Lam Chun Keung v. Motoki Yoshitaka and Another

HCA002723/1972

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: Mr. Registrar O'Dea in Chambers.

Date of Judgment: 10th May, 1978.

Miss Lee of Ho & Wong for Plaintiff.

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DECISION

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1. The plaintiff claims damages for injuries suffered by him when a vehicle in which he was a passenger was involved in a collision on 9th November, 1969. Judgment was entered in the plaintiff's favour against both defendants on 15th June 1977 for damages to be assessed.

2. On the date of the accident the plaintiff was 25 years of age and employed as a pastry worker. He has been unable to resume any form of employment since the date of the accident.

3. The injuries suffered by the plaintiff involved lacerations to the head and some abrasions on his arms. He was rendered unconscious for a period of four weeks and was finally discharged from hospital in March 1970. Shortly after his discharge further medical examinations revealed that the plaintiff had undergone a severe deterioration in his mental condition and he was eventually admitted to Castle Peak Hospital where he remains to this day. A Medical Board convened at this hospital has found that the plaintiff has suffered a personality deterioration as a result of the injuries he received. His memory and ability to learn have been grossly impaired and an assessment of 85% total damage was arrived at. His mental age was found to be that of a 9 year old child. Dr. W.K. Lau, a medical officer of Castle Peak Hospital explained that it was highly unlikely that the plaintiff would ever be able to resume even the simplest form of employment. He would require constant supervision and in view of the absence of any relatives capable of administering the necessary care and supervision required it is inevitable that the plaintiff will spend the rest of his life in Castle Peak Hospital or some similar institution.

4. In assessing a figure for pain, suffering and loss of amenities I have virtually disregarded the slight physical injuries received as these are completely overshadowed by the gross impairment of the plaintiff's mental state.

5. There have been a number of decided cases in Hong Kong which give considerable guidance on the quantum of damages appropriate to this class of case.

6. In "Ng Kam v. Tsang Tak-kuen" O.J.A. No. 232 of 1971 the plaintiff, a 48 year old male, suffered a personality change as a result of injuries to his head. He became violent on occasions and required constant supervision and possibly eventual institutional care. The sum of $62, 800 was awarded for pain and suffering, loss of amenities and loss of consortium. In 'Yung Shi-fun v. Tsang Cheuk-sum' O.J.A. 167 of 1976, a case with rather similar facts to those applying here, the plaintiff a 24 year old woman, suffered injuries in an accident including a fractured skull. This injury resulted in a significant intellectual impairment. She was unable to look after herself and was incapable of doing more than looking at comics or watching television. As her physical suffering had not been great she was awarded $50, 000 for pain, suffering and loss of amenities.

7. Unlike the claimants in both the cases cited this plaintiff does not enjoy the comforts of residing at his own home in the company of family members and it is almost certain that he never will. In all the circumstances, therefore, I propose to assess damages for pain, suffering and loss of amenities in the sum of $75, 000.

8. The plaintiff's employer before the accident gave evidence that his wages were $1,000 plus per month and with overtime he earned as much as $2,000 per month. While these amounts appear to be rather high for a pastry worker to be receiving in 1969 there is no evidence which contradicts it and I feel that the probable salary loss could be put at about $1,500 per month. The plaintiff would, out of his income, have expended a certain proportion on his own needs and I consider that his actual monetary loss would be closer to $1,000 per month. In view of the fact that his present age is 34 the multiplier which can be adopted for the purpose of assessing the loss of future earnings would be in the range of 8 to 11. Taking into account all contingencies I propose to employ a multiplier of 9 and I calculate the loss of future earnings as ($1,000 x 12 x 9) = $108,000. Total general damages are assessed at $183,000.

9. Special damages claimed include a sum of $100 for damage to clothing which I will allow. A further head of special damages relates to the purchase of nutritional food for which $5,400 is claimed. Apart from a suggestion by a doctor who treated the plaintiff that a diet with sufficient proteins would have been desirable there is no other evidence which supports such a large claim. I consider that an allowance of $800 will sufficiently meet this claim. Loss of earnings will be calculated on the figure of $1,000 per month as already determined for a period of just over 7 ½ years. I propose to award $250 to cover the cost of travelling to the hospital incurred by the plaintiff's father.

10. Special damages awarded are as follows:-

11. In view of the plaintiff's mental condition the majority of the damages awarded must be paid into Court to be invested at the discretion of the Registrar. I do accept, however, that the plaintiff was contributing to his father's maintenance while he was earning and no doubt would have continued to do so but for the accident. From the total damages awarded I would require all but $50,000 to be paid into Court with the usual provisions as to investment and payment out applying. The balance of $50,000 can be paid to the plaintiff's father to cover his expenses and loss as a result of the accident.

12. The damages awarded for pain, suffering and loss of amenities will carry interest at 8% per annum from the date of issue of the writ and special damages will earn interest at 4% per annum from the date of the accident.

13. The plaintiff is entitled to his costs.

14. Dated this the 10th day of May, 1978.

Representation:

Miss Lee of Ho & Wong for Plaintiff.