LAI CHI PON v. TOTO STEEL & IRON WORKS LTD AND OTHERS
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1995, No.PI 1149
IN THE HIGH COURT OF HONG KONG
COURT OF FIRST INSTANCE
PERSONAL INJURIES LIST
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| BETWEEN | ||
| LAI CHI PON | Plaintiff | |
| AND | ||
| TOTO STEEL & IRON WORKS LTD. | 1st Defendant | |
| INTERNATIONAL BANK OF ASIA INSURANCE CO LTD | 2nd Defendant | |
| CHEUNG CHIU TAI appointed to represent the estate of YEUNG HOU deceased | 3rd Defendant |
______________
Coram: Hon Cheung J. in Court
Date of hearing: 16 June 1997
Date of Judgment: 18 July 1997
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JUDGMENT ON DAMAGE
_________________________________________________
Injuries
1. This is an assessment of damage pursuant to the judgment I gave on 12th March 1997 for the Plaintiff against the 3rd Defendant.
2. As a result of the industrial accident on 20th January 1997, the Plaintiff lost consciousness and felt severe pain in his back. He could not move his legs and did not have any feeling in the lower part of his body. He was found to have a compressed fracture of his vertebra at T11 and T12. Twenty-four days after the accident, operation was performed on his spine. Shortly after this operation the condition of his legs improved and he regained some limited sensation and movement of his lower limbs.
3. The Plaintiff is now an incomplete paraplegic. He was hospitalised for 27 months, thereafter he received follow-up treatment from a private doctor and from the MacLehose Medical Rehabilitation Centre.
Permanent disabilities
a) Limited movement of his lower limbs
i) He is unable to stand without support.
ii) He can only walk with crutches and an ankle-foot orthosis.
iii) He can only walk awkwardly and clumsily.
iv) He cannot run or move or turn quickly.
v) He is not able to walk on any slopes and has great difficulties climbing stairs.
vi) He cannot carry anything heavy when using crutches, other than a small light bag hanging from the crutches.
vii) He is unable to sit for more than an hour, otherwise he will suffer unbearable pain in his back.
viii) The crutches have caused blisters on his palms. His ankle-foot orthosis has also caused blisters on his feet. He needs ointment to clean the wounds on his feet.
b) Reduced sensation from his abdomen downwards
i) Generally the Plaintiff has no sensation below the knee. The sensation in his thighs is limited.
ii) He gets constant pain, discomfort and paraesthesia in both legs, above the knees. This pain has greatly interfered with his daily activities and he cannot work when he is in constant pain.
iii) He is unable to feel temperatures.
iv) When he is sleeping or sitting, he gets spasms in both legs. The spasms occur about 2-3 times per week. The spasms are worse when he is sitting, and he cannot predict when they will occur. They will last for about 15 minutes. They are not painful, as he has no feeling in his lower legs but they are embarrassing.
c) Double Incontinence
i) He still suffers from bladder problems. He has partial bladder sensation with reflex emptying and a tendency to retention.
ii) He empties his bladder by straining and tapping on the abdomen.
iii) He still wets himself twice a week. He needs to wear diapers at night. After drinking something, he needs to go to the toilet after about 30 minutes. When he goes out, he tries to avoid drinking anything.
iv) He moves his bowel every 2 to 3 days and requires suppositories.
v) He is still occasionally incontinent.
d) Sexual dysfunction
i) His sexual ability is greatly impaired.
ii) He fails 70% of his attempts to have sexual intercourse with his wife which causes him much distress.
iii) Although he was able to bear a child after the accident, he has not had sexual intercourse with his wife for over 1½ years now.
iv) He has lost much if not all of his sexual drive and feels very embarrassed at not being able to perform satisfactorily. The sexual dysfunction is psychological in nature.
e) Psychiatric illness
i) He is suffering from Adjustment Disorder.
ii) He is depressed and worried about his future. He has found it hard to adjust to his disabilities and how to relate to other people, especially his wife.
iii) His self-esteem is low. He lacks interest in most activities and feels pessimistic and incapable to cope.
Prognosis of Plaintiff's condition
1. The Plaintiff's paraplegia and related disabilities are permanent and will not improve.
2. There is a chance of the Plaintiff developing post-traumatic syringomyelia. This is a condition in which there is necrosis of the central region of the spinal cord at or near the site of the original injury. This condition causes increasing and further weakness and sensory disturbance.
3. The Plaintiff is also prone to future complications such as pressure sores and urinary tract infection. He has a unstable neurogenic bladder which empties poorly.
4. It is likely that the Plaintiff's physical condition will deteriorate at a later date with age or sickness. It is highly likely that he would be confined to a wheelchair in the future. It is estimated that he will be wheelchair bound by the age of 45.
5. He is prone to the development of more serious depressive disorders particularly if he comes under stress.
6. The life expectancy of the Plaintiff should be about 43 years from the time of his injury. However, as stated by Dr Yu Yuk Ling and Dr David Lee his life expectancy would probably be longer and near that for the normal male population if he keeps on enjoying good health, has an acceptable residence and can travel by himself.
Pain, suffering and loss of amenities
4. In my view the injuries sustained by the Plaintiff are within the category of disaster. I have fully set out his permanent disabilities and I have also considered the following cases involving paraplegic or tetraplegic in arriving at this conclusion :
Li Tin Yau v. Leung Chi Tai, H.C.A. No.7524 of 1985
(Master O'Donnell 3rd February 1989)
Leung Sai Kui v. F. Zimmern, H.C.A. No.1151 of 1985
(Master Suttill 11th July 1986)
Ng Kwok Wing v. Lau Ping Kwan & Others PI 1013 of 1995
(My decision dated 23rd May 1996)
Choi Mei Ho v. Chung Chiu Ying & Others PI 784 of 1995
(Leong J. 20th March 1997)
The award for pain suffering and loss of amenities is $1.5 million.
Past loss of earnings
5. At the time of the accident the Plaintiff was employed by the 3rd Defendant as a plastering worker. He worked from 9:00 a.m. - 6:00 p.m. for 6 days per week. The Plaintiff's basic wage was $200 a day. His average basic monthly wage was $5,200 (ie 200 x 6 x 52 ÷ 12). According to the Form 2 completed by 1st Defendant, the Plaintiff's monthly salary at the time of accident was $3,000 a month. This figure was obviously wrong.
6. In addition, he was required to work overtime, ie overnight or on holidays. If he worked from 6.00 p.m. - 12.00 a.m., he would get 1 day pay. If he continued to work to 2.00 a.m., he would then get another 1 day pay. On average, he worked 10 hours overtime per month. He was also provided with free lunch and afternoon tea. In 1987, a lunch cost about $15 - $16 and tea about $7 - $8. Sometimes, he was given travel allowance as well.
7. I accept his monthly salary was about $7,000 including overtime, meal and travel allowances. He was paid in cash and did not keep any record of the payment.
8. But for the accident, the Plaintiff would have continued to work as a plasterer and would now be earning at least $20,000 as at the time of assessment. This figure is consistent with the statistics. According to the Table issued by Construction Industry Union and the statistics complied by the Wages and Labour Costs Statistics Section, Census and Statistics Department, the daily pay of a plasterer from 1987 to 1997 was as follows :
Year Daily Wage
Monthly Wage
(26 days a month)a) 1987 270 7,020 b) 1988 320 8,320 c) 1989 370 9,620 d) 1990 420 10,920 e) 1991 470 12,220 f) 1992 520 13,520 g) 1993 570 14,820 h) 1994 620 16,120 i) 1995 660 17,160 j) 1996 (Dec) 806.8 20,977 k) 1997 (Jan) 829.8 21,575
The median of the Plaintiff's pre-trial loss of earnings is $13,500 per month i.e. (7,000 + 20,000) ÷ 2. The Plaintiff's pre-trial loss of earnings is $1,687,500 (13,500 x 125 months). Tax is irrelevant given the substantial allowances available to married persons.
Sub-contractor
9. It was argued by Mr Ozorio Q.C. on behalf of the Plaintiff that but for the accident, he would have commenced work as a sub-contractor by the age of about 35 and that he would have earned an extra $10,000 per month. A claim of $470,000 was made. I have no doubt that the Plaintiff was a hardworking person, but he might or might not become a sub-contractor in his trade. I really do not wish to go into speculations and I would decline to give an additional award for his earnings as a sub-contractor.
Loss of future earnings
10. The Plaintiff was born on 13th July 1958 and is 38 at the time of the assessment. The life expectancy of the Plaintiff is estimated at about 43 years from the time of the injury to the age of 71. In Chan Pui Ki v. Leung On Civ.App.No.263 of 1995, the Court of Appeal regarded 20 years as the maximum conventional multiplier. In the present case, I would adopt a multiplier of 12 for loss of future earnings.
Total loss of earning capacity
11. The Plaintiff suffers a total loss of his earning capacity due to :
a) poor walking stability and agility;
b) poor capability and endurance for standing;
c) slightly reduced endurance of continuous prolonged sitting; in fact, it is not suitable for him to sit too long for he is prone to pressure sores or other complications;
d) poor capability for lifting and carrying;
e) poor capability for pushing and pulling;
f) poor capability for stooping;
g) inability to crouch;
h) inability to climb a ladder;
i) reduction of efficiency of his manual skills if he was required to stand;
j) exposure to additional hazard when emergency exit may be life-saving;
k) difficulty working in an environment where there were architectural barriers;
l) difficulty with transportation;
m) occasional double incontinence which might cause great embarrassment and inconvenience;
n) frequent need to go to the toilet to empty his bladder.
12. It has been suggested by the experts that the Plaintiff might be able to take up some light sedentary work, for example, packer, assembler, cashier or telephone operator. The reality of the situation is that the Plaintiff had failed to obtain gainful employment since the accident despite his efforts. He had registered with the Selective Placement Unit of the Labour Department but was not employed by anyone. With the Plaintiff's conditions and his low educational background, the Plaintiff is not competitive at all in the labour market. In real terms, it is not likely that he will get any gainful employment in the future.
13. I am satisfied that, but for the accident, the Plaintiff would have continued to work as a plasterer and earned $20,000 a month at the time of the accident. His future loss of earnings is therefore $20,000 x 12 x 12 = $2,880,000.
Cost of future nursing and medical care
14. I will adopt a multiplier of 15 for future expenses since such expenses would have to be incurred beyond his retirement age.
15. It is clear from Dr Chung See Yuen's report that the Plaintiff is suffering from an adjustment disorder which includes the following symptoms :
a) depressed mood;
b) low self-esteem;
c) lack of interest in activities;
d) pessimistic feeling;
e) feelings of inability to cope.
16. I have no doubt that he will benefit from a course of individual psychotherapy to help him to deal with his emotional disturbances. In addition he and his wife should receive sex therapy to enable them to achieve better sexual functioning. The cost of the psychiatric treatment is $50,000 which consists of psychotherapy once every two weeks for ten sessions and sex therapy for ten sessions.
Occupational therapy
17. Occupational therapy is still required :
a) to improve the active control of his movements;
b) to maintain passive range of movement and to correct and prevent joint contracture of his lower limbs;
c) to provide training in all the activities of daily living;
d) to recommend home adaptation and rehabilitative equipment to improve his level of functioning and independence;
e) to educate his family members and the carers.
It is recommended by Ms Alice Tsang, occupational therapist, that the therapy would be three times a week for the first six months at $800 per session, thereafter once a week for the next six months and once every two weeks for the next six months. After the 18 months treatment, the therapy will take place once a month plus four extra sessions a year. The cost for the first 18 months would be as follows : $62,400, $20,800, $10,400 making a total of $93,600.
18. The cost for the subsequent treatments will be $12,800 x 15 = $192,000. The total cost is $285,600.
Physiotherapy
19. It is apparent from Ms Alice Tsang's and Mr David Siu's report, that the Plaintiff requires physiotherapy because :
a) he cannot sit for more than an hour without causing unbearable pain in his back;
b) muscles of his hips and knees require regular exercise to maintain the residual strength, especially when he gets older;
c) the muscles of his lower limbs should be further strengthened and his balance reaction should be improved to alleviate the extra burden exerted on his upper limbs;
d) the contracture of his Achilles' tendons requires treatment to prevent deterioration. Otherwise, his ability to walk would be interfered with and pressure sores might develop in his feet;
e) the passive range of motion of his limbs should be improved and maintained.
The cost of the treatment is three times a week for the first six months at $400 per session at $31,200, thereafter once a week for the next six months at $10,400 and thereafter once every two weeks for the next six months at $5,200. After the 18 months treatment, the therapy will take place once a month plus four extra sessions a year. The cost would be $6,400 x 15 = $96,000. The total cost would be $142,800.
Medical treatment, hospitalisation and nursing care
20. It is clear from Dr Yu and others' reports that the Plaintiff is prone to develop complications such as pressure sores and urinary tract infections. He has an unstable neurogenic bladder that empties poorly. He therefore needs regular check-up and supervision, especially as to his renal and urinary status.
21. Costs for medical treatment once every three months is at $600 per visit : $2,400 x 15 = $36,000. There should be annual check-up and treatment in case of complication at $4,000 per treatment. Costs is $4,000 x 15 = $60,000. I accept the Plaintiff's conditions are such that private treatment instead of treatment in public hospitals should be made available to him to avoid prolonged waiting and long queues at public hospitals.
22. I accept that nursing care is required when his mobility is reduced in the future. As nursing care would not be required immediately, I will use a multiplier of 7½. According to Ms Tsang, the cost of the nursing fee of $390 per hour and 30 sessions per year are required. The total costs would be $11,700 x 7½ = $87,750.
23. The total under this head is $183,750.
Full-time helper
24. After the accident the Plaintiff's wife and his father looked after the Plaintiff. They are now not able to take care of the Plaintiff particularly that the Plaintiff's father's health is deteriorating. The daughter who had at one time lived in China so that she might be taken care of by the grandparents had returned to Hong Kong which requires the attention of the wife. I am satisfied that a full-time helper is required to help the wife with the ordinary household chores and to accompany the Plaintiff when he goes out. Mr Ozorio informed the court that it would be more expensive to hire a part-time worker than a full-time domestic helper.
Full-time Filipino domestic helper
(HK$) (MULTIPLIER) (HK$) Initial handling cost by agency at $4,000 per contract 4,000 4,000 Basic monthly salary at $3,860 per month 46,320 x 15 = 694,800 Relief staff for home leave at $2,100 per year, based on 1 home leave of 2 weeks per 2 years, relief staff for 7 days @$300/full day 2,100 x 15 = 31,500 Traveling fee for home leave, based on 1 home leave per 2 years, @$1,500 750 x 15 = 11,250 Misc. costs incl. Insurance, renewal of contract & immigration, etc at about $3,500 per annum 3,500 x 15 = 52,500 $794,050
The total under this head is $794,050.
The total costs for future nursing, medical care and helper is $1,456,200.
Future transport cost
25. It is obvious that the Plaintiff has great difficulties using public transport and moving around in crowded places because of his disabilities. The Plaintiff had since the accident obtained a disabled driver licence. It was urged upon me that award should be given to the Plaintiff to purchase a car so that he could lead a more independent life. Although he had passed the driving licence test, the Plaintiff had not driven a car since the accident. I remain unconvinced about his ability to drive a car because of his disabilities, particularly in the congested traffic conditions of Hong Kong. I will, therefore, not make an award for the purchase of car for the Plaintiff but instead I will give an allowance for future transportation at $700 per week or $36,400 per year x 15 = $546,000.
Costs of special future needs and equipment
Lightweight wheelchair and accessories
26. A manual lightweight wheelchair should be provided for long distance travel because it is strenuous for the Plaintiff to walk on elbow crutches and with the ankle orthosis which have already caused extensive blisters on his palms and ankles.
27. I t is highly likely that the Plaintiff would be confined to wheelchair in the future. It is estimated that he would be wheelchair-bound by the age of 45.
1. Lightweight wheelchair with replacement every 6 years $13,500 x 2.5 = $33,750 2. Maintenance of wheelchair at 30% of costs $4,050 x 2.5 = $10,125 $43,875
28. An anti-decubitus mattress is necessary to prevent pressure sores upon prolonged sitting on a wheelchair or elsewhere.
Anti-decubitus cushion with replacement every 3 years $3,500 x 5 = $17,500
29. A wheelchair lap board is necessary for activity without necessarily approaching the need for an actual table.
Wheelchair lap board every 2 years $500 x 7.5 = $3,750
30. A wheelchair mitt is required to protect his hand while propelling the wheelchair.
Wheelchair mitt with replacement every 1 year $300 x 15 = $4,500 Total : $69,625
Mobility aids and equipment
31. The Plaintiff cannot walk without the aid of an elbow crutch and an ankle foot orthosis. In view of the allowance of the wheelchair, I will give an award of $5,000 under this head.
32. The Plaintiff needs a foot drop splint to position his ankles in a functional position when he is at rest.
Foot-drop Splint with replacement every 2 years $1,500 x 7.5 = $11,250
33. The heel protector is to prevent excessive pressure at his heels during sleep.
Heel protector $350 x 15 = $5,250
34. A light weight reacher is required for retrieval of light items out of his reach.
Light-weight reacher every 2 years $400 x 7.5 = $3,000
Total : $24,500
Adaptation of bathroom
35. A bath seat is required for stability and safety in bathing.
Bath Seat every 2 years $900 x 7.5 = $6,750
36. A bath trolley with tub and drain hose is required to assist the attendant and to maximise his safety and comfort.
1. Bath trolley with tub and drain hose with replacement every 5 years $30,000 x 3 = $90,000 2. Maintenance of bath trolley at 30% of cost $9,000 x 3 = $27,000 $117,000
Total : $123,750
Special bed and accessories
37. The Plaintiff will need a hospital type of bed with electronic control for easy adjustment for various heights and positions to allow for improved ease of caring. This would be necessary when the Plaintiff's physical deteriorates when he gets older and more dependent.
1. Hospital bed with electronic control for adjustment of positions with replacement every 5 years $35,000 x 3 = $105,000 2. Maintenance of special bed at 30% of cost $10,500 x 3 = $31,500 $136,500
38. An anti-decubitus mattress will be necessary to prevent pressure sores.
Anti-decubitus mattress with replacement every 4 years $3,300 x 3.75 = $12,375
Total : $148,875
Medical consummables
39. The Plaintiff is occasionally incontinent and will need diapers and PVC mattress cover for protection of his bed linen. He will also require laxatives and KY jelly for bowel movements. He needs antiseptic disinfectant to prevent infections caused by his incontinence. He needs skin ointment for his blisters on the palms and the ankles caused by the crutches and ankle foot orthosis. He will need Duoderm or other dressing because he will be prone to pressure sores.
1. 4 Adult diapers every day at @$4.60 $6,716 x 15 = $100,740 2. 2 PVC Mattress covers every year @$130 $260 x 15 = $3,9003 3. 3 bottles of laxatives (Metamucil or Senkot) every month at @$80 $2,880 x 15 = $43,200 4. 1 tube of KY Jelly every month at $20 each $240 x 15 = $3,600 5. Cost of Antiseptic disinfectant at $80 per month $960 x 15 = $14,400 6. 4 tubes of skin ointment per month at @$25 $1,200 x 15 = $18,000 7. Cost of Duoderm or other dressing for pressure sores every year $1,500 x 15 = $22,500 Total : $206,340
Non-medical equipment for comfort and quality of life
40. The Plaintiff should be provided with air conditioning and heater with remote control to maintain a constant room temperature for comfort and reduction in sweating in summer. This would reduce the occurrence of pressure sores. In winter, the Plaintiff cannot move around easily to keep warm and thus require a heater as well.
1. Air conditioning/heater with remote control with replacement every 5 years $4,500 x 3 = $13,500
2. Maintenance of air-conditioner at 30% of cost $1,350 x 3 = $4,050
$17,550
41. Because of his restricted mobility, the Plaintiff needs a telephone with wireless unit for communication with others as this may prove essential in a life-threatening emergency when the Plaintiff is alone.
Telephone with widens unit with replacement every 4 years $1,600 x 3.75 = $6,000 Total : $23,550
Social activities
42. I accept that it would be beneficial to the Plaintiff if he is given allowance for socialisation activities, especially with other handicapped persons. He should also be accompanied by his attendant when he goes out to these activities. The Plaintiff has taken part and wishes to continue to take part in events organised by disabled societies and intends to participate in wheelchair basketball in future. He would also like to pursue further education in future.
Allowance of socialisation activities estimated at $3,000 per year $3,000 x 15 = $45,000
Total : $45,000
Total for costs of special future needs and equipment : $641,640.
Future recurring miscellaneous costs
43. Because of the Plaintiff's propensity to have pressure sores or other illnesses and the fact that he spends most of his time at home, he will incur extra costs for electricity for the air-conditioning and heater.
Additional electricity expenses for extra use of air-conditioning
and heater$4,800 x 15 = $72,000
44. His incontinence also causes extra costs of washing powder and toilet rolls.
1. Extra costs of washing powder $480 x 15 = $7,200 2. Costs of extra toilet rolls and tissues $528 x 15 = $7,920 $15,120 Total : $87,120
Alternative accommodation
45. The Plaintiff is now living with his father in a flat at 7/F, Front Portion, 227 Wing Ming Mansion, Lai Chi Kok Road, Kowloon, which is owned by his father. Prior to the accident, he paid his father $1,000 per month as rental. He cannot afford to pay him now.
46. The Plaintiff's present accommodation is inadequate and unsuitable for the following reasons :
a) the flat was built 30 years ago and is not in very good condition;
b) there is only one tiny lift. Although it is quite reliable, it does not operate from time to time;
c) the flat is too small. It is about 400 square feet and has been partitioned into three bedrooms, a living room, kitchen and bathroom. The Plaintiff sleeps alone in a bedroom of about 70 sq ft, his wife sleeps with his daughter, and his father sleeps in another room.
d) The Plaintiff has to be extremely careful when he moves around with his pair of crutches because the living room is very narrow.
e) He may fall and hurt himself. He therefore usually remains seated in the sofa most of the time. It is very uncomfortable for him to have to sit on the sofa all the time because it is facing a wall which is only a few feet away and he has pain when he sits for a long time.
f) The ventilation is very poor because there is no window in the room. He cannot afford an air-conditioner.
g) He finds it very dull and boring to stay at home. There is not much in the way of facilities in his neighbourhood. There is only a park nearby. However, he is afraid to go out during the day. He requires a safer neighbourhood.
h) He spends most of his time watching TV at home. It is put on the left side of the sofa because there is not sufficient space to place it elsewhere. He gets tired easily when he has to turn his head to the left to watch TV.
i) His bedroom is extremely small. The closet has occupied much of the space and it is very inconvenient for him to move around in the bedroom.
j) The washroom is not large enough for him to manoeuvre. The washing machine has taken up most of the space. The floor is very slippery and he has to be extremely careful when he uses the washroom. It is difficult for him to take a shower in such a small space.
47. Ms Alice Tsang suggested that a flat of 80.5m2 (or 866.18ft2) would be sufficient to accommodate the Plaintiff, his wife and his daughter whereas Mr Joseph Kwan suggested 53.5m2 (or 575.66 ft2) and Mr Andrew Kwok suggested 55.76m2 (or 600 ft2).
48. I accept the recommendations made by Ms Alice Tsang because she has taken into account the additional space required for the attendant. In addition, it might not be convenient for the Plaintiff to sleep with his wife in the same bed because of his occasional spasms. It is plainly not desirable for the daughter and the father to share the same room. Moreover, an exclusive toilet for the Plaintiff is required because the Plaintiff would need one hour to sit on the toilet and a lot of time to shower and it would be inconvenient for others to wait.
49. An alternative accommodation in Whampoa Garden has been suggested. I am satisfied that with its recreational facilitates, this is a suitable alternative accommodation for the Plaintiff. I have discussed the costs of alternative accommodation in Ng Kwok Wing. But in this case I would adopt the previous decisions of Leung Sai Kui and Li Tin Yau in which the court allowed the difference in the rental of the two accommodations. In this case, the Plaintiff stated that he would eventually purchase their own property and would pay about $3,000 by way of mortgage repayment. I would adopt the $3,000 as the notional rental which has to be deducted from the current rental of a 860 sq ft flat in Whampoa Garden. The rental is about $25,900 per month. The amount recoverable is ($25,980 - $3,000) x 12 x 15 = $4,136,400.
50. The management fees for the new accommodation is at $760 per month or $9,120 per annum. The amount recoverable would be $9,120 x 15 = $136,800.
51. The rates would be 5.5% of the rental or $17,147 per year. The amount recoverable would be $17,147 x 15 = $257,205.
52. The Plaintiff is seeking expenses relating to removal costs, legal costs for the signing of the tenancy agreement, agency fees at half of the one month's rental and stamp duty. The amount claimed by the Plaintiff after the adjustments on the multiplier is $153,975. This is based on such expenses being incurred every two years. It is speculative to say that the Plaintiff may be required to move his home once every two years when the tenancy agreement expires. I will instead give a lump sum award of $40,000 to cover such expenses.
53. The total under this head is $4,570,405.
Extra costs of holiday
54. Prior to the accident, the Plaintiff visited his mother and sisters in China and Macau two to three times a month. Since the accident, the Plaintiff has not been able to do so. In Choi Mei Ho and in Ng Kwok Wing, it was held that the costs of the Plaintiff taking holiday was not recoverable but the additional costs of hiring a helper during the holiday was a recognised head of damage. I am satisfied that the Plaintiff should take holidays to see his family members. This will reduce his anxieties and frustration. He will need a helper during the visit. As expenses for a full-time domestic helper had already been awarded, I would give an award of $50,000 in relation to extra expenses to be incurred by the helper during the Plaintiff's visits to his family members.
Fund management
55. The Plaintiff has a very low education level. He has no specific plans for investment of any damages he receives and he has no proper knowledge of financial investment. He requires the professional help of a fund manager in this regard.
56. The Court of Appeal in Chan Pui Ki allowed a sum in relation to expenses incurred in the investment of the award in order to achieve the desired return. The amount that was awarded was about 10% of the loss of the future earnings of the Plaintiff. A similar award was made in Choi Mei Ho. I will likewise adopt a 10% for fund management fees in respect of the loss of future earnings of the Plaintiff. Notwithstanding the arguments of Mr Ozorio, I will confine the award of the 10% to this particular item in accordance with the judgment of Chan Pui Ki. The sum recoverable is $288,000.
Special damages
Medical expenses incurred from day of accident to date
57. I am satisfied that the sum of $176,311 was incurred by the Plaintiff by way of medical expenses.
MEDICAL EXPENSES
(HK$)
1.
37,028 St. Paul's Hospital Operation and Treatment by Dr. Harry Fang 2.
5,550 St. Paul's Hospital for follow-up treatment ($370 x 15) 3.
12,430 Miscellaneous Medical Expenses 4.
8,203 Treatment in China 5.
2,600 Chinese Medicine 6.
100,500 Medical Consummables (eg diapers, laxatives, dressing etc) at $1,000 each month for 100.5 months 7.
10,000 Medical equipment (eg crutches, foot splint, etc)
Transport costs
58. During the Plaintiff's stay in the hospital, the Plaintiff's wife and father regularly visited him and brought him food and soup nearly every day. The Plaintiff also incurred traveling expenses when he went for out-patient follow-up treatment. He had no choice but to take a taxi on these occasions as it was dangerous and difficult for him to take public transportation save the MTR when it is not crowded. The total amount is $18,610. This amount is recoverable.
(HK$) A. Plaintiff's (27 months in hospital) 200 1. To and from Queen Elizabeth Hospital 310 2. To and from St. Paul's Hospital 2,600 3. To and from Maclehose Medical Rehabilitation Centre 2,100 4. To and from China B. Family 1. To and from Queen Elizabeth Hospital ($29 x 19 days) 380 2. To and from St. Paul's Hospital ($20 x 21 days) 420 3. To and from Maclehose Medical Rehabilitation Centre ($30 x 14 months) Daily 12,600 Total: 18,610
Tonic food
59. I am satisfied that the sum of $10,000 had been reasonably incurred by the Plaintiff in respect of tonic food.
Care and attention
60. As at the time of accident, the Plaintiff's wife was working as a sewing worker earning about $3,620 per month. In 1987, the Plaintiff's father was working for the Owners' Incorporation of Wah Yick Mansion earning about $1,000 a month. As a result of the Plaintiff's accident, the Plaintiff's wife did not work for six weeks, from 22nd January 1987 to 3rd March 1987, in order to take care of the Plaintiff. In addition, the Plaintiff's father, Mr Lai Yeung, resigned from his work to take care of the Plaintiff from January 1987. After the Plaintiff's discharge from the hospital in April 1989, he was taken care of by his father and wife. From September 1994 onwards, the Plaintiff's wife gave up her job and spent all her time caring for the Plaintiff, their daughter who returned to Hong Kong in September 1994 and the Plaintiff's father.
61. I am satisfied that the Plaintiff is entitled to recover damages in respect of the service voluntarily rendered by his father and his wife. These services were necessitated by the 3rd Defendant's negligence. The total amount recoverable is $396,281.
(HK$) 1. From January 1987 to March 1987 (ie 6 weeks) of the Wife at $3,620 per month 6,281 2. From discharge from hospital, ie May 1989 to August 1994 of the Father and Wife at median of $3,000 per month 189,000 3. From September 1994 to June 1997 of the Wife at a median of $6,000 per month 201,000 Total: 396,281
Conclusion
62. The damage assessed is $14,308,067 and there shall be judgment for the Plaintiff accordingly.
SUMMARY
(HK$) 1. Pain, suffering and loss of amenities 1,500,000 2. Past loss of earnings 1,687,500 3. Future loss of earnings 2,880,000 4. Cost of future nursing, medical care and helper 1,456,200 5. Future transport costs 546,000 6. Costs of special future needs and equipment 641,640 7. Future recurring miscellaneous costs 87,120 8. Removal, adaptation & accommodation expenses 4,570,405 9. Extra costs of holidays 50,000 10. Fund management fees on future earning 288,000 11. Past medical expenses incurred from accident to date 176,311 12. Past transport costs 18,610 13. Tonic food 10,000 14. Voluntary care and attention 396,281 14,308,067
63. In addition the Plaintiff is entitled to interest on the past pecuniary losses, namely the past loss of earnings, past medical expenses, past transport costs, tonic food, voluntary care and attention at 5.75% per annum from date of accident to the date of the judgment on damage. Interest on PSLA is 2% p.a. from date of writ to judgment. The Plaintiff is also entitled to the costs nisi of the assessment together with certificate for two counsel.
| (P. Cheung) Judge of the High Court |
Representation:
Mr Michael Ozorio, S.C., and Mr Victor Gidwani, inst'd by M/s Hoosenally & Neo, for the Plaintiff.
3rd Defendant, absent