Yung Wai and Others v. Lee Man

HCA002353/1983

1983 No. 2353

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

BETWEEN

Coram: Master Clay in Chambers

Date of Hearing: 6th December 1983

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ASSESSMENT OF DAMAGES

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1. On 2nd November 1981 the plaintiff was crossing Kwai Chung Road within the limits of a light controlled pedestrian crossing when he was struck and knocked down by a Public Light Bus driven by the Defendant. The Writ was issued on 26th February 1983 and interlocutory judgment for damages to be assessed was entered on 22nd April 1983.

2. Following the accident the Plaintiff was admitted to Princess Margaret Hospital. A report from Dr. C.K. Hung showed that upon admission the Plaintiff was very drowsy and unable to remember events. There was a haematoma over the right occipital region and abrasions on the face and limbs. The Plaintiff was neurologically normal and a skull x-ray revealed no fracture. His condition progressively improved and he was discharged home on 9th November 1981. He was re-admitted the following day complaining of headaches but no abnormal neurological signs were discovered and he was transferred to the Yan Chai Hospital on 13th November 1981 and discharged home from there on 17.11.81. On 26th April 1982 the Plaintiff was out walking in the street when he suffered convulsions fainted and fell down. He was readmitted to hospital and was found to be suffering from epileptic fits and since then he has had to take regular medication.

3. The Plaintiff called Doctor Edmund C.T. Cheung to give evidence on his behalf. Dr Cheung told me that when he examined the Plaintiff he had available reports from the Doctors who had seen the Plaintiff previously and an E.E.G. report dated 29.4.82. In his view the Brain Scan Findings were consistent with the effect of brain damage and the E.E.G. consistent with brain damage and/or epilepsy. Dr. Cheung told me that the concussion and brain damage were consistent with the Plaintiff having been involved in a road accident. Having taken everything into consideration he considered that the accident was most likely the cause of the Plaintiff's epilepsy and brain damage.

4. Dr. Cheung told me that the Plaintiff has been taking drugs to control his epilepsy but the Plaintiff still has minor attacks and therefore there is incomplete control of the epilepsy. There was a chance that the Plaintiff might stop taking medication but it is more likely he will to take it for the rest of his life.

5. The Doctor considered that the Plaintiff's earning capacity would be affected by his epilepsy and the fact that the Plaintiff may not be his whole self. He said that he would not advise the Plaintiff to use machinery that could cause bodily harm to himself or others. He put the loss of earning capacity at 20-30%.

6. The Plaintiff gave evidence in support of his claim for the items of special damage and in relation to how his epilepsy affects him. He told me that even though he takes drugs for his epilepsy he gets convulsions and whilst he does not lose consciousness during the convulsions he becomes confused and has to sit down for a while. The convulsions last for a few seconds and occur now about once a month. He told me that prior to the accident he was an apprentice learning how to use machines for printing and making paper boxes. Following his return to work he was not allowed to use machinery and now does odd jobs only and he will not be allowed to complete the apprenticeship. He told me also that whereas before the accident he could manage to complete upto 6 hours overtime in an evening now he can only manage 2-3 hours at the most as he is less physically fit.

7. The Plaintiff called a Mr To to prove the matter of the Plaintiff's earnings. At the time of the accident the Plaintiff was earning $1,300 basic salary p.m. with overtime and double pay in addition. He estimated that if the Plaintiff had not been injured he should now have been earning $2,000 - $2,300 p.m. as basic salary. He estimated the Plaintiff's loss of basic salary at between $300-$600 per month and a loss of $300 p.m. in respect of overtime.

Damages for Pains Suffering and Permanent Disability

8. Mr Hamblin for the Plaintiff urged me to find that the injuries sustained by the Plaintiff brought this case onto the borderline of the serious injury category in Lee Ting Han v Leung Kam Ming Civil Appeal No. 11 of 1980. I accept that submission. The Plaintiff here has suffered a brain injury and in all probability will suffer epileplic fits for the rest of his life which will only partially be controlled by drugs.

9. I was referred to 3 other cases. Ashley Middleton v Cheng King Ying HCA 7211 of 1980 a decision of Mr Registrar Wilson in which the Plaintiff was awarded $50,000 for a less serious injury, Cheung Wai Lin v KMB in which Jones J. awarded a sum of $65,000 for a head injury leading to loss of smell and memory impairment and finally Li Yuen Wah v Chan Yee Kuk HCA 635 of 1979 in which Mr Commissioner De Basto awarded $50,000 to a Plaintiff who had suffered head injuries including a fracture, headaches and an epileptic attack.

10. I consider that the proper sum to be awarded in this case is $60,000. This will be increased by 50% to $90,000 following the Court of Appeal decision in Li Ping Sum's case.

Special Damages

(1)    Cost of hospital accommodation

(2)    Cost of Attending Baptist Hospital

(3)    Cost of brain scan

(4)    Cost of follow-up treatment at Queen Elizabeth Hospital.

(5)    Travelling expenses of the Plaintiff's mother

These items have been proved and are allowed in full.

(6)    Tonic food -

This has been proved to the extent of $450 and that amount is allowed.

(7)    Damaged clothing -

This is allowed at $210

11. I propose to consider these together. The Plaintiff's witness Mr To put the Plaintiff's loss of basic salary at $300-$600 per month. I propose to adopt the figure midway between these figures of $450. To that is added the estimated loss of $300 per month overtime making a monthly loss of $750. From the date of his return to work on 16.12.81 until the date of trial a total of 23 2/3rds months has elapsed. After giving credit for 1 month's outpatient treatment already provided for the plaintiff's pre-trial loss is $750 × 22.666 = $17,000 and this is awarded. As for loss of future earning a quantified loss of $750 per month has been established through the evidence of Mr To. The Plaintiff is now aged 20 and I consider the appropriate multiplier to be 15, $750 × 12 × 15 = $135,000. In Li Ping Sum's case the Court of Appeal adopted a different approach and applied the estimated level of disability to the actual salary earned at the date of trial. In this case there was no medical evidence as to the percentage disability suffered by the Plaintiff although the Doctor did assess loss of earning ability at between 20% and 30%. Applying a figure of 25% to the Plaintiff's present salary with overtime a sum of $130,500 is reached. I propose to award the higher sum.

12. There will be interest on the General Damages at the rate of 2% from date of issue of the writ to judgment and on the Special Damages at 5.5% per annum from the date of accident until judgment.

13. There will be the usual Orders for payment of the General Damages into Court and investment until the Plaintiff attains 21.

14. There will be an Order for payment of the Plaintiff's costs by the Defendant and for the Plaintiff's own costs to be taxed under the Legal Aid Regulations.

15. Dated this 20th day of January 1984.

Representation:

Appearances: Mr Hamblin of DLA for Plaintiff

Defendant present in person