Ng Kam v. Tsang Tak Kuen and Another

HCA000232/1971

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 232 OF 1971

-----------------

-----------------

Coram: Mr. B.L. Jones, Assistant Registrar, in Chambers.

Date of Judgment: 11th day of October, 1971.

-----------------

DECISION

-----------------

1. This is an application for assessment of damages pursuant to a judgment dated the 23rd August 1971.

2. The Plaintiff who is now aged 48 suffered severe injuries to his head and other minor injuries as a result of a road traffic accident that occurred on the 7th July 1969 when he was knocked down by a motor vehicle driven by the 1st defendant and owned by the 2nd defendant. Liability for the accident has not been disputed.

3. The Plaintiff is a married man with four dependent children.

4. The Plaintiff was unable to give evidence due to his physical condition but his wife gave evidence on his behalf.

5. The Plaintiff was unconscious for five days after the accident and upon admission to hospital was found to have a laceration 2" long on the occipital region, multiple abrasions over the scalp, shoulders and four limbs and fractures of the 7th, 8th and 9th ribs. At the time of admission no injury to the brain was diagnosed. The Plaintiff was discharged from hospital on the 15th August 1969.

6. Soon after his discharge it became clear that the Plaintiff was suffering from severe head injuries with moderate brain damage and mental deterioration.

7. Dr. Wen Hsiang-Lai examined the Plaintiff on the 19th February 1971 and in his report said that the Plaintiff had suffered a personality change. He observed that the Plaintiff would become angry easily with no reason. At times he would beat and tie up his ohildren and then show them affection but he did not remember what in fact had happened. About two months after the Plaintiff was discharged from hospital he suffered from generalised seizures which occurred 4-5 times a month lasting for 10 minutes and occurring at night. The Plaintiff did not know when he urinated or defecated at times. When out walking the Plaintiff has made attempts to assault other people and has also tried to attack passing cars. During the course of the examination Dr. Wen says that he himself was nearly assaulted by the Plaintiff. The Plaintiff now walks with the aid of a stick.

8. Dr. Edmund Cheung in his report of the 3rd November 1970 recorded that although the Plaintiff could read and write his own name he was unable to do simple additions and subtractions. His memory of recent as well as past events was described as impaired. Dr. Cheung stated that there had been a very marked mental deterioration and expressed his opinion that it would not be likely that there would be a full recovery of mental capacity in the future. In fact in a further report dated the 16th March 1971 Dr. Cheung states that the Plaintiff's mental condition had not changed.

9. In answer to a question in cross-examination put by Mr. Smith Dr. Cheung said 'He is not able to earn a living even as a manual labourer. He has to be supervised the whole of his life because of very bad gross defect in memory and abnormal behaviour that may be associated with such mental disability. Depending on the way he will behave it is possible he may require institutional care, full time or part time treatment in a mental hospital'.

10. As a result of the accident it is clear that the Plaintiff has suffered severe injury to the brain which has resulted in a personality change and he is now prone to violence towards his family and people in general. The Plaintiff is unable to have sexual intercourse and he is virtually a physical wreck. The Plaintiff will never be able to work again and it is likely that he may have to be admitted to a mental institution in the future. At the present time the Plaintiff is in need of constant care and attention which is given to him at home by his wife. Prior to the accident the Plaintiff, according to his wife, was a normal healthy man which avidence is not in dispute. The Plaintiff was a farmer engaged in poultry, pigs and vegetables from which he derived an income of approximately $1,200 a month. The Plaintiff's wife now works the farm at a monthly income of $200 to $250 but restricted to growing vegetables.

11. Apart from the claim for loss of earnings the other special damages set out in the Statement of Claim totalling $1,403 were agreed.

12. I agree with the suggestion made by Mr. Smith for the defendant that a dependency of $1,000 per month claimed by the Plaintiff is too high and I shall adopt a figure of $700 per month in respect of loss of earnings. The claim for loss of earnings at $700 per month from the date of the accident, 7th July 1969, until today will therefore amount to $18,900 with the result that the figure for special damages is $20,303.

13. General damages will consist of an award in respect of pain and suffering, loss of amenities, loss of future earnings, loss of consortium and an allowance to cover the possibility that the Plaintiff might one day require institutional care in a Government Mental Hospital.

14. I was invited by Mr. Chang for the Plaintiff to assess loss of future earnings on the basis of the actuarial approach adopted by Blair-Kerr, J. in Wong Wai-Chun v. China Navigation Co. Ltd. H.K.L.R. 1969 Page 471, rather than the conventional method of multiplier and multiplicand. However, the recent decision of the Court of Appeal in Mitchell v. Mulholland 1971 1 WLR Page 1271 was not in favour of this method.

15. There are obviously merits in both methods of calculation but I shall apply the method of multiplier and multiplicand in assessing loss of future earnings but making a discount in order that the Plaintiff receives the present value of such prospective earnings.

16. With regard to the claim for loss of prospective earnings I shall adopt a multiplier of 8 with the result that the award under this head of general damage will amount to $67,200.

17. No amount of damages awarded will ever compensate this unfortunate man for the terrible loss that he has suffered and it is always difficult in a case of this nature to arrive at a figure for general damages. There has been no change in the neurological and mental state of the Plaintiff since November 1970 and there was no dispute as to the injuries sustained with the result that unquestionably the damages in this case must be high. In all the circumstances I consider that the sum of $130,000 should be awarded as general damages, which sum includes the prospective loss of earnings of $67,200. The special damages of $20,303 will be added to this figure which will make a total award of $150,303.

18. Costs will be awarded to the Plaintiff to be taxed and there will be the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations Cap. 91.

19. There will be a certificate for counsel.

20. Dated this the 11th day of October, 1971.

Representation: