard I bear in mind that the tendency not to persist in a job might well be stifled to some extent by the stern reality of the need to earn a living. I bear in mind also that she may well marry and not thereafter work. Having made these observations I make it plain that I have not lost sight of the real disadvantage that I am satisfied she has suffered in this regard.

47. There is little evidence as to pain and suffering and it seems to me that she did not undergo any very marked pain and suffering for any prolonged period.

48. I intend to divide the damages into two categories. The first will be pain, suffering and permanent disabilities which I have set out above and the second will be loss of earning capacity. As regards pain, suffering and permanent disabilities, I award the sum of $120,000. When arriving at the figure for loss of earning capacity, I take into account the vicissitudes of life and particularly the possibility that the plaintiff may marry and give up work altogether and that she may, even if she does continue working, have her irresolution to some extent stiffened by the stern reality of the need to earn a living. I also take into account the accelerated receipt of the money awarded. In this regard, I award a figure of $60,000. Award for general damages will therefore be $180,000. I also award the sum claimed for special damages of $8,104. There will be interest at the rate of 2% on the general damages from the date of the writ and there will be interest at the rate of 7% on the special damages from the date of the accident. There will be judgment in the above sums against the 1st and 2nd defendants. The action against the 3rd defendant will be dismissed.

Representation:

Mr. Daniel Fung (Hastings & Co.) for plaintiff.

Mr. Lester Kwok (Deacons) for 1st and 2nd defendants.

Mr. Wally Yeung (Chan & Chuk) for 3rd defendant and 1st Third Party.