Au Wang Cheong v. Yan Wing Wai
Read the full judgment text of HCPI 710/1999 on BabelCite. This High Court CFI judgment was delivered on 10 January 2001.
1. The plaintiff, who was born on 11 January 1985, met with a traffic accident on 6 July 1996 when he was 11 years old. He was knocked down by a car on a pedestrian crossing. There is judgment in his favour on liability. The matter comes before me for assessment of damages.
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HCPI000710/1999 HCPI 710/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO.710 OF 1999 ----------------------
----------------------- Coram: Deputy High Court Judge Muttrie in Court Dates of Hearing: 18 - 21 December 2000 Date of Judgment: 10 January 2001 ------------------------- J U D G M E N T ------------------------- 1. The plaintiff, who was born on 11 January 1985, met with a traffic accident on 6 July 1996 when he was 11 years old. He was knocked down by a car on a pedestrian crossing. There is judgment in his favour on liability. The matter comes before me for assessment of damages. 2. The plaintiff suffered, among other things, a head injury. In brief, his case is that the head injury resulted in neuropsychological and neurobehavioural difficulties. In particular, he complains of continuing monocular diplopia in both eyes; in other words, he sees double with each eye even when the other eye is covered. This affects his concentration and his school work. His family complain of behavioural difficulties. In effect, it is said that he has gone from being an honour student to a very mediocre one and from a normal child to a badly adjusted adolescent. It is claimed that all this was caused by the head injury and resulting brain damage. This the defendant does not accept. 3. The plaintiff claims and damages for :
4. There is no dispute that the plaintiff was injured, and is entitled to damages for pain, suffering and loss of amenities and special damages. The amount of damages under the first head of claim will depend on whether or not he is found to have the continuing disabilities claimed, how serious they are, and whether they were caused by the accident. His entitlement to damages under the remaining heads of claim will also depend on that. So the issue before me is mainly one of causation. 5. There is no dispute as to the injuries which the plaintiff suffered in the accident. After the accident he was admitted to hospital. He was then fully conscious. He was found to have suffered some superficial facial lacerations and two areas of laceration to the left thigh which required suture. He suffered a soft tissue injury to the left hip. CT scan of the brain showed a left temporal bone skull fracture and a suspected skull base fracture but MRI three days later was normal. He had bilateral sixth cranial nerve palsy causing diplopia (double vision). He remained in hospital for nine days. 6. According to the report of an orthopaedic specialist, Dr K.T. Chan, dated 26 April 1999, the left thigh injury healed well with minimal scarring. There was some pain on extreme range of hip movement but this should improve and there should not be any permanent impairment. The thigh injury will not cause any permanent loss of earning capacity. 7. The plaintiff was seen on 8 November 1999 by an ophthalmologist, Dr Paul M.K. Cheung who reported that the partial sixth cranial nerve palsy causing diplopia had recovered. However, the plaintiff was complaining of monocular diplopia in each eye. This was subjective and there was no clinical method of proving the presence of the diplopia or quantifying it. The plaintiff was mildly short-sighted, but this was corrected with spectacles. There was no permanent disability from the ophthalmological point of view. 8. The plaintiff's case is based on observed deterioration in his academic performance, and behavioural difficulties particularly within the family. His case is that these were caused by the accident. His school results for primary and secondary school are before me and are not in dispute. 9. The accident happened in the school holidays after the plaintiff had completed the Primary 5 class at the Carmel Alison Lam Primary School. He went on to Primary 6. After that he went to the Helen Liang Memorial Secondary School where he is now a student. Up to Primary 5, the plaintiff was a very successful student. In his term exams in Primary 5, in 11 subjects, he achieved seven grade A, three grade B and one grade C results. In the graduation exams at the end of Primary 6, he did not do so well. He sat nine subjects and achieved two grade A, four grade B and two grade C results. However, in secondary school, his academic performance deteriorated. In the year exams for Form 1, he achieved an overall mark of 55%; for Form 2, 60%; and for Form 3, 52%. He had been particularly good at English and Mathematics in primary school; but in secondary school, his results in these subjects were not as good and indeed he failed some of the Mathematics papers. 10. His conduct was regarded as good throughout primary and secondary school, though it seems there was a minor problem in Form 1. His reports in Form 1 and Form 2 described him as absent-minded in class and said that he should pay more attention but that seems to have improved in Form 3. 11. I turn now to the plaintiff's evidence. He says that after the accident, he fainted for about half an hour to an hour. He could remember everything that happened up to the accident, and he could also remember everything that happened after he regained consciousness. 12. He said that after the accident, he suffered and still suffers from double vision in both eyes. He did not require spectacles before the accident but now wears them. The double vision persists, even with the spectacles, and it exists in each eye independently. From cross-examination, it appears that the problem with the double vision was worst in the months after the accident but as time goes on, it has diminished in severity. He said that the spectacles helped to correct it. It has improved but it still exists and it still bothers him. 13. He says that as a result of this double vision, he finds it difficult to concentrate. Therefore, his school work has deteriorated. 14. He does not have a good relationship with his sister. He argues with her often. He also quarrels with his mother often about studying. He has been attending a psychologist since March 2000 but he does not think that the treatment is very helpful to him. 15. He was asked about his school performance which was not bad in the year following the accident. He said that the English and Mathematics were easier then but became harder in the secondary school. He did not accept that his difficulties in secondary school came about because the teaching medium is English as against Chinese in the primary school. 16. He admitted to playing computer games for three to four hours at a time on Saturdays, and that he had once spent eight hours playing. He said that he goes out with his friends for sport, and has no serious conflicts with them and that his behaviour with them is no different from that of any other boy. 17. He agreed that his mother tends to nag him about his school results. This started in Form 1. His sister also nags him about school performance and argues with him about things like who gets to use the computer and who gets to use the telephone. He said that the arguments with the sister had started about the time he was in Form 1. 18. As to the psychiatric treatment, he said that he did not think there was any problem with him. He did not have any choice about undergoing the treatment. It was fair to say that he was forced into it but he felt it was "a bit of a nonsense". As to the specialists who had seen him for the purposes of this action, he said that he just went to see them but felt that it was a waste of time. He was not very enthusiastic about giving answers and did not bother much. He did not feel any difficulty when his mother was in the room while he was talking to a doctor. 19. He had told Dr Choa, the plaintiff's neurologist, that his school results were bad because he had been lazy. That was true. However, he did not accept that he spent too much time playing computer games. 20. The plaintiff's mother's evidence is that after the accident at the plaintiff has become increasingly irritable. He showed poor memory, depression, lack of responsiveness and displeasure towards his father. He refuses to heed advice on his welfare; he avoids extracurricular activities after returning from school; he finds fault with the food his mother cooks for him; he has a poor appetite and is irritable towards his mother and sister. 21. The mother says that the plaintiff twice punched his elder sister and bruised her arms, though she did not see this herself. In a temper tantrum in 1998, he injured his wrist with a metal ruler. Also a couple of times, he banged his head against the wall. In December 1999, he would not heed his mother's advice to wear warm clothing and verbally abused her. He did not concentrate on his school work and often listened to the radio while ostensibly working. 22. She said that before the accident, the plaintiff was a very well-behaved child and listened to the advice his parents gave him. The teachers liked him very much. After the accident, he still got along well with his teachers and schoolmates. He started misbehaving after he had been in Primary 6. She said that if she let him have his way, he would behave well but if not, he would behave badly. He cannot sit still very long to study. When he went to secondary school, he was not as compliant as before. If he is told to do his homework, he agrees but just takes it out and looks at it. He does not really work at it. 23. He often quarrels with his elder sister over trivia. He refuses to help in the house, with things like setting the table. 24. I have set out this evidence in some detail, because although the expert witnesses have dealt with the plaintiff's behaviour in giving their views of what has caused it, they necessarily rely on what they are told by the plaintiff himself and particularly by his mother. 25. I found both the plaintiff and his mother to be honest witnesses. I have no doubt that they are telling the truth as they see it. I accept that the plaintiff does experience some double vision even now; there is nothing to suggest that he might be making this up; though how much it really troubles him, if he can play computer games for long periods, is another matter. He told Dr Choa that it did not trouble him much and he may well now be exaggerating somewhat especially given the conflict within the family. I have no doubt that there is such conflict especially between the plaintiff and his mother and sister. However, it is also clear that these problems began when the plaintiff went to secondary school and they only exist within the family. If the plaintiff behaves badly in the family, there is no suggestion even from the mother that he does so outside. He gets along well enough with his schoolmates and he behaves well enough as far as the teachers are concerned. Also there is obviously an element of nagging within the family, and pressure put on the plaintiff by his mother and sister. How much of the plaintiff's misbehaviour is in reaction to this, rather than self-generated, is not clear. 26. The plaintiff called two experts, Dr Brian Choa, a well-known Hong Kong neurologist and Dr Timothy T. Law, a neuropsychologist with a long and impressive history in America who has been practising in Hong Kong for over three years. The defendant called the neurologist Dr Edmund K.W. Woo and the consultant clinical psychologist Professor Peter W.H. Lee, both of them experts of the highest professional qualification and expertise. There is also before me a report by Dr Tommy H.M. Chan, another clinical psychologist who is actually treating the plaintiff, though counsel for the plaintiff says that he does not rely on this. 27. The medical reports are extensive. So was the oral evidence of the experts, particularly that of Dr Law. I will not try to rehearse the evidence extensively but will attempt to set out briefly the import of each expert's opinion as I understand it. 28. The experts did various tests on the plaintiff. Perhaps the most significant one, and certainly the one that is most supportive of the plaintiff's case, is the Wechsler Intelligence Scale for Children, Hong Kong Cantonese Version carried out by Professor Lee. This produced a Verbal Scale IQ of 129; a Performance Scale IQ of 113 and a Full Scale IQ of 124. This last puts him in the 95th percentile. It is necessary to note this at the outset because the various experts have commented on it. 29. Dr Choa's opinion as set out in his latest report is that the plaintiff has persistent monocular diplopia resulting from the accident. He says that the most likely cause is occipital polyopia, a condition arising out of damage to the occipital lobes or their connections. However, in evidence, Dr Choa agreed that there was no clinical evidence of occipital injury. He said that occipital polyopia would be expected to produce a kind of fractured vision, as if through a broken glass, rather than the image doubling which the plaintiff himself complained of. He also said that it would be very rare for someone to have such independent double vision in each eye; indeed, he seemed rather surprised that the plaintiff was complaining of that. I note that in the earlier report, Dr Choa had recorded that the false image was reported in the left eye in all directions. There was no mention of the right eye. In any event, the diplopia was described as mild. 30. As to the so-called personality change which gives rise to complaints of outbursts of temper, Dr Choa also ascribes this to the accident. The same applies to the underperformance at school. Dr Choa refers to the gap between verbal and performance IQ found by Professor Lee as "a classical finding in acquired intellectual disorders". Dr Choa thinks that the plaintiff is a bright boy, but that impaired concentration, which is a feature of a post-concussive state, slightly affected vision and mild personality change have contributed to his under-performance. He also takes the view that the plaintiff is now unlikely to be able to go to university, as he should have been on his primary school performance. He puts the loss of earning capacity at 20%. 31. Dr Law had lengthy consultations with the plaintiff, always in the presence of his mother. He took a long history, which seems to have come mainly from the mother and which, I have to say, does not agree well with the mother's evidence. In particular, he seems to have gleaned from the mother that the plaintiff suffered drastic changes of temperament in the early period after the accident and that his school work noticeably declined then. The mother, on the other hand, said that the problems began "after Primary 6" and the primary school report does not mention any problems; rather the reverse. 32. Dr Law's view is based mainly on these observations and on a series of tests which he carried out on the plaintiff. These did not include an IQ test like that done by Professor Lee; his view was that this was inappropriate for various reasons. His conclusions were that the plaintiff suffers from "cognitive impairments, visual-perceptual spatial-perceptual difficulties of varying degrees, which are deemed associated with head trauma". He also considers that the plaintiff's complaints are "consistent with the diagnosis of post-concussion syndromes". This is all associated with temporal lobe damage following the temporal bone fracture. At the same time, frontal lobe syndrome is also the most logical direct result of the CT scan findings (of fracture). He also says that his findings suggest "a condition of recurrent syndromes of anxiety and depression" and a "mild condition of post-traumatic stress disorder". His view is that lengthy and costly treatment is required. 33. Dr Law commented in strongly negative terms, in one of his reports, on Professor Lee's findings. In particular, he seemed to be calling into question, both there and in his oral evidence, the validity of the IQ test performed by Professor Lee, though it turned out in cross-examination that he was himself quite unfamiliar with this test. According to Professor Lee, it is a test which has been standardised in Hong Kong, for use with Cantonese speakers, and in use since 1980. Dr Law also attacked Dr Woo's conclusions. 34. Dr Law was cross-examined at some length about the specific tests used by him, and his conclusions drawn from them. Professor Lee, as will be seen, does not agree with the conclusions and Mr Wright for the defendant attacks them strongly in argument. I have to say that it is difficult to understand how, for instance, a test score of 37 out of a possible 38 can be suggestive of cerebral or any dysfunction. Dr Law said that various computations had to be applied to the figures to allow for standard deviations and the like but he did not have the computations figures available and could not explain the matter in simple terms. Nor indeed was I able to get a very clear picture of the nature of the treatment which he was recommending. 35. Both Dr Choa and Dr Law took the view that the reason why the plaintiff did not immediately show any great change in academic achievement was that he would be able to carry on in primary school on the basis of rote learning. When in secondary school, he had to carry out more demanding intellectual tasks, the cognitive dysfunction came to the surface. 36. Dr Woo's opinion was that there was no objective evidence of any cognitive dysfunction on clinical examination. He took the view that the plaintiff's academic results over the past two years in secondary school had been inconsistent, and that this strongly suggested that motivation and diligence were the most likely factors for the poor results. He did not think there was any neurological cause for diplopia. Overall, he found no objective evidence of residual organic neurological deficit as a result of the head injury. 37. In oral evidence, Dr Woo said that there should be no neurological cause for the double monocular diplopia. He would expect local eye pathology to produce this. His feeling was that the plaintiff might have a residual binocular diplopia because some patients complain of this even after sixth cranial nerve palsy has cleared up. He had never heard of "occipital polyopia" as referred to by Dr Choa but his view was that if there had been an occipital lobe lesion, it would produce visual field defects such as seeing half the image. It was possible that an occipital lesion might produce an image like seeing through cracked glass. But he could not explain the plaintiff's complaint of monocular diplopia in both eyes. 38. As to Dr Law's suggestion of diffuse frontal lobe damage, Dr Woo said he could find no evidence of it. He thought that if there had been such damage, there would have been a greater drop in IQ than the difference between the verbal and performance figures given by Professor Lee. 39. As to the time of onset of the symptoms, Dr Woo said that if there had been a neurological deficit, one would expect if there was a significant degree of intellectual impairment, it would have shown up earlier and then mellowed. 40. Dr Woo said that he had carried out a Mini Mental State Examination on the plaintiff; this was the same test done by Dr Choa who had found a result of 28 out of 30. He did not see how Dr Choa could draw the conclusions he did from this result. As to Dr Law's tests, though he was not familiar with some of them, he knew the Symbol Digit Modalities Test in which the plaintiff had scored 37 points out of 38 as valid. He found it surprising that a score of 37 out of 38, in 90 minutes, in one particular test could be regarded as indicating dysfunctionality. 41. He accepted that in indicated cases where a neurologist could not find the cause of a problem, the patient could be referred to a clinical psychologist or neuropsychologist. However, he said that neither he nor Dr Choa had been able to find any neurological abnormality to explain a degree of abnormality as extensive as that described by Dr Law. 42. As to the diagnosis of post-concussion syndrome, Dr Woo said that he did not think the plaintiff's problems fell under that diagnosis. In particular, he would have expected, in such a condition, to find symptoms like headache, dizziness which would be the most prominent symptoms. The syndrome would include irritability and poor concentration; he accepted that the plaintiff had these; but his view was that the overall picture, lacking headache and dizziness, was not that of a post-concussion syndrome. 43. Professor Lee interviewed the plaintiff, both with and without his mother, and found a marked contrast in the plaintiff's responses when he was alone. In short, he performed better, but he tended to give very quick answers and to be somewhat careless. He did not deliberate too intensely on difficult items and tended to give up rather easily. 44. Professor Lee's overall opinion was that the plaintiff's cognitive functioning was within the superior intelligence range and that he ranked at the top 95th percentile of the performance of children of the same age group. His lower performance in some sub-tests might be accounted for by carelessness or inconsistent motivation or alternatively to the double vision. The plaintiff had a slightly steeper forgetting curve over time which again might be due to poor motivation and less serious learning efforts but may also have been compounded by subtle after effects of the head injury. 45. As to the decline in academic performance, Professor Lee took the view that this was more suggestive of changing motivation rather than any permanent impairment in learning ability. Part of the problem lay in the change from a Chinese-medium to an English-medium school. He also said that generally one would expect the effects of trauma to appear immediately and then mellow to some extent later, even without active treatment. 46. As to the change in personality, he thought that the cause of this was uncertain. It could simply be part of the problems of adolescence. In any event, the behavioural complaints were all at the sub-threshold level. 47. Professor Lee took the view that if the plaintiff's difficulties were due to the residual effects of his injuries, he had no more than 5% impairment of his personal functions as a result of cognitive and psychological difficulties. There was no need for active or prolonged psychological treatment but a short course of family therapy would be of benefit to the plaintiff and his family. He considered that the plaintiff should be able to go on to university if he wanted to. 48. Professor Lee's oral evidence was along the lines of his written opinion as I have set it out. With reference to the IQ test, he said that this was established in Hong Kong in 1980; thousands of children had been field tested to obtain normative standards for their age equivalent. It was routinely used in Hong Kong up to now. 49. Professor Lee said he could find no signs of frontal lobe syndrome which would in any event not be involved in the kind of injury which the plaintiff had suffered. 50. As to the change of personality, Professor Lee's view was very much that this was largely a family problem. He accepted that the accident could have triggered this; generally, it might have made the family, and in particular the mother and sister, exert more pressure on the plaintiff. It was noted particularly that the plaintiff did not, even on the mother's reports, seem to have any problems with his peers or his teachers. In fact, when cross-examined on this, he said that for pathological personality change, one would expect to see consistency which is not seen here. 51. I think the overall import of Professor Lee's opinion on the plaintiff's academic deterioration and his so-called change of personality is encapsulated in the following passage from my note of his evidence-in-chief :
(The DSM 4 and the ICD 10 are standard diagnostic manuals; the first is American and Dr Law has referred to it. The second is from the World Health Organisation.) 52. Professor Lee was also cross-examined at length. He was taken through a textbook chapter on head trauma which showed, as possible consequences, many of the features of the plaintiff's condition as reported by Dr Law. Not surprisingly, and in my view quite validly, he said that clinical diagnosis is not different from reading a textbook. He said that one must find specific evidence before one can make a judgment that the patient suffers from the possible consequences listed in the textbook and that is what he did. 53. It was put to him that the plaintiff suffered from post-concussion syndrome. Like Dr Woo, he took the view that in such a syndrome one would expect the primary symptoms to be headache and dizziness. As to poor concentration, he thought that the 25 minutes reported by Dr Law was not a short span. In any event, the plaintiff could play computer games for hours; if he had a short attention span, he could not do that. 54. I do not think I need refer to any other specific point. The thrust of Professor Lee's evidence both in examination-in-chief and cross-examination was that he accepted that the plaintiff might have been suffering from some residual defects, but he could not find anything to indicate them. 55. It seems to me, with all due respect to Dr Law, that he had a tendency to exaggerate. His reporting of what the plaintiff's mother told him was much more lurid than anything that came out of her evidence or the evidence of the plaintiff himself. While, of course, I as a layman cannot say whether or not the conclusions he drew from the various tests carried out on the plaintiff are correct, it has to be said that the overall tenor of them, and not just the one I have specifically mentioned, was that there was while the test scores were high, so that one would have expected the conclusion to be that there was no or at least a very low probability of dysfunction, the conclusions drawn were otherwise. The reasons for this were not explained in any way that I could understand. Nor indeed could the defendant's experts and particularly Professor Lee explain why these conclusions could have been drawn. 56. I also note that Dr Law's view that the plaintiff suffers from depression is contradicted by Dr Choa. 57. Dr Law's views on the findings of Dr Woo and Professor Lee seemed to me to go into the realms of advocacy as much as expertise. However, his objections to the Wechsler test seem to have been based on lack of information. They were based on the difficulty of modifying a test developed for English speaking Americans so as to make it meaningful in the context of another culture, that of Cantonese-speaking Hong Kong people; yet it appears that this is exactly what had been done in the 1980s. 58. There is a suggestion that Dr Law is a practitioner of a new, modern discipline from America, which has not yet taken root in Hong Kong and that for this reason, he knows better than the local experts. He certainly appears to consider that his findings are more scientific than those of Dr Woo and Professor Lee. The latter does, however, say that he has worked in the neuropsychological field in the UK. 59. My overall impression was that Dr Law was very much concerned to find a causal connection between the plaintiff's problems, particularly as reported by his mother, and the head injury. Hence the suggestions of frontal lobe syndrome and temporal lobe damage together, the only explanation being, apparently that no one can predict what brain damage can be caused by a blow to the head or where in the brain that damage will be located. Further, there were many references to all the various possible consequences of head injury drawn from textbook sources. For instance, there was a reference to the possibility of strephosymbolia or mirror-reversal of objects arising from one test error. The overall impression was of a witness determined to find and argue for a causal connection by putting possibilities together and trying to make them into a probability. 60. Professor Lee seemed to be a more balanced witness. Certainly, his opinion appeared simpler and more readily understandable though that is perhaps not the point. The simpler and more readily understandable opinion is not necessarily the correct one. The less simple opinion must however still be capable of proper explanation that other experts in the same field will accept and above all, it should not be put forward as advocacy. That does not seem to apply here. Where there is a conflict, it seems to me that Professor Lee's opinion is to be preferred. 61. Professor Lee's view seems to agree more readily with common experience. Many children do suffer a decline in academic performance on changing to secondary school, usually at about the time they reach puberty. Some drop out altogether, among them those whom the courts so often see as young offenders. Such decline can produce conflict in the family when the parents try to make the failing student try harder. 62. The plaintiff has to establish on the balance of probabilities that the problems which he now complains of exist and that they were caused by the accident. In other words, he has to take himself, on the balance of probabilities, out of the category of adolescent which I have just described, and into which Professor Lee puts him. 63. The independent monocular diplopia complained of by the plaintiff, as described by him, does not appear to be explainable either by Dr Choa or Dr Woo. I did not, however, have the impression and neither did any of the experts that the plaintiff was making it up. I think I have to take it as more probable than not that he does suffer from it. Yet it cannot be very serious. That is what the plaintiff himself told Dr Choa in the beginning. It does not stop him from playing computer games for hours at a time, or from doing anything much except maybe throw a basketball at a basket. I doubt that it really affects his ability to read or concentrate to any great degree. 64. The plaintiff's change of personality is not, in my view, made out as such. The evidence is that he gets along with his teachers and peers but not with his family members. According to his mother, if she lets him have his way he behaves well, and if she does not, there is trouble. I accept Professor Lee's opinion that if this were a real personality change, it would be consistent and would appear in his dealings with persons outside the family as well as inside. 65. There is no doubt that there has been an overall drop in the plaintiff's academic performance. Again this seems to have happened in secondary school. There was some drop in Primary 6 but it was not great. Dr Choa and Dr Law explain this by saying that in Primary 6, the plaintiff would still be at the rote learning stage. Cognitive dysfunction would not make much difference there, but only later when he came to do the more difficult work in secondary school. Dr Law as I understand him also takes the view that the difficulties faced by the plaintiff in dealing with secondary school work would produce frustration which would in turn bring on the behavioural problems. 66. The plaintiff himself told Dr Choa at the first interview that his grades had gone down because he found his teachers boring. Later, he told Dr Choa that he had been lazy in revising for exams and, as I have indicated, in evidence he said that that was true. While Dr Law takes the view that any perceived laziness - which should not be characterised as such but rather as apathy or lack of motivation - must have a pathological cause, this is not the view of Professor Lee and it does not accord with common experience. Many students are lazy, or apathetic, or lack motivation, without having suffered any trauma or other pathological cause. The approach of the plaintiff's experts seems to be that the patient's own view is not worth much. For instance, if he says he is doing well enough, or that his problems are not great, he is in denial or lacking in insight. That is all very well but I have to have regard to the evidence as it comes before me. 67. Overall, it seems to me that, bearing in mind the late onset both of the behavioural problems and the drop in academic performance, and particularly Professor Lee's evidence about the intrafamilial conflicts, I cannot be satisfied that it is more probable than not that these behavioural problems and drop in academic performance were caused by the head trauma. 68. While Professor Lee says that the family problems could have been triggered by the accident, I do not see how that could found a claim for damages. It is in any event too remorse. 69. It follows that the plaintiff should only be entitled to recover damages for pain, suffering and loss of amenity and special damage. Mr Cheung, for the plaintiff, has put forward three head injury cases but all were in the substantial injury category. Mr Cheung argues that the damages under this head should, even on the finding I have made, be awarded on the basis that the plaintiff approaches the lower end of the serious injury category which is $400,000. He should have $350,000. Mr Wright, on the other hand, argues for a figure no higher than $200,000. No other awards were cited in support of this. 70. The plaintiff suffered the various other injuries and a head injury which was characterised as "mild to moderate". He does suffer some kind of continuing vision problem though as I have indicated it cannot bother him much. Nevertheless, there is some continuing disability. I will award $350,000 under this head of damages. 71. Special damages are agreed at $45,795, not including an agreed sum of $6,000 for spectacles. On the medical evidence, the diplopia is not ophthalmological in origin, so the claim in respect of spectacles cannot be met. 72. There will, therefore, be judgment in favour of the plaintiff for $395,795.00. Interest on $350,000 at 2% p.a. from the date of service of the writ to the date of judgment. Interest on $45,795 at half the judgment rate from the date of the accident to the date of judgment. Interest thereafter at the judgment rate until payment. Costs nisi to the plaintiff, to be taxed if not agreed. The plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations. 73. The plaintiff is a minor. He has applied under Order 80 for a direction that there be a monthly payment out to cover medical expenses and the mother's loss of earnings. These heads of damages have failed. The judgment sum is therefore to be paid into court, to be invested on the plaintiff's behalf until majority.
Representation: Mr Y.L. Cheung, instructed by Messrs C.M. Li, Chow, Pang & Chan, assigned by DLA, for the Plaintiff Mr John Wright, instructed by Messrs Hastings & Co., for the Defendant Remarks: |