Yip Kai Ming v. Cheng Chu Mui

HCA001679/1986

Coram: The Honourable Mr. Justice Nazareth in Court

Dates of Hearing: 29th-30th April, 1987

Date of Delivery of Judgment: 1st May, 1987 (P. I. file)

1. The Plaintiff, Yip Kai Ming has been blind, probably since he was a child in mainland China. He came to Hong Kong around 1978 and has since lived in Lion Rock Lower Village. On 2nd January 85, wearing his dark glass and using his white stick, he walked between two cars parked on Wong Tau Hom Road and was in the process of crossing that road when he was struck by a car driven by the Defendant and sustained serious injury, in respect of which he now claims damages. It is not necessary to go into the details of the accident as the parties have agreed to the apportionment of liability between them in the proportion of 85% being the Defendant's and 15% the Plaintiff's. They have also agreed to a multipler of 10 in respect of post trial loss of earnings. Upon application by counsel I have approved that settlement against the possibility of the Plaintiff being under disability; there being evidence of intellectual impairment. What remains to be determined is the level of his income, the sum due in respect of attendance upon him that is alleged to be necessary, and damages for pain and suffering.

2. It is helpful to begin with the matter of pain, suffering and loss of amenity. The major factor is the Plaintiff's loss of memory upon which the medical witnesses on both sides are agreed. The brain scans produced by Dr. Shroff, the neurosurgeon who treated the Plaintiff, clearly show the damage to the left temporal lobe, which has not only affected the Plaintiff's memory but produced a degree of spasticity to the right limbs. The only significant divergence of emphasis or opinion was in reference to the use of the expression subnormality to describe the Plaintiff's resultant intellectual impairment. Indeed the relative clarity with which the Plaintiff began to give his evidence made me doubt whether that was significant but the Plaintiff subsequently tired and his behaviour in court, which it was agreed on all sides was not feigned, made it obvious that there is a degree of impairment as testified by Dr. Shroff.

3. In addition to the intellectual impairment, the Plaintiff suffers headaches occurring on a daily basis, spasticity of his right limbs, weakness which results in his tiring easily, pain in the right hip with some limitation of movement and a slight limp, and at least a 25% risk of developing epilepsy.

4. Mr. Chain for the Defendant says that should place the Plaintiff's claim just below the lowest category i.e. serious injury, propounded in Lee Ling-lam's case (1980) HKLR 657.  However, I agree with Mr. Pritchard who appears for the Plaintiff that it falls well within that category, considering the degree to which the Plaintiff's disability "mars general activities and enjoyment of life but allows reasonable mobility" to adopt the words of Cons J.A. at p.659. It is true that the Plaintiff's diminution of ability to enjoy life stems largely from his blindness and that the results of the injuries would not have produced the same degree of diminution in a person who was not blind. But that in my view is quite irrelevant. Merely because he was vulnerable in that respect is no reason to deny the Plaintiff damages for the additional diminution of his ability to enjoy life, which clearly resulted from his injuries. He no longer goes out or meets his friend for a drink or a chat as often as he used to.  He is now bad tempered. Because of his defective memory and intellectual impairment, he cannot find his way and has to be escorted. He has lost the dignity and quality of life that flowed from his occupation as a fortune-teller. It is common ground that because of his intellectual impairment he is incapable of carrying on his occupation as a fortune-teller. I accordingly plaee his case about the middle of the serious injury category. This was $60,000 to $80,000 in 1980. Mr. Chain submits that 60% of this would be the appropriate increase that should be allowed for inflation; Mr. Pritchard concurs. I accept that increase as reasonable. It produces a sum of $112,000.

5. I turn then to the level of the Plaintiff's income. The only evidence of this comes from him. Being blind he kept no records and did not have a bank account or anything like that. He testified that his income averaged $3,000 a month and detailed the services he performed as a fortune-teller e.g. choosing the right position or altar places in shop premises for which he was handsomely rewarded, and choosing lucky wedding days for which he was not so well rewarded. His evidence was not seriously challenged. It was supported to some extent by his niece who testified that he was an excellent fortune-teller, did not seem short of money, took his meals at restaurants and met all his own expenses. From his evidence and demeanour I got the strong impressions that he was telling the truth and I accept his evidence on the point, which I think is also credible when viewed objectively. In my finding, therefore, the Plaintiff's income prior to the accident was $3,000 per month.

6. I proceed then to the remaining matter of compensation for the attendance that the Plaintiff claims he received and will continue to require in the future. The Plaintiff lived alone in his hut at Lion Rock Lower Village. His niece and her family lived in an adjoining hut. Before the accident she worked in a factory and then when her children were born did piece work from her home. The Plaintiff managed for himself going off to his fortune - telling stall in Kowloon City from about 9 or 10 o'clock in the morning to 7 or 8 o'clock in the evening, and having all his meals out, at tea stalls and restaurants. I accept that by and large he looked after himself without assistance.

7. Following the accident the Plaintiff was hospitalised for just over a month, till early February 1985. He then came home and was largely bedridden. To look after him, his niece stopped taking in work. His condition improved and he can now walk. But as I have indicated, I accept his niece's evidence that he is now not able to go out alone without assistance as he no longer knows the way, notwithstanding that he told Dr.Kan, the Defendant's expert witness, that he knew the No. 1 bus route to Kowloon City. I also accept that he is now far less capable of looking after himself generally. I reject Mr. Chain's submission on the Defendant's behalf that no attendance or assistance at all is now required. But I am not persuaded that the Plaintiff needs full time attendance, even if just upon a constant call or availability basis. He is by no means wholly or even so substantially incapacitated physically and mentally as to need full time attendance. Such assistance as he requires, primarily in being escorted to restaurants and so on, and in having some meals prepared can be provided on a part-time basis. I think it fair to conclude that limited attendance i.e. 50% of one person's time would be required, taking into account that although only a fraction of that time would actually be required to provide actual assistance, the remainder should be allowed to ensure reasonable availability of such assistance. In that regard although the Plaintiff's niece may be readily available at almost any time with relatively little personal disruption, I do not think it would be right to assume that she would always provide that assistance. It is for that reason I have allowed as much as 50% of one person's time. Besides it may not always be the niece, fortuitously able to do so economically and without undue personal disruption, who will always provide the necessary assistance.

8. The only evidence of the cost of attendance pertained to the niece. I think evidence of objective or market costs should have been provided. However no objection was taken on the Defendant's behalf and market costs could well have exceeded the lost earnings of the niece. I propose therefore to proceed upon that basis. The niece's earnings were $1,600 - $1,800 some time ago. I am therefore not being over generous by any means in adopting the median rate of $1,700 claimed by the Plaintiff.

9. The Plaintiff's condition improved from being largely bedridden upon his discharge from hospital to being for practical purposes physically almost as mobile as he was before the accident, around his home at any rate. The evidence is that such improvement occurred in the latter part of 1986. Upon that basis Mr. Chain submits that attendance was necessary for only 18 months. However I think it would be fair upon all the evidence and in all the circumstances to allow 75% for 18 months and thereafter 50% of the niece's time. As regards the claim for post-trial attendance that would be 50% of the cost of attendance of one person upon the basis I have already outlined. This would produce the following amounts:

10. I accordingly award the Plaintiff the following amounts:

11. There will accordingly be judgment for the Plaintiff in the sum of $590,601 together with interest on the pain, suffering and loss of amenities award at the rate of 2% from the date of service of the writ, and upon the special damages, at the rate of 4% since the accident. I will now hear counsel on costs.

Representation:

Mr. Rodney Pritchard instructed by Messrs Hastings & Co. for Plaintiff

Mr. Benjamin Chain instructed by Messrs. Woo, Kwan, Lee & Lo for Defendart