Chan Ah Kau v. Ng Tin Tai
Read the full judgment text of HCPI 33/2000 on BabelCite. This High Court CFI judgment was delivered on 1 February 2001.
1. The plaintiff claims damages from the defendant for personal injuries sustained by him while a back seat passenger in a car GW9173 driven and owned by the defendant and which was involved in a collision in the early hours of 18 January 1998.
Cited by 2 cases
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HCPI000033/2000 HCPI 33/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES NO. 33 OF 2000 --------------------
-------------------- Coram: Hon Suffiad J in Court Dates of Hearing: 15-19 January 2001 Date of Judgment: 1 February 2001 ----------------------- J U D G M E N T ----------------------- 1. The plaintiff claims damages from the defendant for personal injuries sustained by him while a back seat passenger in a car GW9173 driven and owned by the defendant and which was involved in a collision in the early hours of 18 January 1998. The facts 2. On the night of 17 January 1998 at between 10:00 p.m. and 11:00 p.m., the plaintiff, the defendant and two other friends visited bars in the Wan Chai area and there all four of them had consumed a number of alcoholic drinks until about 6:00 a.m. the following morning. The defendant, feeling unwell at that time, wanted to go home. However, he allowed himself to be persuaded by one of the others that they should all go for some snacks. As a result, all of them got into the defendant's car with the defendant driving. The plaintiff took a back seat. The car was driven to Central. Shortly after passing the junction of Garden Road and Queen's Road Central, the front part of the defendant's car hit the rear part of a taxi damaging the taxi. Despite that, the defendant's car did not stop but continued at high speed into Queen's Road Central. After passing the junction of Duddell Street, the defendant's car crashed through the pedestrian railing on the south side of the pavement of Queen's Road Central, mounted the pavement, knocked down a lamp post, crashed into a telephone booth and came to rest after hitting the front of a shop. As a result of that crash, the plaintiff suffered severe head injuries. 3. As a result of that occurrence, the defendant was prosecuted in the Magistrates Court for driving while under the influence of alcohol, reckless driving and failing to stop after a collision. To all these charges, he pleaded guilty, was convicted and sentenced to two weeks' imprisonment and was disqualified from holding a driving licence. 4. The above facts were not in dispute between the parties. The defence 5. The defence as pleaded denies negligence and pleads contributory negligence of the plaintiff. Initially two matters were relied on by the defendant in that respect. The first one was that the plaintiff failed to wear a seat belt while a back seat passenger in the defendant's car and the second was that the plaintiff knew or ought to have known that the defendant was drunk and not fit to drive but agreed to be driven by the defendant which journey resulted in the accident complained of. However, because no expert evidence has been called by the defendant to show how and to what extent the injuries to the plaintiff could have been prevented or reduced had a seat belt been worn, the defendant has abandoned the seat belt point. Liability 6. The defendant has admitted the conviction for reckless driving. The onus is therefore shifted to the defendant to disprove negligence. The defence has made no attempt to adduce any evidence to disprove negligence on the part of the defendant. Nor was any submission made to that effect. 7. In the circumstances, I find that the defendant was negligent in causing this collision and the resultant injuries to the plaintiff. Contributory negligence 8. The evidence before me, of which there is no dispute and which I accept, was that during the seven or so hours which the plaintiff, the defendant and their other two friends were visiting bars in Wan Chai on the night in question, each had consumed about seven to eight bottles of beer as well as one or two glasses of fruit juice mixed with whiskey. There was also evidence which I also accept that the defendant's blood alcohol content taken shortly after the collision was about three times over the limit permitted by law. 9. The short point submitted by the defendant in respect of contributory negligence was that the plaintiff knew (if he was sufficiently sober) or ought to have known (if he was drunk) that the defendant was not fit to drive when he boarded the defendant's car at about 6:00 a.m. on 18 January 1998. 10. The plaintiff denies there was contributory negligence. That denial, however, was not based on any involved factual dispute. Indeed the plaintiff had no memory of the events that night leading up to the accident and was unable to give any evidence as to what had occurred. 11. The denial of contributory negligence was put on this basis by Mr Clough. Firstly, it was submitted that the onus was on the defendant to show contributory negligence and that the defendant was not a credible witness. Secondly, it was submitted that the plaintiff was not himself a qualified driver. Thirdly that the plaintiff had never been in a similar situation previous to this occasion. Based on these matters, it was submitted that the defendant has failed to prove that the plaintiff was aware or ought to have known that he was putting himself at risk due to the defendant's drunkenness. 12. It was also submitted by Mr Clough that the facts of the case show that there were in fact two accidents. One was when the defendant's car hit the taxi from behind. After that, the evidence given by the taxi driver in his statement made to the police (which was an agreed document in this trial) showed that the defendant's car then veered to the left of the taxi and drove off at high speed. Some 250 metres down Queen's Road Central, the defendant's car then crashed into the railing and mounted the pavement. 13. On these facts, Mr Clough submitted that, more likely than not, the defendant was trying to escape after hitting the taxi from behind and his driving off at high speed was the cause of the second crash. 14. Accepting that the impact with the taxi was not a major impact (judging from the minor damage to the rear of the taxi as can be seen from police photographs taken at the scene) and that the major impact which more likely than not caused the severe head injuries to the plaintiff, if what Mr Clough was trying to say was that the cause of the injuries to the plaintiff was due to the speed at which the defendant's car was being driven off to escape after hitting the taxi and not due to the drunken state of the defendant, then my own view of the matter is that the cause of the second collision was due both to the drunken state in which the defendant was in as well as the speed at which his car was travelling. In a situation of this sort, it is difficult, if not impossible, to differentiate between the state the defendant was in and the speed of the defendant's car as being the only cause of the collision. 15. In coming to this finding, I have taken into consideration the medical evidence from Dr Fung Ching Fai that the defendant's breath test revealed breath alcohol level of 79 mg per 100 ml breath (equivalent to blood alcohol level of 180 mg per 100 ml) which is well above the prescribed limit of 22 mg per 100 ml of breath. According to Dr Fung, the defendant's driving ability would have been impaired at the level of alcohol tested since blood alcohol level of 80 to 90 mg per 100 ml (equivalent to breath alcohol level of 35 to 40 mg per 100 ml) judgment would be affected, motor skills impaired, vision is diminished and driving is therefore dangerous. 16. I find as a fact that there was contributory negligence on the part of the plaintiff for the following reasons. The plaintiff, before the accident, was a normal adult 39 years of age. For the seven hours or so before the accident, he had been drinking with the defendant and two other friends. All four of them had consumed more or less the same amount of alcoholic drinks in that period of time after which they had all boarded the defendant's car which was then driven by the defendant. But for his state of intoxication, the plaintiff ought to have known that the defendant was not in a fit state to drive and ought to have known that he was putting himself at risk in so doing but nevertheless did so. 17. The law in this respect is quite simply that a person cannot be heard to deny his own contributory negligence because he did not fully appreciate the situation by reason of his state of intoxication brought on by his own act. 18. In so far as apportionment of the plaintiff's contributory negligence is concerned, I take into account the factors advanced by Mr Clough in submitting that there was no contributory negligence. I take note that this is the first time (according to the defendant) that he had driven with the plaintiff as a passenger after they had been drinking alcohol. There is also no evidence to show that the plaintiff had actual knowledge of the drunken state of the defendant but only because he had, by his own self-intoxication, affected his own perception of the circumstances. In all the circumstances of this case, it is not possible to distinguish it from the facts in this aspect from the cases of Owens v. Brimmell [1977] 1 QB 859 and Morton v. Knight [1990] 2 Qd R 419, where in both cases, 20% was apportioned for the contributory negligence of the passenger. I think it right, therefore, that the plaintiff's own contributory negligence should be assessed at 20% and to that extent the plaintiff's damages will be reduced. Injuries and treatment 19. I now turn to the question of quantum. After the accident, the plaintiff was admitted to the Queen Mary Hospital in an unconscious state with an open wound to the vertex of his skull. Medical investigation showed a compound depressed fracture of the skull and traumatic subarachnoid haemorrage. X-ray also showed fracture of his spinal process at the 5th and 6th cervical vertebrae. An emergency craniotomy was performed for the depressed skull fracture on the same day. The plaintiff remained unconscious for some three weeks. Thereafter the plaintiff suffered from post-traumatic amnesia for about two months after the accident. The plaintiff was transferred to the MacLehose Medical Rehabilitation Centre on 24 February for recovery and was discharged from there on 13 July 1998 but continuing to attend as an out-patient for therapy. 20. A second operation for the plaintiff took place on 4 August 1998 (some six and a half months after the first operation) at Queen Mary Hospital to repair the skull defect and for bone grafting. The plaintiff gradually recovered from the severe skull injury but suffered right side hemiparesis. By December 1998, he was able to walk with the aid of a walking stick. 21. In July 1999, the plaintiff was examined by Dr Kan Yiu Ting, a neurosurgeon who was of the opinion that the plaintiff had sustained a grave injury to the brain with focal damage to the motor and sensory cortex with prolonged post-traumatic amnesia entitling the injury to be classified as "extremely severe". Dr Kan stated that although the plaintiff has regained the ability to take care of his own basic needs, however, he found that the plaintiff's complaints at the time of the examination to be weakness in his right arm and leg, walking with a noticeable limp in his right leg, slow and needing support when walking. Moreover, Dr Kan also concluded that the plaintiff has impaired memory, particularly recent memory, mood and behaviour changes as well as cognitive and speech impairment. 22. All these impairments constituted a 43% impairment of the whole person as assessed by Dr Kan at the time of that examination in July 1999. However, Dr Kan emphasised the fact that this assessment must be regarded as interim only depending on further improvements. In a later report dated 17 November 2000, and as a result of a further examination of the plaintiff on 8 November 2000 and due to some improvements in his condition, Dr Kan was able to re-assess his impairment as constituting 32% of the whole person. 23. The plaintiff was also examined by a psychiatrist Dr Chung See Yuen in November 1999 who formed the opinion that the plaintiff was suffering from dementia due to head trauma as a result of his head injury. The typical symptoms shown by the plaintiff putting him in that category are his multiple impairments in his cognitive function together with inappropriate laughter at times. Because of this, Dr Chung states that although the plaintiff can take care of his basic needs and go by himself to nearby places, he cannot lead a totally independent life. This is due to his impaired memory and his restricted ability to learn new information and skill which prevents him from going to where he is unfamiliar with and makes it difficult for him to cope with changes. It will restrict his social life and activities. 24. Dr Chung recommends certain courses of psychological treatment to assist the plaintiff in coping with strategies as he is prone to develop adjustment disorders due to his impaired intellectual function. 25. Professor Peter Lee, head of the Psychology Department of the Medical Faculty of the University of Hong Kong also examined the plaintiff. Professor Lee conducted the Wechsler Adult Intelligence Scale Test upon the plaintiff, which according to the Professor is the most comprehensive test for assessing an individual's overall cognitive function. The result of that test on the plaintiff showed him to be functioning intellectually within the borderline intelligence range. The Wechsler Logical Memory Test conducted on the plaintiff produced results which indicate that the plaintiff was impaired in his verbal learning and memory functions having particular difficulties in encoding processing and storing information presented in the middle of a chain of other information to be learnt. 26. From the application of these tests on the plaintiff, Professor Lee came to the conclusion that the plaintiff had sustained a serious brain injury from the accident and apart from his mobility difficulties, such injury has left him with significant impairment in his psychological, personality, cognitive and memory functioning. Professor Lee further opined that the plaintiff has suffered about 20% loss of his previous cognitive functions and that he has difficulty in understanding and taking the viewpoints of others, thus in his frustration, he becomes easily irritable and agitated. Also his ability to deal with the routine stresses of everyday life is expected to be poor and significantly diminished. Currently he has managed to remain relatively emotionally stable only by sheltering himself from practically all real hassles and stresses. Finally, Professor Lee concludes that the plaintiff is expected to have much difficulty formulating, managing and following through complex plans and ideas and while he is not reckless or impulsive, he would predictably have great difficulties managing more complex decisions and long term investment or planning of his own affairs. 27. All the doctors called by the plaintiff were of the view that the plaintiff, due to the impairment as a result of his head injury, will not be able to return to his pre-accident job of buying and selling fish in the Aberdeen Fish Market. Neither would he be fit to take up any other form of employment. 28. The defendant called two doctors who had also examined the plaintiff. Dr Fung Ching Fai, a specialist in neurosurgery and Dr Benjamin Lai, a consultant psychiatrist. Basically, both the doctors called by the defendant are in agreement with the doctors called by the plaintiff that the plaintiff had suffered a severe head injury from trauma. The only difference between the doctors called by the defendant and those called by the plaintiff is really one of degree as to the present impairment of the plaintiff. 29. Firstly, Dr Fung was of the view that the plaintiff did not suffer any mood and behavioral changes nor should his condition be categorized as dementia. Indeed in his first report on the plaintiff, he took the view that the only impairment to the plaintiff was a risk of epilepsy and that he had weakness in his right arm and right leg. He found no other impairment and assessed the plaintiff's impairment as 8% of the whole person with a 30% reduction of working capacity. 30. Secondly, Dr Benjamin Lai concluded that the plaintiff was suffering from features of frontal lobe damage and depressive illness. 31. Having detailed the differences in opinions between the doctors called by the plaintiff and those called by the defendant, should it be necessary for me to resolve that difference, I have no hesitation in accepting the evidence given by all the doctors called by the plaintiff for these reasons. 32. In the case of Dr Fung, when under cross-examination, it became apparent from his answers that he came to his conclusions that the plaintiff had no intellectual or memory impairment based on what he observed and from the tests he conducted on the plaintiff. One of the factors which he considered in arriving at his conclusion was that he himself did not observe any inappropriate laughter from the plaintiff when all the other doctors (including Dr Benjamin Lai) did. Dr Fung accepted that inappropriate laughter was itself an indication of mood/behaviour change. He also accepted that the other doctors did, as stated by them, observe inappropriate laughter from the plaintiff as a fact. Yet he could not explain how it was that he did not take what other doctors observed into account in coming to his own assessment. He could only say that he did not take that into account because it was not observed by himself, albeit that the fact of those observations were accepted by him. 33. In the case of Dr Benjamin Lai, he tried firstly to explain the difference between his assessment of the plaintiff and the assessment given by Dr Kan on the basis that the plaintiff had improved in his mental condition to such an extent that when he examined the plaintiff, the plaintiff had recovered so much that he was as good as a normal person with no intellectual or memory impairment. One has only to look at the plaintiff (as I had the chance of doing when the plaintiff gave evidence) to see that he was far from being a normal person. Phenomenon described in the medical reports about the plaintiff staring up at the ceiling thus avoiding eye contact or giggling when there was nothing to giggle about were quite apparent when he was giving evidence from the witness box. 34. Secondly, Dr Lai tried to make an issue that a score of 28 out of 30 in the Mini-Mental State Test indicates that the plaintiff did not suffer from dementia. However, when cross-examined on this aspect, he accepted that the Mini-Mental State Test was a screening test for dementia. This was fully explained by Professor Lee, which I accept, that being a screening test, there comes a cut-off point in the score of about 23 or 24, below which it is highly indicative of dementia but that a score of over the cut off point does not indicate the absence of dementia because the top score of 30 in this test is made up of a very low ceiling. 35. Thirdly, Dr Lai tried to paint the picture that the plaintiff did not fall within the diagnostic criteria for dementia as laid down in DSM IV. Initially he did not state which of the criteria the plaintiff did not fulfill, but when pressed on this point in cross-examination, his answer wavered between not having any memory impairment or not having any impairment of occupational function. Those answers by Dr Lai were wholly unimpressive underlining the fallacy of his assessment. 36. I was left with the distinct impression that both Dr Fung and Dr Lai were downplaying the condition of the plaintiff as much as they possibly can in all the circumstances of this case. As such, I am unable to attach weight to the assessment of the plaintiff's condition and his impairment given by the both of them. Pain suffering and loss of amenities 37. Pain suffering and loss of amenities have been agreed by the parties at $900,000.00 and that amount will be awarded under this head of damage. Pre-trial loss of earnings of plaintiff 38. In so far as this head of damage is concerned, there is a dispute of fact between the parties as to whether or not the plaintiff was in gainful employment immediately before the accident. The plaintiff says that he was employed and working in the Aberdeen Fish Market, buying fish brought in by fishing boats and reselling them to fish retailers in markets. The defendant on the other hand says that the plaintiff was not in employment and had not been working for one or two years before the accident because the plaintiff was spending almost half the time in a year in Mainland China. Immigration record produced by the defence actually showed that the plaintiff did spend some 164 days in the year 1997 in Mainland China. Neither does the plaintiff dispute the fact that he had spent a large part of 1997 in Mainland China. 39. The defence also point to the evidence of the plaintiff as to his employment to say that the evidence given by the plaintiff on this aspect is wholly incredible and should not be accepted. 40. In his witness statement (which stood as his evidence in chief), the plaintiff stated that he was employed by one Mr Lai Chi Wah and was paid a monthly salary of $7,500.00 and an annual bonus of $3,000.00 for his work. The plaintiff had also obtained a written certificate signed by Mr Lai to the same effect. The defendant's solicitors then obtained an interview with Mr Lai who denied that he had ever employed the plaintiff as well as the truth of the contents of the certificate which he signed. At the trial, Mr Lai was not called as a witness by either party, for, although a subpoena was issued by the plaintiff to have Mr Lai attend the trial, Mr Lai was nowhere to be found for service of the subpoena on him. 41. Under cross-examination, the plaintiff's evidence was that there was a lady boss called Mrs Chung. Mrs Chung paid Mr Lai and Mr Lai paid him. He was paid a basic salary of $7,000.00 to $8,000.00 and he also had a share of profit which was calculated by Mr Lai but he did not know how Mr Lai calculated his share of profit. He accepted what Mr Lai gave him and he only knew that the bigger the profit, the more he received. Initially the plaintiff explained that he would receive his salary as long as he worked for more than 15 days a month. Later, he seemed to be saying that as long as the work got done, the boss did not care and would not know how many days he actually worked in the month. 42. Admittedly if such evidence came from a normal person, it would be looked upon with more than just a little suspicion. However, in the present case, I have to bear in mind that the plaintiff had suffered a severe head injury with prolonged post-traumatic amnesia which has resulted in mental and intellectual impairment. I also note that the plaintiff is not an articulate person at the best of times with a low education standard when assessing the evidence given by him. 43. There is also evidence from the plaintiff's mother that the plaintiff was paying for some of the household expenses and supporting her to the extent of one or two thousand dollars per month. Moreover, there is evidence from the plaintiff's brother that he had, for the six months or so before the plaintiff's accident, come across the plaintiff and Mr Lai having breakfast at Aberdeen when he got the impression that they had both just come off from work at the Aberdeen Fish Market because they were talking about the price of fish. I have no hesitation in accepting the evidence of the plaintiff's mother and brother as to the plaintiff's employment. 44. The plaintiff has also admitted when it was put to him in cross-examination that he spent so much of his time in Mainland China in 1997 because he had a girlfriend there. That being the case, in my view that provides the plaintiff with a good reason and incentive to be gainfully employed. From all the evidence adduced, I find it more likely than not that the plaintiff was working at the Aberdeen Fish Market as he said in evidence and he was paid a monthly salary of $7,500.00 per month. As for his share of profit, no figure having been given by the plaintiff, I make no finding as to the amount of it. Nor has the plaintiff made any mention in his oral evidence of a yearly bonus (although that was stated in his witness statement) and again I make no finding as to such amount. 45. I accept the medical evidence from the doctors called by the plaintiff that the plaintiff will not be able to resume his pre-accident work nor any other employment. The loss of pre-trial earnings therefore comes to a full 36 months at $7,500.00 per month which gives $270,000.00. Loss of earnings of plaintiff's mother 46. The plaintiff's mother had to give up her employment as a dish washer at a restaurant to look after the plaintiff after he met with the accident. This head of damage has been agreed between the parties at $203,400.00 and the same shall be allowed. Special damages 47. The plaintiff's claims for travelling expenses and tonic food under this head of damage are agreed between the parties at $12,230.00 and $600.00 respectively and they shall be allowed. Future loss of earnings 48. As already indicated, I accept the opinion of the plaintiff's doctors that because of his resultant impairment from the accident, it is unlikely that the plaintiff will be able to work again in any kind of employment. His pre-accident earnings was $7,500.00 per month and I shall use that as the multiplicand. As for the multiplier, the plaintiff has suggested 13 and the defendant says 11. I take into account the present age of the plaintiff is now 41. His pre-accident employment of buying and selling fish in the Aberdeen Fish Market does not involve the kind of very heavy manual work which one would expect of, say, a construction worker. It would involve contacts with market operators and also fishermen, which no doubt the plaintiff had since his father was a fisherman before. In the circumstances, had it not been for the accident, I would have expected the plaintiff to have continued in that line of work probably at least until age 60 or even over that. Accordingly, for a person of his age, 13 is, in my view, a reasonable multiplier. Using that as the multiplier, the loss of future earnings come to $1,170,000.00. Equipment 49. Due to his present medical condition, the plaintiff claims the cost of the following equipment as being reasonable to alleviate his condition.
50. Initially, in so far as the first three items were concerned, the amounts for them were agreed by the defendant subject to the plaintiff establishing the need for those items. However, the defendant has now agreed the first three items completely. 51. As for item (d), namely, the limb exercise machine (alternatively gym membership calculated on a multiplier of 18), this, the plaintiff submits, arises from the fact that both the right arm and right leg of the plaintiff are weak due to his hemiparesis and the plaintiff requires constant exercise to both those limbs. At present, the plaintiff gets his exercise by walking in a park nearby his home each day. 52. For the defendant, it is submitted that the cost of the exercise machine (alternatively the gym membership) is extravagant and the medical evidence shows that the plaintiff's condition is more or less permanent so that it is unlikely that the plaintiff will improve even with such a machine. 53. I find myself in agreement with the defendant on this aspect. There is no evidence before me as to how the sum of $70,000.00 is arrived at being the cost of the exercise machine. Moreover, there is no evidence from any of the doctors that the plaintiff will benefit from using such a machine. The burden is on the plaintiff to show not only that such a machine is necessary for the plaintiff but also that the cost for it is reasonable. This the plaintiff has failed to do. I therefore disallow this claim for the limb exercise machine. As for the gym membership, the same consideration applies with the added factor that having to get himself to a gym in his condition probably pose more inconvenience to the plaintiff than would benefit him. Part-time helper 54. The plaintiff claims the sum of $673,920.00 to enable a part-time domestic helper to be engaged to assist the plaintiff with the household work. This amount is calculated on the basis that the helper works two hours a day for six days a week at $60.00 per hour, and applying a multiplier of 18. 55. The defendant objects to this claim on the grounds that the evidence from the mother of the plaintiff is that the plaintiff has never done household work before the accident. All the household work was done by the plaintiff's mother previously. Therefore, the defendant says that the need for a helper is not due to the injuries caused to the plaintiff but due to the plaintiff's mother getting older with time. 56. I do not accept that argument of the defendant. Even though the plaintiff did no household work before the accident but left it all to his mother, there would have come a time when the mother became too old to do the household work and the plaintiff would have had to do some if not all of it himself. With the kind of income the plaintiff was earning before the accident, it would be most unlikely that he would have got paid help for the domestic work. However, because of his injuries now, he would not be in a position to do the housework himself when his mother gets too old for it. 57. I also take into account both Dr Kan and Dr Chung has recommended that a part-time helper be engaged to take care of the plaintiff when his mother grows old and cannot take care of him. 58. I am of the view that both the claim and the basis of calculation of the amount are reasonable and the claimed amount under this head will be allowed in full. Transportation allowance 59. This is claimed at $250.00 per week again using a multiplier of 18 which works out to be $234,000.00. This is necessary for the plaintiff to travel to the MacLehose Medical Rehabilitation Centre and to Queen Mary Hospital where he is still receiving treatment as an out-patient. Sometimes he travels by public light bus and sometimes by taxi. 60. The defendant submits that a lump sum of $20,000.00 for the claim under this head is reasonably sufficient. 61. I am of the view that $250.00 per week is reasonable for transportation fees. However, I cannot see how the multiplier of 18 is justified since the need for the plaintiff to travel to the rehabilitation centre or hospital must decrease with time. I shall allow this claim for the next 10 years. On that basis, the total amount comes to $130,000.00. Social activities 62. The claim under this head for $10,000.00 is agreed to by the defendant and will be allowed. Future psychiatric treatment 63. Future psychiatric treatment is recommended by Dr Chung for the plaintiff for 10 sessions for him to be taught coping strategies and to be given insight into his condition which will cost $25,000.00 and a further 20 sessions for him to deal with adjustment disorder if he should come under stress costing a further $50,000.00. Dr Chung also recommends that the plaintiff mother attend some 10 sessions costing $25,000.00 for her to be taught how to take care of her son. That recommendation was made in November 1999. 64. The defendant's objection to the claim under this head of damage is on the grounds that Dr Chung, in cross-examination, conceded that such treatment is also available in Government hospital at nominal costs only, thereby making it unnecessary and therefore unreasonable for the defendant to have to pay for such treatment from the private sector. The defendant does not say that the recommended treatment is not necessary for either the plaintiff or his mother. The defendant, however, is prepared to pay a lump sum of $40,000.00 for the plaintiff's psychiatric treatment. 65. My own view of this matter is that the plaintiff has a duty to mitigate his loss. If such treatment is available in government hospital (and there is no evidence that the treatment from government hospital is any less effective than what is offered in the private sector), then the plaintiff should not unreasonably increase or enlarge the amount he can claim from the defendant by obtaining such treatment from the private sector. However, I have some doubts as to whether the plaintiff's mother, not being a patient herself, would be able to obtain such psychiatric treatment from a government hospital. In the circumstances, the offer of $40,000.00 by the defendant appears to me to be reasonable in this case and I will order that amount under this head. 66. To sum up the awards that has been made above are as follows :-
67. The total amount of damages stated above is on full liability. However, as I have found the plaintiff to be 20% to blame for the injuries suffered by him due to his contributory negligence in this case, that amount will be reduced by 20% which gives the sum of $2,740,120.00. Interests 68. Before I deal with interests in this case, it should be noted that the defendant had made a voluntary interim payment into court of $500,000.00 on 18 July 2000. That sum of $500,000.00 has remained in court since its payment in and has not been paid out to the plaintiff as yet. I have ascertained that it has been kept in an interest bearing account since its payment into court. The earned interests from the voluntary interim payment will be repaid back to the defendant. 69. The special damages in this case comes totally to $486,230.00 on full liability. Reduced by 20% to take account of the plaintiff's contributory negligence, it would give the sum of $388,984.00. Interests on that reduced amount of special damages will run at half judgment rate (i.e. 6.25%) from the date of the accident until judgment and thereafter at full judgment rate. 70. Interests on general damages for pain suffering and loss of amenities (being $720,000.00 due to the 20% reduction for contributory negligence) will carry interests at 2% from the date of the Writ (11 January 2000) until judgment and thereafter at judgment rate. 71. I shall leave the actual calculation of the interests to the solicitors for the parties to work out. Order 72. There will be judgment for the plaintiff in the sum of $2,740,120.00 together with interests to be calculated in the manner already stated above. Needless to say credit will be given to the $500,000.00 voluntary interim payment now in court. Costs 73. There will be a cost order nisi that the defendant do pay the costs of this action to the plaintiff, to be taxed if not agreed.
Representation: Mr Neal Clough, instructed by DLA, for the Plaintiff Mr Paul Lam, instructed by Messrs Tang & So, for the Defendant Remarks: |
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