Nazir Begum Din and Others v. Lee Kwei Ying, Peggy and Another
Read the full judgment text of HCA 3811/1980 on BabelCite. This High Court CFI judgment was delivered on 6 June 1984.
1. On the 15th July 1977 Mrs Nazir Begum Din and her daughter Fahimah Din were struck by a car on the pavement outside 30 Conduit Road, Hong Kong. The car was driven by the 1st Defendant and owned by the 2nd Defendant.
Cited by 1 case
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HCA003811/1980 1980 No. 3811 IN THE SUPREME COURT OF HONG KONG HIGH COURT BETWEEN
Coram: Master Hansen in Chambers Dates of Hearing: 9 March 1984, 12-15 March 1984 Date of Delivery: 6 June 1984 __________________________ ASSESSMENT OF DAMAGES __________________________ 1. On the 15th July 1977 Mrs Nazir Begum Din and her daughter Fahimah Din were struck by a car on the pavement outside 30 Conduit Road, Hong Kong. The car was driven by the 1st Defendant and owned by the 2nd Defendant. 2. At the date of the accident Mrs Din was aged 23 years and her daughter was aged 4 years. 3. A large number of medical reports on both plaintiffs were produced. A number were agreed and in relation to the balance their makers were extensively cross examined by Mr Rodway. 4. I propose to deal with the plaintiffs individually, even though in some areas the awards will inevitably overlap. Nazir Begum Din 5. Although her injuries were not nearly as serious as those suffered by her daughter the first plaintiff did suffer considerable injuries. Those noted by Dr K.P. Chan on her admission to Queen Mary Hospital were a communited fracture of the right fibula and tibia; a fracture of the left pubic rami of the pelvis; and a fracture of the left transverse process L5. Along with her daughter, Mrs Din was transferred to the Hong Kong Sanatorium on the 22nd July 1977. This was at the suggestion of the defendants and Mrs Din was placed under the care of Dr Wong Sze Kin. At the Hong Kong Sanatorium the compound fracture of the right tibia and fibula were reduced by operation and the fractures were fixed by a metal plate. This was done on the 27th July 1977. She was placed in a long leg plaster which was changed fortnightly. The pelvis fracture was actively treated and she was discharged from hospital on the 19th September 1977 still wearing a long leg plaster which was finally removed on the 10th October 1977. At that stage it was expected that there would be very little in the way of permanent disability. 6. However, even at an early stage one of the problems now besetting the first plaintiff was manifesting itself. In a report dated the 13th October 1977 Dr Wong said
7. In his next report Dr Wong reported on Mrs Din's satisfactory progress in relation to the fractures. He mentioned a permanent cosmetic disability.........
8. This report also reveals the 2nd problem now besetting the 1st Plaintiff. Dr Wong said........
9. Again comments were made concerning a degree of psychological trauma with a suggestion that a psychiatrist be consulted. 10. At the time of the hearing Mrs Din's major problems related to her back condition and her psychological condition. 11. The medical reports and evidence revealed that the low back pain persisted and intensified. As a result Dr Wong carried out a spinal fusion operation. Unfortunately this failed. Following consultations with Dr Hodgson, who had been instructed by the defendants, a further fusion operation was carried out. Unfortunately, the operation carried out by Dr Hodgson was also unsuccessful. A joint report on Mrs Din by Drs Wong and Hodgson was agreed between the parties. This report was dated the 3rd February 1983. There was little change in the physical condition in the 13 months prior to the hearing and this report best summarises Mrs Din's physical problems......... "Present Complaints:-
12. Both of these doctors gave evidence to amplify and clarify their various reports as did a psychiatrist, Dr David Chan. 13. Turning firstly to the evidence from the two surgeons. 14. Both doctors were questioned about the likelihood of a further fusion operation and its possible success. Dr Hodgson was of the view that there was only a very small chance of success, whereas, Dr Wong thought there would be a 50/50 chance of success. 15. Dr Wong considered that Mrs Din would only contemplate such an operation if the pain got so bad she considered the risk worth taking. He said there would be a continuing deterioration of the back and this would lead to more pain. In reply to a series of questions during evidence in chief Dr Wong described what may be described as the worst scenario. This would be that the deterioration would be so bad that there could be pinching of nerves that could lead to weakness in the knees. However, he was of the opinion that it was unlikely that Mrs Din's condition would reach that stage. 16. Mr Rodway referred Dr Wong to the fact mentioned in his report that the 1st plaintiff suffered some low back pain before the accident. He asked "Might it have been with the passage of time that she might have needed an operation in the future?" Dr Wong answered "Not necessarily. It might have been. " In re-examination Mr Bokhary referred Dr Wong to the evidence of a fracture of the left transverse process L5 in Dr Chang's agreed report. Mr Bokhary asked whether this was related to Mrs Din's back problems. Dr Wong said "at the time in my first report I had no knowledge of the fracture of L5. When I saw her it had probably healed. Now thinking back that fracture so close to the area which helps substantiate that she had an injury to the spine at the time of the accident. " 17. I am satisfied on the balance of probabilities that the problem Mrs Din has with her back today, and which has resulted in the two failed fusion operations, flowed directly from the accident. 18. Dr Chan's evidence in chief and cross examination occupied considerably more time than that of the other medical witnesses. He confirmed the contents of the various reports that had been handed in in Bundle III. These reports were not agreed and Dr Chan was cross examined at length upon them. 19. At the time of the hearing he was of the opinion that Mrs Din had lapsed into a state of severe depression. She sees no hope of an improvement of her back condition and this requires supportive therapy. She needs the encouragement and pressure from her husband to attend follow up treatment. 20. His latest report dated 5th March 1984, summarised Dr Chan's view of her condition. This report stated: -
21. Dr Chan said he had prescribed three types of medication for Mrs Din:- 22. Firstly, anti-depressants which help to maintain her mood on a level and should give her greater fighting heart. 23. Secondly, mild tranquillizers because she is in a constant state of tension and this relaxes her. 24. Thirdly, anti-convulsants because of the presence of abnormal brain waves comparable to those thatoccur in epilepsy. Anti-convulsants are used to stop the abnormal brain waves. 25. He said it was the flashbacks that caused him to first have an E.E.G. carried out. This, he stated, showed that the impulse came from an abnormal origin such as a scar or a tumour. These abnormal discharges can spread through the brain leading to convulsions; loss of consciousness; bizarre behaviour and the symptoms manifested by Mrs Din i.e. memory flashbacks and sudden mood changes. 26. Dr Chan said if Mrs Din's treatment stayed the same the annual cost of treatment would be $6,000 - $7,000 per month. 27. During Mr Rodways cross-examination one particular theme kept recurring. That was Mrs Din's poor attendance record for her follow up visits to Dr Chan. It is quite clear that her attendances were much more irregular than the doctor would have wished. Dr Chan also made it quite plain that more regular attendances would have meant Mrs Din's psyohological condition would have been much better at the time of the hearing. 28. Dr Chan first saw Mrs Din on the 9th December 1977 and reported on the 28th January 1978. He concluded........
29. When he saw her next in March 1978 she had deteriorated and he commenced treatment. This delay, he explained, was because the initial examination was an assessment requested by the 1st plaintiff's solicitors and he reported directly to them. 30. In his next report of the 14th August 1978 it appeared Mrs Din had attended regularly and this had lead to a distinct improvement and steady progress. 31. In the next report of the 3rd March 1979 Dr Chan mentioned that Mrs Din had not been attending regularly and in fact he had last seen her on the 12th December 1978. However, despite the irregularity of attendances she apparently continued to progress. At that time he took the view she would progress more rapidly with more regular attendances. He felt at that time she needed to attend psychotherapy regularly for another 6 months. Looking ahead at the date of this report Dr Chan felt regular treatment would be unnecessary after 6 months. 32. Unfortunately, Mrs Din did not go to Dr Chan again until June. From June to the date of the next report on the 4th October 1979 she attended 7 times. Dr Chan stated in his report she attended more regularly but he conceded in cross-examination that the visits were still not regular enough. 33. This report also contains the first references to "sudden mood changes." Dr Chan was first told of these on the 15th June 1979 and an E.E.G. resulted on the 30th June. This revealed the presence of slow activities over both postero-temporal region. Dr Chan said: -
34. Mr Rodway asked what this slow activity arose from. The answer was "Because very often a scar takes some time to develope and after the scar tissue is settled it start sending off the discharges." He conceded there was no mention in this report of scarring." He said it was not some-thing that could be seen on an X-ray. 35. The following question and answers followed in cross-examination Q : "Reference to concussion again a presumption on your part?" A : "Organic examination was E.E.G. It revealed presence of discharges from injured brain cells." Q : "Can you relate these to the accident?" A : "No." 36. Dr Chan said this condition could be controlled by the anti-convulsant drugs but he was aware that Mrs Din did not always take her medication. 37. The next report was 11 months later on the 14th September 1980. This revealed, once more, that Mrs Din was not very persistent in her attendances on Dr Chan. Indeed she attend only 6 times when the ideal would have been fortnightly. At that stage there were three limbs of a successful recovery: -
38. There is then a gap until the next report on the 29th December 1981. In that 13 month period there were 16 attendances. However, Mrs Din had been in hospital undergoing her second spinal fusion operation. At the time of the report she was no doubt hopeful that this operation would prove successful. Indeed, this is probably the most optimistic of Dr Chan's report. It reads........
39. Unfortunately, as we now know, that operation was also a failure. 40. The final report, reproduced earlier, was 2½ years later. During this time Mrs Din only attended Dr Chan 12 times. Dr Chan told Mr Rodway that the mood changes would be controlled if she took her medication regularly. He readily agreed that if Mrs Din had been attending him regularly her condition would have been better at the date of the last report. He said the depression referred to in the first paragraph of page 2 of this report could not be controlled by medication alone. He said the operation on her back had failed and she had nothing to look forward to but more pain. In those circumstances supportive psychotherapy was required. 41. He said Mrs Din now needs to attend fortnightly until her condition stabilises and this would take 3-5 years. After that she would need to attend 6 monthly. 42. Dr Chan told Mr Rodway that the reference to marital and sexual problems in the last report were based on what the 1st plaintiff told him. 43. In re-examination Dr Chan said that abnormal brain waves appear 2-3 years after the injury. He said in Mrs Din's case he could find no other reason other than her accident for the abnormality. He said he had attempted to discover other reasons but had failed. 44. He also dealt with Mrs Din's irregular visits. He said the problem was that it was Mrs Din's condition; her depression, that lead her to "a couldn't care less attitude". For this reason she did not attend and there was no way a doctor could force a patient to attend for treatment. This could only occur if the patient was suicidal or violent and could be committed. 45. He said her symptoms of sudden mood changes and flashbacks could be attributed to the abnormal brain waves. However, her other symptoms were "part and parcel of her reaction to the results of the accident and the fact that she has to expect to live with back pain for the rest of her life plus her present marital and sexual problems. " 46. It was impossible for Dr Chan to say with absolute certainty that the abnormality arises because of the accident. However, there appears to be no other reasonable explanation for the phenomena. The evidence of the first plaintiff, her husband and her sister-in-law make it plain that the flashbacks and sudden mood changes did not exist before the accident. The standard of proof is, of course, on the balance of probabilities. On that standard I am satisfied that the abnormal brain waves are a direct result of Mrs Din's accident. 47. By the same standard I am also satisfied that the rest of Mrs Din's psychological problems do flow from the accident. She was initially depressed and upset over her daughter and this led to her first referral to Dr Chan. She started to improve and was then faced with the failed fusion operation. When her hopes were raised by Dr Hodgson's second operation there was again an improvement. But that ended drastically when the second operation failed. I accept that if she attended Dr Chan regularly and took her medication she would be in a better psychological condition today. However, I am equally satisfied it is her depressed state created by the aftermath of this accident that has lead to her poor record in this regard. It may be that Mrs Din could have received more support from her husband and family. On this point the evidence is not totally clear, but it must be noted that Mr Din's business made it essential for him to be in Macau from Tuesday to Friday every week. This, of course, limited the support he could give. I must take Mrs Din as I find her at the assessment. The exception to this would be if Mrs Din refused, unreasonably, to undergo treatment. Here we have a young woman who used to be bright and attractive. Now her personality and appearance have both changed. Twice the medical profession have built up her hopes that her back pain would be cured. Twice these hopes have been dashed. Further her psychological problems are of such a nature that, amongst other things they create "a couldn't care less attitude." In all the circumstances it is hardly surprising that she wonders what good the medical profession can offer her. Again, based on the requisite standard of proof, I hold that Mrs Din's failure to undergo more regular treatment is not unreasonable. 48. Mrs Din also gave evidence as did her husband and sister-in-law. 49. The first plaintiff gave evidence of her life prior to the accident, both before and after her marriage. Her work before her marriage was of a clerical and general office/receptionist nature. She said about 2 months after her marriage she started working part time for her husband. This involved general office duties in his pest control business. (A business that operates in Hong Kong, but whose main business base is Macau.) She said because of her husband's business he was in Macau from Tuesday to Friday every week. 50. Mrs Din went on to describe a normal day immediately before the accident. She said she would dress the children and give them break-fast; then she would take them to her mother-in-laws before going on to work. She gave details of the general office duties she carried out. She would work from 9 a.m. to 12.15 p.m., or perhaps a little later if her husband was in Macau. Then she would either attend a fitness centre or lunch with her mother-in-law. Having done this she returned home and attended to household chores. At this time the family employed a neighbour on a part time basis to do some cleaning and dish washing work. Mrs Din said she was paid $900 p.m. by her husband. 51. Mrs Din also gave evidence of her general activities before the accident. She attended barbecues and picnics; went shopping and to the cinema with friends; went to her husband's club with the children while he played hockey. Photographs of Mrs Din before the accident were produced and they showed a smiling and attractive young woman. Mrs Din said that before the accident she was fit and healthy and weighed 113 lbs. She enjoyed cooking and housework and led an active happy existence. 52. All this contrasted sharply with the witness that appeared in front of me. Somewhat overweight, morose and taciturn in appearance. 53. Mrs Din went on to describe the events of the accident. She said how she could hear Fahimah crying as she lay trapped. She told of seeing Fahimah still and pale in the ambulance with blood stained bandages from the waist down. 54. Mrs Din spoke of her failure to attend Dr Chan as regularly as the doctor suggested. She said that sometimes she just wasn't in the mood to go out. She said the pain in her back caused her not to want to go anywhere. She said she did take her medication but that it seemed to her that the visits to the doctor got her nowhere. 55. She then described a normal day at the time of the assessment. She said she didn't sleep well and would normally rise around 4 a.m. - 5 a.m. She said the pain of her back woke her. She would get up to ease the pain. When the children awoke she would help dress them. She would not cook breakfast as she would be unable to do so. She would then accompany Fahimah to school. On her return she would rest either by lying on her bed or by sitting in a folding chair. She said she could do only a very limited amount of housework. She is forced to wear an orthopaedic corset. She cannot bend. She cooks only rarely and then only if she is seated at the stove with the amah handing her ingredients. She no longer goes shopping for herself and her family. She cannot wear high heels. In fact she normally dresses now in track suits or trousers and T Shirts and always wears what are commonly referred to as "trainers". She does not see her friends and rarely talks to them on the telephone. She has attempted to attend the cinema but has been forced to leave before the showing is half over. She has not worked since the accident and has not returned to the fitness centre. 56. She gave evidence regarding her amah. She said a second amah was employed on the 1st April 1981. This was just before the second spinal fusion operation on the 1st of September 1981. The second amah continued to be employed until the 30th June 1982. 57. Mrs Din said but for the accident she would have continued working part time for her husband and she would have employed only a part time amah. 58. Mr Rodway cross examined Mrs Din at length regarding her employment by her husband. The husband was also cross-examined at length on this subject. The point of this line of cross-examination was to establish that Mrs Din was not genuinely employed by her husband's firm and the monthly payments were a way of getting some money to the wife in a tax deductible manner. However, I am satisfied by the evidence of both Mr and Mrs Din that she was in genuine part-time employment with her husband's firm at the time of the accident earning $900 p. m. 59. She denied that she did not take the pills prescribed by Dr Chan. However, she agreed with Mr Rodway that she did not keep all her appointments with Dr Chan. She said there were two reasons. The first was that the pain in her back created such a mood that she didn't want to go. The second, in relation to more recent times, was that she had appointments with Dr Chan for 10 a.m. and he did not turn up tuntil after 11 a.m. She said the sitting and waiting caused her pain. 60. As regards her back she stated she had not been back to the doctors after the two operations failed as she had been told by doctors that they preferred not to do a third. She said to Mr Rodway that if the two doctors recommended a third operation she would undergo it immediately. 61. Mrs Din's sister-in-law, Hajarah Khan, also gave evidence. She said she worked with Mrs Din before her marriage to Kerm. Prior to the accident she saw Mrs Din almost daily. She described Mrs Din as an active and quick person who would go dancing, picnicing, shopping and the other normal activities of a young married woman. She said before the accident Mrs Din was always well dressed and modern. This was no longer the case. 62. Before the accident Mrs Din was very good with children. Indeed Mrs Khan's own daughter would go to the Din household a couple of times a week. Mrs Din would bath and fed her. Mrs Khan said this contrasted with Mrs Din now who was very impatient and intolerant with the children. 63. She said if one visited Mrs Din now she would either stay in her room or if she did not she would spend the time complaining of the pain she suffered. She said Mrs Din had put on weight and no longer cared about her appearance. She had no interest in going out with her children or her friends. 64. Mrs Khan agreed with Mr Rodway that she did not see Mrs Din very often anymore. But the tenor of her evidence was not shaken in cross-examination and I accept her description of the pre-and post-accident Mrs Din as accurate. 65. Mr Kerm Din gave evidence of the deteriorating marital relations with the first plaintiff. He said their marriage was very good prior to the accident and their sexual relations were normal. He said now Mrs Din had no interest in sex and the marriage relationship was not very good, the reason being the complete change in Mrs Din's personality. 66. He said but for the accident his wife would have continued to work for him and he went on to say the wage increases received by his employees varied between 10% and 30%. 67. Mr Din produced various contracts relating to his employment of amah and drivers and gave evidence about this. 68. Finally he said he was prepared to play a more active role in ensuring his wife attended Dr Chan more readily. 69. Mr Rodway cross examined him at length regarding two matters. The first was the genuiness or otherwise of Mrs Din's employment. I have already commented on that. The second related to the drivers and their expenses. I do not propose to go into this cross examination for reasons I hope will be apparent from my award under this head. 70. Mr Rodway suggested that by now, in the normal course of events, the family would have employed a full time amah. Mr Din said no as he wanted to save money to send his daughter to school in the U.K. It was also suggested to Mr Din by Mr Rodway that the employment of the second amah was an unnecessary luxury. Mr Din said it was not. He said it was necessary because he knew his wife's second operation was serious. He then gave evidence of the difficulty Mrs Din had in going to the toilet after her return home from this operation and how she required assistance. Pain Suffering and Loss of Amenities 71. Mr Bokhary submitted that Mrs Din is in a pitiable condition. He said she has put on weight; she is scarred; has no desire to go out or to receive people; she is in constant pain and is trussed up in a corset; her marital relationship has deteriorated; she is on the verge of giving it all up and ending it all. He submitted her appearance today bears no relationship to the woman who existed before the accident. He said what is particularly bad is Mrs Din's psychological problems. If she had been reduced to a vegetable that would have been a disaster for her family, Mr Bokhary submitted, but it would have been much less distressing for her. The situation is, Mr Bokhary said, that the plaintiff knows what she is missing. Mr Bokhary submitted the evidence showed that Mrs Din was one of those "get up and go no nonsense" sort of woman before the accident. Mr Bokhary submitted that looking at Mrs Din's case overall; taking into account scarring, immobility, consant pain and depression it should be placed in the disaster category of Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. Allowing for the inflationary effect of Li Ping Sum v Chan Wai Tong and another CA 53/83 the award for PSLA should be $150,000 and upwards. Mr Bokhary submitted that in this particular case the loss of amenities loomed very large. 72. On the other hand Mr Rodway submitted however that the appropriate award was in the middle range of the substantial injury category of Lee Ting Lam v Leung Kam Ming (supra). This means an award, allowing for inflation, in the range of $120,000 to $150,000. Mr Rodway submitted that her original injuries were comparatively minor and that she had a duty to mitigate to her damage. This she had failed to do by her irregular attendance for treatment. He said she certainly did not belong in the disaster category nor even in the gross disability category as she could not be compared with a paraplegic. 73. I do not think anyone who spent two months in hospital following an accident would be pleased to hear their injuries described as comparatively minor. In terms of a comparison with her daughter's injuries it may be an appropriate description. However, I am satisfied Mrs Din's injuries were serious. They were compounded by the back problems and two failed operations, which as I have already said, I am satisfied were caused by the accident. I am equally satisfied the psychological problems result from the accident. I have already held that Mrs Din's irregular attendance record with her medical advisers, especially Dr Chan, is not unreasonable. Indeed, the defendants own medical adviser Dr Hodgson thought she was quite genuine and if anything understated her condition. This can be seen in his reports of the 28th August 1979 and the 4th May 1981. 74. Mrs Din entitlement to damages under this head arises under three categories:-
75. In Lee Ting Lam v Leung Kam Ming (supra) at pg. 660 Cons J.A. said
76. As Mr Bokhary rightly pointed out the defintion is a disjunctive one. I am satisfied that the combination of problems faced by Mrs Din today place her in this category, albeit towards the bottom end of it. The effect of Li Ping Sum is to increase the range to $150,000 to $225,000. I award $170,000. Loss of Future Earnings 77. Mr Bokhary submitted that as Mrs Din is now aged 30 years a multiplier of 15 should be applied. He said a common sense approach would be to recognise that the $900 p.m. she earned at the time would have increased with inflation and could now be in excess of $2,000. 78. On the other hand Mr Rodway submitted that Mrs Din was not genuinely employed and the $900 p.m. was nothing more than a device whereby part of the household expenses were written off against the business. Her duties were not onerous and there was no necessity for Mrs Din to work. He said she gave evidence that she intended to have more children and what work she did do would not have continued for much longer. 79. I am satisfied, on the balance of probabilities, that Mrs Din would have continued to work part time for her husband. In the special damages claimed for loss of earnings a 10% annual inflation rate has been claimed. This gives a present day figure of $1318 p.m. which I consider to be the appropriate multiplier. 80. However, given that the business of her husband has prospered, I do not consider she would have continued working past 40. The appropriate multiplicand is, therefore, 10. I award
Cost of Special Future Care 81. This claim covers the cost of amahs and drivers or the use of taxis. 82. Mr Bokhary submitted that Mrs Din would need assistance for the rest of her life. He said the second plaintiff would also need assistance and the award should be split between them. He submitted this award should be a whole of life award and should be based on a multiplier of $1500 p.m. The award should therefore be: -
which should be apportioned between the first and second plaintiff. 83. Mr Rodway accepted that it was reasonable, in light of the injuries to employ a full time amah. However, he said the evidence was that Mrs Din already had a part time amah and she is only entitled to the difference, which Mr Rodway submitted was 50% of the cost. Further he said a full time amah was only necessary until the stage when the second plaintiff would go to school in England. He said the award should be only for half the cost of an amah and only for a limited period. 84. I think Mr Rodway's submission is correct. Furthermore, despite Mrs Din's evidence, I consider the financial status of this family was such that at some stage a full time amah would have been employed. I intend to apply to a multiplier of $750 p.m. (50% of the amahs wage) a multiplicand of 5. The award is therefore:-
85. I do not consider it necessary to apportion this award between the first and second plaintiffs. 86. Mr Bokhary submitted that his client was also entitled to an award to cover taxis fares in the future. Mr Rodway conceded $2,000 subject to his general comments on the global award which I will deal with later. 87. Mr Bokhary also said the evidence showed that Mrs Din used 6 special corsets year and the cost $150 each. He said presumably she will need them for the rest of her life and he claimed $18,000 i.e. $900 x 20 years. According to the record the defence made no submissions on this award. I think it is a legitimate claim. 88. The total award under this head is: -
Cost of Future Medical Care 89. Figures were advanced in evidence as to the cost of a third back operation. Mr Bokhary said there was a substantial chance of this: firstly if there was a deterioration or secondly if the plaintiff decided to chance a second operation. I am satisfied, on the balance of probabilities, that there will not be a third operation. Neither doctor would recommend such an operation now and Dr Wong's evidence was that it was unlikely the future deterioration would be such that an operation would be necessary. There is no award for this operation. 90. Mr Bokhary submitted that Mrs Din was also entitled to damages to cover future psychiatric care. 91. Mr Rodway, however, said that the plaintiff can't have it both ways. He said she can't say the future is bleak and her life a disaster on one hand and on the other way she is entitled to recover damages for future treatment given her indifference. 92. I consider Mrs Din is entitled to such treatment even if success may be doubtful. As well she is faced with taking anti-convulsant drugs, at least, for the rest of her life. 93. However, I think even the lower claim set out in Mr Bokhary's aide memoire is high. I award $35,000. Special Damages Purchase of Rebounder 94. This was agreed and I award $1350. Medical Expenses Up to 1.3.84 95. This was agreed and I award $34,600. Loss of Earnings 96. It follows from my comments under the head of loss of future earnings that this claim is allowed. I award $37,354 covering the period 1.4.80 to 1.3.84. Salary of Amah 97. The first plaintiff was already employing a part time amah. She is entitled to half the award which is $26,475. Salary of Second Amah 98. Mr Rodway submitted this was an unnecessary luxury. Mr Bokhary said it was necessitated by the assistance Mrs Din needed after her second operation. I accept that extra help would be required but it should be limited to 5 months. This covers the period during which Mrs Din said she was confined to bed. I award $7,000. Wages and Costs of Drivers and Travelling Expenses 99. I do not accept the evidence that a driver was necessary. Taxis would have sufficed. This is an award that covers both plaintiffs. I consider it was reasonable for the child to be taken to and from school for reasons I will give when dealing with the second plaintiff. The present costs of that is $1,980 per month, but taxi fares have increased a number of times since 1980. Taking all these factors into account I award $35,000. I do not consider it necessary to apportion this between the first and second plaintiff. Purchase of Hand Mattress 100. This was not dispute and I award $3,800 as claimed. 101. Mr Rodway made a general submission to close. The effect of this was that one should look at the total award one could get in this case by adding together all the heads of damage submitted by Mr Bokhary. He said one must compare such a figure with a global awards made to victims with more serious injuries to get a true perspective. He referred to the award in Mak Yin Tai v Kwong Kwok Fai HCA 1427/83 a case that clearly fell into the disaster category where the total award was approximately $775,000. He said if you added together all the plaintiffs' claims you would be approaching this sort of figure. He said this could not be right and the case must be contained with reasonable bounds and one should look at the overall effect of this judgment. Mr Rodway also referred me to Fu Yuk Ming v Lee Fook Choi and another [1975] HKLR 250 and especially the comments of Leonard J (as he then was) at pg. 266. 102. In reply to this Mr Bokhary agreed that one must look at the case in the round. However, he said this cannot mean that you cut down a claim for loss of future earnings because the award for pain, suffering and loss of amenities is high. 103. I accept and adopt Mr Bokhary's submission. Summary of Award to 1st Plaintiff
104. Some of the special damages claimed have already been met by interim payments made by the defendant. For such payments the defendant will be given a credit as per the schedule handed in less, $1,200 shown in the 8th schedule. It was agreed that this sum had not been paid. It was further agreed that a payment of $2,240 had been made but not shown in the 10th schedule. There will be an additional credit for this sum. 105. There will be interest at the rate of 2% per annum on the award for pain suffering and loss of amenities from the date of the service of the writ until judgment. There will be no award of interest on the awards for loss of future earnings; costs of future special care; and the cost of future medical care. There will be interest on the special damages at the rate of 6.75% p.a. from the date of the accident until judgment. Fahimah Din 106. Miss Din suffered grievous injury in this accident. Indeed, it is a tribute to her medical advisers that she survived. Miss Din suffered from lacerations of the abdominal wall, degloving injuries of both legs and a compound fracture of the left fibula. She was admitted to Queen Mary Hospital. She received operations for repair of the abdominal wall; excision of the extensive degloving injuries; open reduction of a fracture-separation of the lower left tibia and fibular epiphyses with dislocation of the left ankle; and insertion of a metallic pin into the left femur for traction treatment of a fracture in the subtrochanteric region of the left femur. 107. Despite the efforts of the medical staff at Queen Mary Hospital there was a fear that Miss Din's left leg would have to be amputated. At the suggestion of the defendants Mrs Din approached Dr Wong Sze King for assistance. As a result Miss Din was transferred to the H.K. Sanatorium on the 22nd July 1977 and Dr Wong took over the case. 108. In a report dated the 11th October 1977 Dr Wong described the child's condition when he took over the case. He stated her general condition was fair but "the lower limbs were in an appalling state." Dr Wong then detailed the extent of these injuries and I think it is important to reproduce the relevant passage in full:-
109. As a result on the 23rd July 1977 open reduction of the fracture of the left femur was carried out. This involved the insertion of a metal plate to stablize the fracture. At the same time extensive excision and skin grafting was carried out to both legs, the donor skin coming from the thighs. At that time the grafting covered about 70% of the wounds. The wounds and fracture of the left leg were immobilised by a plaster spica extending from the nipples to the toes and a long leg plaster was applied to the right leg. A paediatrician was called in to assist and the child's general health improved and her fever came down. On the 4th and 18th August 1977 further skin grafting operations took place. Since those operations the whole of the child's legs have been covered by skin. 110. As a result of lengthy antibiotic treatment a monilia bowel infection developed. This gradually cleared up and the general health of Miss Din improved rapidly and her weight loss was regained. 111. The plasters were removed on the 2nd September 1977 and a radiological examination conducted. This fracture separation of the lower left tibia and fibula were also united but there was some separation of the lower ends of the two bones which resulted in some widening of the joint space. 112. Miss Din underwent an intensive course of physical therapy and was discharged from hospital on the 22nd September 1977. She of course continued to attend outpatients. 113. On the 6th March 1978 Miss Din was re-admitted to hospital and the bone plate was removed. She was discharged from hospital on the 21st September. She was again admitted to hospital on the 8th August 1980 when an unsightly 4" scar on her right knee was excised. She was discharged on the 21st August. 114. It is quite clear that this child suffered injuries of an extremely serious nature. Numerous reports covering the period since the accident were produced. These can be divided into those from Dr Nicolson and Associates dealing with the cosmetic injuries and those from the orthopaedic surgeons dealing with the other injuries. Photographs of the scarring on the child's body were also produced. 115. The photographs and Dr Nicolson's reports reveal quite terrible scars, especially those of the lower legs. These scars were detailed in Dr Nicolson's report of the 1st December 1980
116. Dr Nicolson went on to conclude that from the cosmetic aspect Miss Din suffered from both deformity and disfigurement. He stated that the scars were permanent and would not improve to any significant degree. Dr Nicolson also said that the scars cannot be significantly improved with plastic surgery. 117. In relation to Miss Din's other injuries the most comprehensive review of her condition is to be found in an agreed report by Drs Wong and Hodgson dated the 3rd February 1983. 118. This report also details the scarring listed by Dr Nicolson. In dealing with the left ankle dorsiflexion and plantarflexion they found there was a slight limitation on the left side compared with the right. The other movements of the ankle were good. 119. An X-Ray examination revealed that the left leg was ½" longer than the right. The doctors had this to say: -
120. Then expressing their opinion the doctors said "We cannot emphasise enough the great severity of these degloving injuries....... and that disability is permanent." The disability mentioned is the scarring of both legs and the loss of muscle bulk and tissue. They were concerned with the condition of the left ankle. They were of the opinion that valgus ankle will develop with considerable deformity requiring operative intervention. They estimate the permanent disability to be in the region of 40%. They add a rider, however, and that is that it is difficult to assess the results of future orthopaedic treatment. 121. In February of this year a further report was obtained from Dr D.T. Lee a partner of Dr Hodgson. This confirmed the content of the joint report. However, Dr Lee said
Dr Lee went on to confirm the permanent disability at 40%. 122. A further medical report was handed in at the hearing. It was a report by Dr Louis Hsu relating to the state of Miss Din's ankle. This report was not based on a clinical examination but on a perusal of Miss Din's X-Rays. Dr Hsu said
123. Drs Wong, Hodgson and Hsu all gave evidence in relation to Miss Din. They, of course, confirmed their reports. However, some matters were clarified or amplified both in evidence in chief and cross examination. 124. All three doctors were examined and cross examined in relation to the cost of further operations for Miss Din. The costs of these operations varied from the most expensive at the Hong Kong Sanatorium to the free service offered by Dr Hsu at Sandy Bay. 125. It seemed to me from the evidence that the only real argument between the doctors was in relation to the state of Miss Din's ankle. 126. Both Dr Hodgson and Dr Wong were in agreement as to the horrendous injuries suffered by this young girl. Both commented on the very extensive scarring of the lower limbs and the loss of muscle tissue. In the agreed joint report dated the 3rd February 1983 both doctors were of the view that valgus ankle would require operative intervention in the future. However, what difficulty exists in predicting the future course of Miss Din's ankle arises because of Dr Hsu's report. This report seemed to suggest that Miss Din may not require an operation for valgus ankle. However, when he gave evidence he clarified his report. He stated that he believed there was a 50/50 chance that an operation would be required on the ankle during the "growth spurt" period. He said later in his evidence that in the long term, and he was talking of a time span of 50 years, surgery was a probability. 127. Dr Hsu also favoured a different type of operation from Dr Wong. Dr Wong's view was that the appropriate type of operation required the insertion of a device to slow bone growth. This would be later removed in a second operation. Dr Hsu, however, was firmly of the view that the appropriate operation was one that involved the removal of a wedge of bone to correct the tilt. Such an operation would require 2 weeks in hospital and approximately 6-8 weeks in plaster. 128. All the doctors were now of the view that Miss Din has no noticeable limp and that she could walk and run easily. They also said she could walk up and down stairs easily. Dr Wong said that the only pain she now suffered was an ache in the left leg when it was wet. Dr Hodgson agreed that the loss of tissue affected the power of the calf to some extent. Dr Hsu felt there was no impediment in the girl attending boarding school and he felt she could do most sports with some restriction on the duration. He agreed in cross examination, however, that his comments in relation to sport were in the nature of a guess and that other factors played a part in a child's suitability to attend boarding school. 129. The views the doctors had of Miss Din's current physical condition contrasted, somewhat, with the view presented by her parents in their evidence. 130. Both parents and an aunt of Miss Din gave evidence relating to her. Mr and Mrs Din said their daughter fell over easily; that she had difficulty in climbing up and down stairs; that she had problems with walking any distance; that she was unable to run or participate in sports. Indeed Mrs Din gave evidence that Fahimah was unable to dress herself. 131. Whilst I accept that the parents could observe the child more closely than the doctors, I accept the views the doctors expressed. Their opinions, based on observation, on the physical problems Miss Din has relating to her legs are much more objective. It is only natural that parents would cosset and pamper and fret over a child following such a terrible accident and this must, understanderably, colour their views somewhat. 132. Mr and Mrs Din and the aunt also gave evidence relating to the child's scars and the effects they have on her life. This evidence reveals that, for the most part, Fahimah keeps her lower legs covered by stockings or long trousers. It also showed that she has already been subjected to brutal teasing from her peers. This is an unfortunate aspect of some childrens' behaviour, but a very real one nonetheless. As an example, teasing about her legs led to Miss Din abandoning her attempt to learn ballet. Fahimah had problems with ballet but persisted with her attempts until this incident. The extent of this abhorrent behaviour has even extended to the child being called a monster. 133. Miss Din suffered injuries of a grave kind. Indeed, but for the skill of those attending her, they may have taken her life. That she has managed such a remarkable recovery speaks volumes for the ability of those attending her and of her own courage. However, she is left with extremely unsightly scars, most of which are in positions where little can be done to disguise them. No further improvement can be expected from plastic surgery and the whole profile of the lower limbs is permanently altered. I accept the medical evidence that she is now a fit healthy child with some aches in her left leg, exacerbated by damp weather. (Such weather being a common situation in Hong Kong) I accept the further medical evidence, in prefernce to thatof her parents, that she is able to walk and run and to dress herself. I accept she is now physically capable of taking part in a range of physical activity but her endurance is clearly less than a normal child of her age. As regards the valgus ankle I am satisfied on the evidence in front of me that an operation is a probability. It is, of course, impossible to say at this stage when this will take place. On Dr Hsu's optimistic scenario there is a 50/50 chance within the next 4 to 5 years. Even on that most optamistic of assessments, in the longer term, an operation is still a probability. Whether such an operation will take the form recommended by Dr Hsu or that recommended by Dr Wong will be for the parents to decide in due course. Pain Suffering and Loss of Amenities 134. Mr Bokhary referred to Daswaney v China Motor Bus Co Ltd and another HCA 1399/78 where the award was $65,000. Further, he submitted that in view of Li Ping Sum v Chan Wai Tong v others CA 53/83 the Daswaney award would be $100,000. Mr Bokhary submitted that on the question of scarring alone Miss Din's condition was far worse. He stated that he appeared in the Daswaney case and could vouch for the fact that Miss Din's scars were much worse. This of course, amounted to counsel attempting to give evidence although Mr Rodway did not object. He also submitted that Miss Din was much worse off in relation to her other injuries than Sonia Daswaney. She underwent 3 operations at Queen Mary Hospital and a further 3 at H.K. Sanatorium after she was transferred there at the defendants suggestion. Worse, says Mr Bokhary, the injury to her ankle means that she faces surgery in the future, the possibility of early degenerative changes and further pain. He said her scarring was very bad indeed; the whole contour of the legs had changed with the large loss of tissue. He said Miss Din also had substantial scarring in the areas where donor skin had been taken from. He submitted the child also suffered the torment and embarrassment of teasing from other children. Although this shouldn't happen, said Mr Bokhary, the children did have a point as a perusal of the photographs shows the scars to be very ugly indeed. The worst feature of the scarring, he submitted, was that the loss of configuration was so obvious. Nothing could be done to hide it. Indeed, Mr Bokhary aptly described the condition of Miss Din's legs below the knees when he said they "look like a child's bad drawing of a leg". Mr Bokhary said no decent man should turn from the second plaintiff because of her scars. But he said reality isn't always like that. He submitted she could well face a long, lonely life and that her chances of marriage were obviously reduced. He said the award in Daswaney should be used as a starting point and that award today would be $100,000. Given that Miss Din was a much worse case than Daswaney Mr Bokhary submitted the appropriate award under this head was $150,000. 135. Mr Rodway said nothing to suggest Miss Din's injuries were less serious than they were. Under this head he made only the brief submission that Miss Din's injuries placed her at the top of the serious category in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. Allowing for the effect of Li Ping Sun (supra) that is an award of $120,000. 136. I am quite satisfied from a close reading of the Daswaney report, that Miss Din's injuries are worse than those suffered by Sonia Daswaney. The child underwent 7 operations and spent a considerable time in hospital. In the Daswaney case plastic surgery would give a 40% - 50% improvement. Here it is agreed that there is no chance of improvement. They are as bad as any scars I have seen, and it is unlikely that their full impact will be felt by Miss Din until she reaches adolescence and young adulthood. Further the scars add up to a greater loss of amenity in a female than they do in a male. Added to all this Miss Din is faced with the probability of future surgery. I accept Mr Bokhary's submission and award under this head $150,000. Loss of Future Earning Capacity 137. Mr Bokhary submitted that despite Miss Din's age, an award under this head was appropriate. He accepted that any assessment under this head in a very young child would be very difficult. He submitted her scarring may tell against her with some employers. He said the parents evidence showed the girl fell down occasionally and also had difficulties with walking. Further, Mr Bokhary said osteo-arthritis was agreed. He submitted it will get worse and may lead to an earlier than normal retirement. He said her range of employment was limited and she would have transportation difficulties. Further she would face time off work which would depend on the need for future surgery. Mr Bokhary referred to Mr Rodway's comment that Miss Din, because of her station in life, would be well educated and would therefore get a decent job. Mr Bokhary agreed that if the child got a good qualification this would help her, but she would still face time off work for operations. Further if she was well qualified and was forced into early retirement because of osteoarthritis her loss would be greater because the qualifications would lead to higher income. However, he submitted the child was in the middle of the class and in the event that she did not obtain a qualification and was limited to work such as being a receptionist, her loss of future earning capacity would be very great. Mr Bokhary submitted that it was not unduly speculative to say Miss Din's monthly loss would be in the range of $750 - $1,000. He submitted to this is should be applied a multiplier of 10. He said in Lee Ting Lam (supra) a multiplier of 12 was applied to a 12 year old. He said it was not unreasonable to apply a multiplier of 10 to Miss Din who is aged 10 years. Therefore, the appropriate award said Mr Bokhary was in the range of $90,000 to $120,000. 138. On the other hand Mr Rodway submitted there was no evidence to justify such an award. He said given the current family background the child was likely t o receive a good education. He said she is not the sort of child who is liable to be in the manual labouring class. All the evidence, said Mr Rodway, showed an aptitude to cope on the part of this child. He submitted that if she could re-channel her life then there should be no award under this head. He submitted the imponderables were so great in a child of this age the Court should not make any award and he said there was authorities to support this view. However, Mr Rodway went on to submit that if the Court takes the view that there is a real likelihood of loss of future earnings it should be taken into account as a global figure. He said there was no evidence that the plaintiff would have any greater difficulty than anyone else in the work force in changing jobs. He said the scarring could be covered by trousers and that no employer will be worried by the loss of the contour of the lower legs. He said in this instance in view of the lack of evidence there should be no award under this head. 139. The question of damages under this head for young plaintiff's is a vexed one. Indeed there are many cases where an award has been made and many where one has been refused. However, at page 661 of Lee Ting Lam (supra Cons J.A. said
140. I am satisfied that Miss Din will certainly need some time off work in the future for medical treatment. I am also satisfied that as a direct result of her injuries she will suffer loss under this head. However, I think it inappropriate to approach such a matter on a multiplicand/ multiplier basis. I consider a global award is appropriate and the figure awarded is $60,000. Special Damagas Salary for Amahs 141. As I said earlier this necessarily overlaps with the first plaintiff's claim under this head and I have already dealt with it. Medical Expenses 142. The figure of $1,200 claimed at Para (c) of Pg. 5 of the amended Statement of Claim was agreed. Accordingly, I award $1,200. Travelling Expenses 143. Since Miss Din started school she has been taken to school by her mother, either by taxi, or by a driver in the family car. Indeed, since the 1st February this year her mother has accompanied her to and from school by taxi at a daily cost of $60. For a 10 month school year this gives an annual figure of $12,800. Mr Bokhary submits that to this should be applied a multiplier of 3 giving $38,400. After that, says Mr Bokhary, the child could probably travel on her own and the multiplicand could be halved to $6,400. To this should be again applied a multiplier of 3 giving $19,200. Accordingly, the award should be $57,600.00. 144. Mr Rodway submitted that the medical evidence showed the child could travel to school in the ordinary way. For her mother to take her to and from school by taxi was unacceptable pampering and the claim is wholly unnecessary. 145. Given the serious nature of this child's injuries I accept it was perfectly proper for the mother to accompany her to and from school. However, it is my view that she ought now to have reached the stage, or at least be approaching it, where she could travel to school in the normal way. Doubtless this is in her own best interests. However, I do not think she should be forced into such a situation overnight. The need to be accompanied to and from school initially arose because of these injuries and I consider she ought to be awarded future travelling expenses to cover a transition period. Accordingly, I allow 10 months from 1.2.84 and award $12,800 under this head. 146. The claim relating to the drivers I have dealt with under - Mrs Din's claim. Special Shoes 147. This claim was agreed and I award $60. Future Medical Care 148. In relation to this head of damage Mr Bokhary handed me an aide memoire which he accepted had no evidential value. However, he stated it set out the plaintiff's position and reflected what ought to be awarded. 149. Mr Rodway's position was that the defendants considered Dr Hsu was the best person available and his services are available free. In relation to the operation he submitted that it was only a probability on Dr Hsu's evidence over a 50 year span and therefore was too remote to consider. 150. However, the best assessment Dr Hsu would make was that there was a 50/50 chance of the 2nd plaintiff requiring an operation during the growth spurt period. Further all doctors agreed that the child needed close monitoring. It may well be that Dr Hsu would carry out the necessary services free. However, the plaintiff's are entitled, within reason, to the medical practitioner of their choice. Further, there can be no guarantees that Dr Hsu's present system will continue, or for that matter that Dr Hsu will continue to be available for Miss Din to consult. 151. I am satisfied the figures for monitoring and travelling expenses set out at (a) of the aid memoire realistically reflect the actual expenses that will be incurred. Accordingly I award here $10,395. 152. As far as the future operation is concerned there was a difference of opinion between Dr Hsu and Dr Wong as to the appropriate manner to treat the valgus ankle. In monetary terms the importance of this disagreement was that Dr Wong's method required two operations. I am satisfied that Dr Hsu has special expertise in valgus ankles and I accept his opinion. I am equally satisfied that the plaintiffs are entitled to opt for the highest standards of treatment and hospital facilities. Under Dr Hsu's method the child would be in plaster for 6-8 weeks after the operation. Clearly there would be follow up visits during this period but this is not mentioned in the aide memoire. Based on the figures mentioned in evidence by Dr Wong relating to the costs of operations and attendant facilities at the Hong Kong Sanatorium, and allowing for only one operation I award $40,000. 153. Accordingly for future medical treatment I award $50,395. Summary
154. There will be interest on the award for pain suffering and lose of amenities at the rate of 2% per annum from the date of the service of the writ until judgment. There will be no award of interest on the awards for loss of future earning capacity the cost of future medical care and the future travelling expenses. There will be interest on the special damages at the rate of 6.75% per annum from the date of the accident to judgment. 155. The awards for pain, suffering and loss of amenities, loss of future earning capacity; costs of future medical care totalling $260,395 shall be paid to the Registrar who shall invest the same at his own absolute discretion and shall hold the moneys to the benefit of Fahimah Din. The Registrar shall in his absolute discretion have authority to make such payments of both capital and interest of the moneys invested by him for the maintenance, education and advancement of Fahimah Din and he may remit such moneys to Kerm Din who shall have authority to give receipt for such moneys. The balance (if any) of moneys held by the Registrar shall be payable to Fahimah Din on the attainment of her majority. The balance of the award can be paid to Kerm Din on behalf of Fahimah.
156. The question of costs was reserved at the completion of the hearing. I will hear counsel on costs.
Representation:
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