LILY TSE LAI YIN AND OTHERS v. THE INCORPORATED OWNERS OF ALBERT HOUSE AND OTHERS

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 6TH PLAINTIFF

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1. This is the assessment of damages in respect of the 6th plaintiff in the Aberdeen canopy collapse at Albert House on 1 August 1994. Liability has already been determined against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.

2. The 6th plaintiff was at the time of this accident, a baby girl two and a half months old, and at the time of the trial, seven. At the time of the accident, she was strapped across the chest of her mother, the 3rd plaintiff in this case, being carried by her in that manner and was also together with her elder sister, the 9th plaintiff in this case. All three of them were leaving the New Best Restaurant when the concrete canopy collapsed onto them without any warning. They were buried under the rubble with the mother pinned down lying over the 6th plaintiff and covering the baby's head with her right hand.

INJURIES AND TREATMENT

3. By the time the 6th plaintiff was pulled out of the debris by rescuers, she had turned a dusky colour and needed resuscitation. She was massaged by the ambulance crew even when in the ambulance on her way to the hospital and given oxygen. She was taken first to the Accident and Emergency Department of the Queen Mary Hospital and then admitted to the Intensive Care Ward. The hospital reports record the following injuries :-

(i) Mild tachypnea with insucking chest and decreased air entry over the right chest;

(ii) Soft abdomen with Petechiae;

(iii) CT scan showed external hydrocephalus;

(iv) Asphyxia;

(v) Traumatic cyanosis;

(vi) Bruises and abrasions over her lower body;

(vii) Acidotic breathing;

(viii) Irritation and jerkiness; and

(ix) Unsustained clonus in her tendons.

4. The doctors diagnosed the 6th plaintiff as displaying symptoms compatible with acute suffocation with cerebral irritation. She was given anti-epileptic prophylactics until 8 August 1994 and was discharged from hospital on 11 August 1994, 10 days after the accident.

5. The 6th plaintiff attended for follow up treatment on 23 August 1994 when she was three months old. She could hold her head up momentarily but was late for her "rolling over" development milestone.

PAEDIATRIC ASSESSMENT

6. Dr Lillian Ko, consultant paediatrician, examined the 6th plaintiff on various occasions. In her first report dated 14 July 1995, Dr Ko concluded that the 6th plaintiff, then 14 months old, had suffered traumatic cyanosis from acute suffocation. This resulted in hypoxic brain irritation, external hydrocephalus and anaemia but appeared to have resulted in no discernible neurological sequelae to her normal development. Dr Ko recommended close monitoring and formal assessment of intellectual function at age three.

7. In her report dated 7 February 1998 Dr Ko advised that the performance of the 6th plaintiff was normal but annual follow ups were necessary. In her third report dated 30 April 2000 Dr Ko advised that the 6th plaintiff had suffered visual dysfunction in that she had inadequate bi-nocular co-operation, excessive esophoria and convergence and accommodation problem. The 6th plaintiff had a high average IQ of 110 but uneven scores. She was timid, passive but also had a sticky personality with problems in temper control. Her emotional growth was affected by the Post Traumatic Stress Disorder (PTSD) suffered by her mother and older sister and the family was overprotective of her cognitive defect.

8. In a letter dated 22 April 2001 Dr Ko advises that based on her pre-accident IQ the 6th plaintiff had a more than 50% chance of completing Form 5, passing Form 5, being accepted into Form 6, passing Form 6, Form 7 as well as her Advanced Level Examinations, attending a tertiary institution or university and obtaining a degree. However Dr Ko advises that as a result of the accident the 6th plaintiff's poor memory and visual function and poor temper control are all such that she will probably not be able to complete Form 5.

VISION ASSESSMENT

9. Dr Ko Sai Cheong, a behavioural optometrist, states in his report dated 1 May 2000 that the 6th plaintiff has a visual dysfunction arising from disruption to her visual development caused by the accident. A major accident causing acute suffocation, hypoxia brain damage and external hydrocephalus would all affect visual development. Vision is a function of the brain and the visual cortex directs both eyes to cooperate and work as a team collecting information and then sending it to the thinking part of the brain for interpretation and understanding.

10. Dr Ko found that the 6th plaintiff had inadequate binocular cooperation i.e. her eyes do not work efficiently as a team. She also had a tendency to over-cross her eyes and had poor accommodation function, accommodative infelicity and insufficiency. He recommended vision therapy for the dysfunction in his report dated 18 May 2000. The therapy recommended was for Visual Perceptual Motor Integration Therapy and would include therapy, monitoring and optometric assessments costing $79,700.

PSYCHOLOGICAL ASSESSMENT

11. Because of her problems controlling her temper, Dr Lillian Ko referred the 6th plaintiff to a clinical psychologist, Mrs Hannah Chung who examined the 6th plaintiff on 16 March 2000 and 27 February 2001. In her first report Mrs Chung states that although the 6th plaintiff had a high average IQ, the widespread interest scores indicated that the 6th plaintiff could be very superior in one aspect of her intellectual functioning and yet below average in other respects. She was below average in general knowledge, arithmetic and logical reasoning. The uneven profile could be due to her young age and her emotional growth and development could have been negatived by the family problem.

12. In subsequent reports Mrs Chung states that given the 6th plaintiff's overall IQ of 110, her general memory function was significantly lower than that which could properly be expected for a child of her age and cognitive level and abilities. The Children Memory Scale (CMS) test carried out on the 6th plaintiff also revealed generalised memory impairment

13. Moreover, the 6th plaintiff has an unexpected low ability to process, organise, hold, sort and retrieve verbal material. In short, she has learning difficulties but superior attention and concentration. Her concentration and processing speeds are in fact described as excellent.

14. Mrs Chung concludes that the most likely cause of the 6th plaintiff's memory deficits is the hypoxic brain damage she had suffered as a result of being buried in the canopy collapse. Mrs Chung opines that but for the accident, the 6th plaintiff had more than a 50% chance of completing Form 7, passing her A-levels and obtaining a degree after university education. However, taking into account her permanent disabilities (i.e. low average memory and frontal lobe abnormalities) she now has less than a 50% chance of reaching Form 6 or going to university. The employment or careers open to her now are low level sales and clerical such as store attendant or receptionist whereas but for the accident she could have had jobs that required above average education such as nursing, managerial or administrative work.

PET SCAN

15. A PET Scan was performed on the 6th plaintiff on 7 February 2001. Mr David Yeung, the Consultant in Nuclear Medicine, advises that "there is mild asymmetrical loss of metabolism of the left superior frontal gyrus ... and left middle gyrus ... than that of the right side. Although the change is within normal functional variation, an associated decrease of metabolism of the contralateral cerebellum diaschisis, and the asymmetric difference is genuine .... which would correlate with her less adapt left brain logical function as found in her psychological testing.".

16. Mr Yeung further states that "there is a slight decrease in right mesiotemporal hippocampal metabolism, which may be associated with some subtle memory dysfunction. The hippocampus is one of the area of the brain most vulnerable to anoxia, stress and hypoglycaemic injury.".

NEUROLOGICAL ASSESSMENT

17. Dr Huang Chen Ya, consultant neurologist, carried out a neurological examination of the 6th plaintiff on 5 January 2001 and called for detailed memory tests to detect hippocampal damage.

18. As a result the CMS test was administered by Mrs Hannah Chung revealing deficit in general memory function. The CMS confirmed hippocampal damage.

19. Dr Huang states that the PET scan results are consistent with the 6th plaintiff having suffered brain damage from hypoxia during the accident with resultant memory impairment. In his report of 19 January 2001, Dr Huang advises that the 6th plaintiff's visual dysfunction was a likely result of the hypoxic episode suffered in the accident. He supported the need for therapy for the visual dysfunction.

20. Dr Huang predicts that the 6th plaintiff's school work will deteriorate as and when more memory work was required of her and she will have greater difficulty in coping as she progresses through school. Dr Huang recommends Specific Alternative Learning Strategy Training so that the education and future employment difficulties of the 6th plaintiff might be reduced.

21. Both Mrs Chung and Dr Ko have also recommended Alternative Training Strategies for the 6th plaintiff.

PAIN SUFFERING AND LOSS OF AMENITIES

22. The opinions of the medical and non medical experts referred to above have not been challenged by the 2nd and 5th defendants. I accept the opinions as express and stated above. I take the view that it would not be in the interests of any concerned parties that the matter should be delayed further for a final assessment but that I should pronounce a final assessment on the available evidence before me at this stage.

23. The injuries and disabilities to the 6th plaintiff are somewhat unique in its own context and I appreciate that there are no direct authorities which may lend ready assistance to quantifying an award under this head. Nevertheless the following local awards have been referred to me :-

(a) Renny Cho Kwok Hung v. Fusilier Donald Evans [1981] HKLJ 262 where MacDougall J awarded $150,000 inclusive of loss of earnings capacity in 1980 to an eight-year old boy who suffered multiple injuries including brain stem injury. There the plaintiff was unconscious for 2 weeks, unable to speak for 6 weeks and unable to walk for 7 weeks, suffered intellectual impairment which most probably deprived him of a professional career dependent on a university education.

(b) Law Yuen Wan v. Tai Kan On [1984] HKLJ 259 where $120,000 was awarded in 1983 to a four and a half years old girl who sustained head injuries which resulted in poor memory, headaches and cognitive difficulties, poor school work, behavioural changes and a small chance of epileptic attack in future.

(c) Lo Cheuk Hung v. Lo Wing Shun [1985] HKLJ 238 where $100,000 was awarded to a 31 year-old plaintiff who had suffered multiple and head injury resulting in brain damage with significant loss of intellectual functioning. The $100,000 included loss of earnings capacity.

(d) Liu Suet Un v. Yu Man Fai [1987] 2 HKC 509 where a six year-old girl sustained severe head injury and underwent a craniotomy due to a contusion of the brain resulting in serious permanent disability with significant cognitive impairment and personality changes. Her schoolwork suffered and her future employment prospects were bleak. She was awarded $96,000 for PSLA.

(e) Tang Shui Kit v. Lam Po [1985] HKCLG 36 where a seven year-old boy sustained head injury and a fractured leg. He was unconscious for 10 hours and the head injury caused learning disabilities due to intellectual deficiencies resulting in diminished employment prospects. An award of $90,000 was made for PSLA.

(f) Ho Wing Yan v. Ho Sau Ling Fanny [1994] HKLJ 142 PSLA of $300,000 was awarded to a four months old baby who sustained serious head injuries and was unconscious for half an hour. She underwent three neurosurgical operations. She suffered from frequent vomiting, weakness of lower limbs, irritability, tended to self destruct, was hyperactive, had a short attention span and would have significant intellectual and behavioural impairment for the rest of her life.

(g) Lau Ka Po v. Man Cheuk Ming [1997] HKLRD 40 where Cheung J awarded $700,000 to an 11 year-old boy who sustained a mild brain oedema and a fractured right fibula. The brain injury was at the moderate to serious level with a substantial drop in IQ level and some personality changes. There was post traumatic amnesia and the risk of increased epileptic attacks and cognitive impairment.

Using the above awards as no more than a guide, and taking into account all the medical evidence in the present case, I am of the view that the injury suffered by the 6th plaintiff would properly fall into the upper end of the Serious Injury category as it is understood in Lee Ting Lam's case. In all the circumstances, an award of $600,000 would be reasonable compensation under this head of damage.

SPECIAL DAMAGES

24. The 6th plaintiff claims medical expenses in the amount of $32,900 and the cost of travelling expenses to and from the medical consultations in the sum of $2,065. These amounts have not been disputed by the 2nd and 5th defendants. The medical expenses are supported by receipts and are reasonable considering the injuries suffered by the 6th plaintiff. Both these amounts will be allowed in full.

25. There is also a claim for the cost of tonic food in the sum of $6,375. This amount was spent for the purchase of birds nest, cod liver pills, chicken broth and Chinese medicine for the 6th plaintiff. Although not supported by documentary receipts, the amount appears reasonable bearing in mind that the accident happened six years ago. This amount will be allowed in full.

26. The 6th plaintiff also claims $200 for damaged clothing. This amount has not been disputed and will be allowed.

27. There is also a claim for loss of earnings in respect of the father of the 6th plaintiff. The evidence shows that he took five months off from his work as a fisherman to take care of his family consisting of his wife (the 3rd plaintiff herein) and his two daughters being the 6th and the 9th plaintiffs herein. That claim, however, has been included and dealt with under the assessment in respect of the 3rd plaintiff. It will therefore not be allowed under this assessment to avoid there being a duplicity of claim.

28. The total amount of special damages therefore comes to $41,540.

FUTURE LOSSES

A. Future loss of Earnings/Earnings Capacity

29. Firstly there is a claim for future loss of earnings. The 6th plaintiff is at present only seven years old. It will be a long time before she is even of age to be in gainful employment. Obviously there is no clear indication at present as to what job the 6th plaintiff will eventually be engaged in let alone the salary she will be earning although she says she would like to be either a teacher or a nurse. There are therefore obvious difficulties in assessing future loss of earnings. One way of overcoming such difficulties is to award a lump sum payment for loss of future earnings, however, I have been referred to a number of authorities by counsel for the 6th plaintiff and having considered these authorities I am of the view that the multiplier/multiplicand approach is the correct approach to be adopted.

30. The submission by counsel for the 6th plaintiff runs along similar line as those proffered for the 4th plaintiff. Briefly that is as follows. There is the undisputed advice of the clinical psychologist, Mrs Hannah Chung, that the 6th plaintiff, being in the top 85 percentile before the accident, had more than 50% chance of obtaining a degree after completing tertiary or university education, but as a result of the accident, the 6th plaintiff has now less than a 50% chance of passing the From 5 government examinations and would have no chance of obtaining a tertiary degree. Mrs Chung further advises that the 6th plaintiff may try jobs in sales, in the service industry or unskilled jobs that do not require writing skills.

31. The multiplicand therefore should be the differential between the average career income that the university graduate could expect to receive and that of a person with only Form 3 or Form 5 qualifications could earn.

32. A great amount of evidence in the form of statistics has been put before me to show that the average income of a degree holder in the Civil Service to be in the region of $47,500 which is the average worked out from these statistics. The same statistics also show that the salary for those grades in the Civil Service upon completion of Form 5 generally range from $9,180 (MPS-2) to $22,075 (MPS-17) with some notable exceptions which can be ignored for present purposes.

33. The 6th plaintiff further suggested an alternative approach which is to calculate the loss chance of the 6th plaintiff to have qualified as a professional by reference to the differential between the relevant starting salaries in the Civil Service as recently adjusted. From those statistics the differential has been worked out to be about $20,000

34. Insofar as the multiplier is concerned, taking into account the 4th plaintiff is now seven years old, it has been suggested that a multiplier of 10 (rather than the conventional maximum multiplier) would appropriately cater to the fact that it would be many more years before the 6th plaintiff will commence her working life and would also take into account the discount for accelerated payment. It was further suggested that a further discount of 30% would not be unreasonable to reflect the uncertainties which may arise between now and the time when the 6th plaintiff begins her working life. Using that formula, based on the alternative approach, counsel for the 6th plaintiff calculates the loss of earnings capacity to be $1,680,000. A further sum of $84,000 which is 5% of the total loss of earnings capacity is to reflect loss of Mandatory Provident Fund. The total amount this comes to is $1,764,000.

35. The 2nd and 5th defendants, whilst disputing the initial approach adopted by the 6th plaintiff in assessing loss of earnings capacity, nevertheless concede that a sum of $1,760,000 would be reasonable to reflect the loss of earnings capacity and the loss of Mandatory Provident Fund in respect of the 6th plaintiff.

36. In all the circumstances of this case, in particular the concession made by the 2nd and the 5th defendants, I am prepared to adopt the alternative approach as suggested by the 6th plaintiff and to assess the loss of earnings capacity as well as the loss of Mandatory Provident Fund in the sum of $1,764,000.

B. Future Vision Training

37. Dr Ko Sai Cheong has advised that the 6th plaintiff suffers from accommodative infelicity and insufficiency which means that her eyes do not work efficiently as a team. He has recommended a vision training programme including a personalised course visual perceptual, motor integration estimated to cost $79,700. Neither this recommendation of Dr Ko nor the amount of the estimated costs have been disputed or challenged by the defendants. I accept that the recommended programme would likely contribute towards the recovery of the 6th plaintiff's visual dysfunction and would assist in improving the learning ability. In the circumstances, the estimated amount not being unreasonable, will be recoverable by the 6th plaintiff in full.

C. Alternative Learning Strategy Training

38. The 6th plaintiff further claims and amount of $402,200 as a reasonable compensation for Alternative Learning Strategy Training which is advised by both Mrs Chung, the clinical psychologist, as well as Dr Lillian Ko, the consultant paediatrician.

39. Mrs Chung advises that the 6th plaintiff needs learning remediation and training. In her recommendation Mrs Chung provides for 12 years of training which would take the 6th plaintiff to the age of 19. The total amount pursuant to Mrs Chung's recommendation is between $182,400 and $364,800 and that this training is to be provided by the Potential Development Association.

40. Dr Ko, after confirming the brain damage to the 6th plaintiff, advises that she requires Alternative Training Strategy for the difficulties associated with the brain damage. The cost of such a programme as recommended by Dr Ko cost between $720,000 and $1,440,000. Dr Ko's recommendation is that this training can be obtained through the Educational Psychologist and the Hong Kong Child Development Centre.

41. The main difference in price range appears to be that pursuant to Mrs Chung's recommendation such training would be provided by an occupational therapist whereas on the recommendation of Dr Ko that training would be provided by an educational psychologist.

42. Noting the difference in price range between the recommendations from Mrs Chung and from Dr Ko, the 6th plaintiff claims only for the amount of $402,200 which is based on discounted version of the lower figure supplied by Dr Ko rather than those quoted by Mrs Chung. This takes into account not only accelerated payment but also the fact that the 6th plaintiff will probably require less sessions as she gets older.

43. The 2nd and 5th defendants have indicated that they accept the amount of $402,200 as being reasonable under this head of damage. Under those circumstances the sum of $402,200 will be awarded under this head.

D. Private Tutor

44. The 6th plaintiff also claims for future cost of a private tutor. In the light of her resultant disabilities which has greatly affected her schoolwork this would not be unreasonable. Indeed the defendants have accepted that it is reasonable and has conceded a sum of $48,000 which is based on five years of private tutoring at $800 per month. This appears reasonable and will be assessed at $48,000.

INTERESTS

45. Interest would be awarded in general damages for pain suffering and loss of amenities at the rate of 2% per annum from the date of Writ. Interest on all special damages pre trial will be awarded and half judgment rate from the date of the accident.

SUMMARY OF ASSESSMENT

		$
PSLA		600,000
Special Damages (Pre-trial)		41,540
Future Loss of Earnings Capacity		1,764,000
Future Vision Training		79,700
Alternative Learning Strategy Training		402,200
Private Tutor		48,000
	Sub-total:	2,935,440
Interests on PSLA		48,000
Interests on Special Damages		17,447
	Total:	3,000,887

The 6th plaintiff's damages is accordingly assessed at $3,000,887.

46. There will be a cost order nisi that the defendants do bear the costs of this assessment to be taxed on common fund basis if not agreed with certificate for two counsel. The 6th plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Ozorio, SC, leading Ms Corinne Remedios instructed by Messrs Wilkinson & Grist, for the 6th Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 1ST PLAINTIFF

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1. The 1st plaintiff, now aged 44, claims damages for the injuries that she suffered on 1 August 1994 when the canopy at Albert House in Aberdeen collapsed, she being one of the victims of that canopy collapse. Liability in this case has already been determined in favour of all the plaintiffs against all the defendants. This is now the assessment of damages in relation to the 1st plaintiff.

2. At the hearing of the assessment, only the 2nd and 5th defendants took part appearing by counsel. The other defendants did not appear either in person or by counsel.

3. At the time of the accident, the 1st plaintiff, then aged 37, was walking along the pavement underneath the canopy together with her three-year-old son. When she heard the initial sound of the collapse above her, she tried to run with her son to avoid the collapse. When she could not, she instinctively pushed her son towards the U2 shop, which is a shop situated on the ground floor of Albert House underneath the collapsed canopy.

4. The 1st plaintiff succeeded in pushing her son into the U2 shop. However she herself was not so fortunate as she was pinned down by a large slap of concrete which fell on her back. After the slab of concrete fell on her, the 1st plaintiff had the upper part of her body lying face down just inside the entrance of the U2 shop with her lower body lying on the steps of the shop just at its entrance and the slab of concrete lying on top of her back.

5. Subsequently, the 1st plaintiff was extricated from the debris and placed inside the middle of the U2 shop before she was taken to hospital by ambulance. Before arrival at the hospital, the 1st plaintiff wandered in and out of consciousness feeling pain in her spine.

INJURIES IN TREATMENT

6. As a result of the accident, the 1st plaintiff suffered very serious injuries to her head and lower back. She had lost consciousness at the time of the accident but when admitted to the Accident and Emergency Department of the Queen Mary Hospital, she was noted to be conscious and alert.

7. After admission into Queen Mary Hospital, she was diagnosed to have suffered a fractured dislocation of the thoracolumbar junction of her spine or T12/L1 leading to complete paraplegia. She was also found to have complete sensory loss of both lower limbs up to the L1 to L2 dermatone.

8. On 5 August 1994, the 1st plaintiff had an operation to decompress and stabilise her spine by screw fixation. After the operation, the 1st plaintiff remained completely paraplegic. She was given bed mobilisation and wheelchair training. She was transferred to the MacLehose Medical Rehabilitation Center ("MMRC") from 22 August until her discharge in late January 1995. She attended regular follow-up sessions at the Duchess of Kent Children's Hospital from 8 October 1995 to 5 August 1998.

9. For four months after discharge from hospital, a bonesetter came to the 1st plaintiff's home to massage her. She further attended the Jockey Club Clinic at Sai Ying Pun for urological and gastro enterological re-examinations. There were two to three episodes of urinary infections in 1995 and 1996 which required the 1st plaintiff to be readmitted to the Queen Mary Hospital for treatment.

10. From January 1996 until July 1997 and also from October 1998 up to present, the 1st plaintiff had received occupational therapy from a Mr Wong Pui Kau of the Spastics Association of Hong Kong. The 1st plaintiff was admitted to the MMRC as a day patient from July to December 1997 and was trained in the use of a walking frame called a Reciprocal Gait Orthosis ("RGO").

11. This injury has left her paraplegic from the waist down. It is common ground that the 1st plaintiff has been wheelchair-bound since the accident and will be wheelchair-bound for the rest of her life. She has also suffered psychiatric and psychological disabilities as a result of the accident.

ORTHOPAEDIC AND NEUROLOGICAL ASSESSMENT

12. The 1st plaintiff no longer has any sensation over her lower body and cannot move her lower body. She suffered some pressure sores on her hip in about December 1994 when she was at the MMRC. This has healed. She now has itchy red patches around her knees from time to time.

13. She has developed back pain which radiates down to her legs. She feels numbness in her thighs. She wakes up in the middle of the night three to four times. She also has frequent headaches sometimes associated with dizziness. She takes painkillers, sometimes as often as three times a day but they do not always help. She gets tired easily.

14. Her condition has deteriorated over the years. She gets colds and coughs more easily. She seeks medical treatment from a general practitioner on average four to five times a year at a cost of $200 per visit.

UROLOGICAL ASSESSMENT

15. The 1st plaintiff no longer has voluntary control over urination and bowel movements. She uses suppositories as she has developed haemorrhoids which continue to be a problem. She also has to wear a napkin.

16. The 1st plaintiff had two to three episodes of urinary infections in 1995 and 1996 and was admitted to Queen Mary Hospital for treatment. She had a further one to two infections in about 1998. Now she self-catheterizes five to six times a day, each time taking an hour or so. As there is only one toilet in the flat where she lives with her family, this becomes an inconvenience to the rest of the family.

17. In the last one or two years, her urinary problem has deteriorated. The 1st plaintiff has also noticed that she leaks urine more frequently between catheterisations without being aware of it. If this happens in the middle of the night, she will wet the bed and disturb her husband. She therefore has to change diapers more frequently.

18. Quite apart from the embarrassment to the 1st plaintiff, she now has to carry all the paraphernalia for changing the catheter whenever she goes out. This includes diapers, catheters, jelly, cotton wool, saline solution, tissue, hand mirror, dirty paper bag, baby powder etc.

19. The 1st plaintiff has also been diagnosed as having a small bladder syndrome. She is willing to undergo the surgery recommended by Dr George Koo to rectify the small bladder syndrome. Moreover, when she has the sense of fullness of the bladder indicating that she needs to urinate but cannot, it causes her to have spasms of both legs. To stop the spasms, she needs to massage her legs by placing one leg on the knee of the other. If she is in public, this causes further embarrassment.

PSYCHIATRIC ASSESSMENT

20. The 1st plaintiff was examined by Dr Singer, a psychiatrist, in August 1998, March 2000 and January 2001. In his first report, Dr Singer stated that the 1st plaintiff's previous personality was that of a cheerful, energetic, hard-working, sociable woman who enjoyed travel, badminton, cycling and socialising. After the accident, she experienced great fear that she would not be able to carry on her role as mother and wife, that she would become useless and unable to do anything at home. She became very depressed, cried daily and had thoughts of suicide. Her depressive mood had persisted though it has improved slightly in the last two years which she attributes to participation in social activities for the disabled.

21. Dr Singer found the 1st plaintiff to be depressed, tearful times, however she puts on a brave front as shown by her attempts to be polite and cheerful. His opinion was that she suffered a psychiatric disability in the form of a Depressive Disorder which was moderate in degree and was a psychological reaction to the physical, psychological and social aftermath of the accident. The 1st plaintiff also had mild features of Post Cocussional Syndrome as shown by her dizziness, irritability and impaired concentration. The prognosis of the Depressive Disorder was not good and was likely to be persistent. She was vulnerable to episodes of severe depression if she met with setbacks. The depression could be alleviated to an extent by treatment consisting of psychotherapy and medication. He suggested intensive therapy at her home, with 50 sessions per year for the first three years. The therapy would consist of :

(a) coping strategies to help acceptance of disability, dealing with physical, social and marital stressors;

(b) cognitive restructuring for negative thinking;

(c) behavioural rehearsal for certain and other social skills; and

(d) relaxation and meditative procedures possibly with self hypnosis for agitation and tension states.

In addition, Dr Singer recommended counselling for the other family members including the husband and the elder daughter as well as the son who was with the 1st plaintiff at the time of the accident and who had symptoms suggestive of post-traumatic stress disorder.

22. After his examination of the 1st plaintiff in April 2000, Dr Singer concluded that her depressive mood was less severe but she also had sudden episodes of severe depression once in a few months for no apparent reasons, each episode lasting from 10 to 15 minutes. Her memory had deteriorated and she was more irritable. Her headaches and dizziness were more frequent. Her nightmares of the accident, which used to recur about once in two to three months, now occurred about once in six months.

23. Dr Singer stated that the 1st plaintiff was still suffering from Depressive Disorder which was still moderate in degree. She was also still suffering from Post Cocussional Syndrome and also from Post Traumatic Stress Disorder. His opinion, as to the prognosis for the psychiatric disabilities, was the same as the 1998 save that his prognosis for the Post Traumatic Stress Disorder which was newly diagnosed was that it was poor due to the chronicity although it might be alleviated by treatment to some extent. He made the same recommendations as to treatment save that he also recommended desensitisation procedure for fears associated with the Post Tramatic Stress Disorder. He enlarged his recommendations as to care and attention by advising that the 1st plaintiff needs a full-time enrolled nurse with psychiatric experience for a 12 hour day shift for life.

24. After examining the 1st plaintiff in January 2001, Dr Singer noted the 1st plaintiff's physical complaints, memory, concentration, irritability and headaches had all worsened. She was now awakened at nights by startled reactions and all other symptoms had persisted. Her nightmares of the accident, however, had improved. She became irritable quite easily, feeling herself to be a burden to others. Her headaches had increased with time and were sometimes so overwhelming that she needs intravenous medication. As for her sex life, Dr Singer states that it is a "sham" as it is maintained as a heroic attempt to maintain her relationship with her husband. Dr Singer further states that she shows commendable fortitude in handling her losses and her denial is one of the ways she uses to cope with her problems. She could not easily admit to her disabilities and problems, otherwise her defences would break down and she does not believe in complaining.

PAIN SUFFERING AND LOSS OF AMENITIES

25. The injuries and disabilities of the 1st plaintiff as stated above has not been disputed by the defendants. It is clear from those injuries and disabilities that the 1st plaintiff will have to spend the rest of her life in a wheelchair and that her disabilities are permanent.

26. I have been referred to a number of locally decided cases in relation to awards for general damages to quadriplegia, paraplegia as well as hemiplegia. Using those cases as a general guideline and without going into any detail, it would be suffice to say that in the present case, the 1st plaintiff clearly falls into the 'Disaster' category as it is understood in the case of Lee Ting Lam. Therefore, taking into account all her injuries and disabilities including her psychiatric condition, a reasonable amount of damages under this head would be $1.8 million. That would be the award to the 1st plaintiff for her pain suffering and loss of amenities.

LOSS OF SOCIETY

27. There is a claim for loss of society both as a wife and as a mother. The claim for loss of society as wife is put at $150,000 and as mother towards her children, it is put at $100,000. This claim has not been disputed by the defendants. I am satisfied that this claim is reasonable in all the circumstances of this case and will be awarded totally in the sum of $250,000.

SPECIAL DAMAGES (PRE-TRIAL)

28. The following items of special damages pre-trial as well as the amount claimed for each item are not in dispute between the parties :

		$
A	medical expenses	194,467.00
B	cost of aids and equipments	83,621.00
C	consumables	131,782.25
D	cost of domestic helper	360,000.00

29. I am satisfied on the evidence before me that the amounts in respect of the four items above have been expended and are reasonable in the circumstances in this case and they will be allowed.

30. The 1st plaintiff also claims transportation costs in the total sum of $82,780.00. The defendants on the other hand are prepared to concede a sum of $70,860.00 under this head. Although the dispute between them is not great, there is nevertheless an issue here that has to be decided.

31. The difference between parties encompasses a very narrow issue relating only to the visits by the 1st plaintiff to the Duchess of Kent Children Hospital and also her visits to the Sai Ying Pun Urology Clinic for follow up. The 1st plaintiff's claim in these two respects are based on an estimated 100 return trips each to the Duchess of Kent Children Hospital as well as to the Sai Ying Pun Urology Clinic. However, the evidence in her witness statement states that the 1st plaintiff had visited the Duchess of Kent Children Hospital totally for some seven times and that her visits to the Sai Yin Pun Urology Clinic is on average once in three to four months since 1995.

32. In the light of that evidence, the amount claimed must be overstated. Accordingly, the pre-trial transportation expenses will be adjusted downwards and will be awarded in the sum of $70,860.00.

33. The 1st plaintiff further claims pre-trial loss of earnings/value of her husband. In this respect, the 1st plaintiff claims the sum of $2,265,000.00. The defendants, however, are only prepared to concede an amount of $2 million under this head. Again the difference will have to be resolved.

34. The evidence before me in relation to this claim shows that the husband of the 1st plaintiff was employed by his brother-in-law in a very successful ceramic business which was expanding at the time of the accident. As a result of the accident, the husband had no choice but to give up this work in the light of the severe injuries to the 1st plaintiff to the care of not only the 1st plaintiff but also the two children, making it impossible for him to return to this work. The salary of the husband at the time of the accident, as stated in the Employers Return to the Inland Revenue, was $9,340 per month.

35. However, there is also evidence before me from the brother-in-law that the husband of the 1st plaintiff effectively received much more than the salary of $9,340. In real terms, the total amount received by the 1st plaintiff's husband would be closer to $50,000 gross if he had continued working, as he would have been assigned to manage a new factory in China and when his bonus and double pay had also been taken into account. It is also the evidence of the brother-in-law that the replacement for the husband of the 1st plaintiff is in fact earning $48,750 per month as from 1995 onwards and that the 1st plaintiff's husband would probably have been paid more than this amount (because of his experience) had he not stopped working.

36. The evidence stated above has not been disputed or challenged by the defendants. Neither do the defendants dispute in principle that it is reasonable for the husband of the 1st plaintiff to take care of the 1st plaintiff and the children after the accident and thereby having to stop his work which he was engaged in before the accident. What is disputed by the defendants goes to the method of assessment of damages under this head. The defendants contend that the method of assessment adopted by the plaintiff, namely, by taking the actual amount of lost earnings of the husband as the basis for valuing the unpaid help undertaken by the husband is wrong. The defendants rely upon the principle enunciated in Housecroft v. Burnett [1986] 1 All ER 332 where it was held by the Court of Appeal in England that as a guideline, an award under this head should not exceed the commercial rate for the services provided to the plaintiff.

37. This, however, is not a principle but only a guideline. The decision in Housecroft was considered by Seagroatt J in the case of Ta Xuong v. Incorporated Owners of Sun Hing Building, but that guideline was not followed. In each case, the nature of the care and the nature of the employment surrendered must be looked at in all the surrounding circumstances of the case itself.

38. In the present case, viewed in the light of the 1st plaintiff's injuries and resultant disabilities, which required not just the care and services of the husband, but probably more importantly, his constant moral support, dedication and being by her side at all time, I am prepared to accept the suggestion made by the plaintiff's counsel that I should take a median loss of net earnings for the pre-trial period to assess the husband's loss of earnings for that period. In the absence of any firm figures of what the husband would have been paid had he continued in the job, I shall use the salary paid to his replacement (i.e. $48,750) and the husband's pre-accident salary of $9,340. This gives a median of $29,045 per month. For the pre-trial period, the husband's loss of earnings comes to $2,192,898 which will be the amount awarded for the husband's loss of earnings.

39. The total pre-trial losses comes to $3,033,628.25.

FUTURE EXPENSES

A. Aids and equipment

40. A total of 48 items of aids and equipments have been listed in the 1st plaintiff's Scott's Schedule of Damages under this head. However, five of these items have now been withdrawn by the 1st plaintiff. Most of the items are medical and have been recommended by either Mr Andrew Kwok, the rehabilitation expert, or by Mrs Shelley Chow, the occupational therapist. Having withdrawn those five items, the 1st plaintiff's total claim under this head of damage comes to $1,282,017.13.

41. The majority of the items claimed are not disputed by the defendants, neither do the defendants dispute that for many of these items a multiplier of 17 should be adopted in this case in quantifying the proper amount of the claim.

42. There are, however, two main areas of dispute by the defendants. Firstly, the defendants submit that for the hospital bed, the hoist and the transfer boards, a multiplier of 14 (and not 17) should be used on the grounds that the 1st plaintiff does not at present require these items but only when she ages and becomes less independent.

43. I accept that submission by the defendants in respect of the hospital bed and the hoist since there is clear evidence in the reports of Mr Andrew Kwok and Mrs Shelley Chow that the 1st plaintiff will not need these items just yet, not until she ages or becomes less mobile or independent. Accordingly, the claim will be reduced by $23,744 and $16,876 respectively. In so far as the transfer board is concerned, that submission is not borne out by the evidence.

44. Secondly, the defendants submit that the claim for the following items are unreasonable or unnecessary :

(a) bathboard and bathseat;

(b) washing drying machine;

(c) wheelchair trunk support safety strap;

(d) wheelchair carry bag;

(e) anti-decubitus mattress and artificial sheepskin bedpad;

(f) anti-decubitus wheelchair cushion;

(g) wheelchair rain cover;

(h) long handled shoehorn; and

(i) reciprical gait orthosis.

45. With the exception of the washing and drying machine, I do not accept the submission by the defendants that the rest of the above items are unreasonable or unnecessary. All of those items have been recommended by the experts, either Mr Andrew Kwok or Mrs Shelley Chow. In the absence of any evidence to contradict that evidence of the experts, I am inclined to accept the evidence of the two experts that these items are reasonably necessary for the 1st plaintiff's benefit. As for the washing and drying machine, I can take judicial notice of the fact that this is such a common every day necessity in almost every household that more likely than not it would be a machine to be found in the 1st plaintiff's home even had this accident not occurred to her. In such event, I shall disallow the claim for the washing and drying machine which is claimed at $23,995 in the Scott's Schedule.

46. For the above reasons, the 1st plaintiff's claim under this head totalling $1,282,017 will be reduced by an amount of $64,615, thus giving the final amount of $1,217,402 which is the amount assessed under this head of claim.

B. Medical consumables and recurring expenses

47. Due to typing error in the Scott's Schedule of Damages, the claim for adult diapers (items 49) was erroneously stated to be $53,125 therein, when it should properly have been $155,125. This error has now been corrected and is not disputed by the defendants that the amount claimed should properly be $155,125. In fact, this claim for adult diapers and the correct amount is admitted by the defendants as being reasonable.

48. The rest of the items claimed, being item 49 to item 70 inclusive in the Scott's Schedule of Damages, have been accepted by the defendants as being reasonable and necessary. Most of these items are required by the 1st plaintiff due to the fact that she suffers from double incontinence. The multiplier used, in this case 17 for all the items, have also been agreed to by the defendants.

49. Taking into account the correct figure for the amount of the claim for adult diapers, the total amount under this head of claim comes to $443,397 which is the amount assessed as being reasonable and necessary under this head of claim.

C. Additional household expenditure

50. The 1st plaintiff claims additional household expenses in the form of increased electricity and heating expenses as well as extra washing powder. She is sensitive to temperature by reason of her disabilities and the extra expenditure is justified because of her special needs.

51. The multiplicand of $4,800 per year for extra electricity and extra heating is supported by Mr Andrew Kwok and is agreed by the 2nd and 5th defendants. The claim for extra washing powder is also agreed by the defendants at $44 per month or $528 per year. The total annual multiplicand therefore comes to $5,328. Again, the multiplier of 17 is agreed by the defendants.

52. Accordingly, using those multiplicand and multiplier, the total amount assessed for additional household expenditure comes to $90,576.

D. Extra transportation cost

53. The 1st plaintiff is wheelchair-bound for life and unable to travel out of her home unless accompanied. She cannot take public transport. Her freedom of movement is thereby restricted. Notwithstanding her limitation in movement and her disability, she is active in taking part in Chinese Opera, visiting old people's homes etc. Mr Andrew Kwok has recommended a specially adapted van such that her enjoyment of such activities by the 1st plaintiff can be improved. It would increase the quality of her life. The adaptations are made to enable easy access and egress by wheelchair.

54. In all the circumstances of this case, that recommendation is both reasonable and necessary.

55. The claim for the purchase of the special van (item 73 in Scott's Schedule) has been broken down to an annual figure of $123,500 which includes the adaptation cost. The multiplier is agreed at 17. The amount of that claim comes to $2,099,500.

56. There is also a claim for extra transportation cost which is agreed to by the defendants. This is based on an annual figure of $26,000 and a multiplier of 17. It gives an amount of $442,000 (item 75).

57. The claim in item 74 has been withdrawn by the 1st plaintiff.

58. The total amount assessed under this head comes to $2,541,500 and that will be the amount awarded.

E. Future medical and care

59. A number of different items are included under this head of claim and I shall deal with each in turn.

(i) Psychiatric treatment/cover

60. Dr Singer has recommended psychotherapy and counselling including marital and sexual counselling for the first three years and thereafter maintenance treatment for life as well as counselling for the 1st plaintiff's family members. The total estimated cost of Dr Singer's recommended treatment amounts to over $2 million.

61. The 1st plaintiff is currently attending counselling sessions with Dr Katherine Kot and intends to continue with her. The cost of the sessions with Dr Kot is substantially less than what has been recommended by Dr Singer, being at $1,500 per session instead of $3,500 because the 1st plaintiff attends at Dr Kot's clinic. On that basis, the 1st plaintiff is prepared to limit her claim at 50 sessions per year for the first three years and thereafter at six sessions per year. This works out to $201,000.

62. The 1st plaintiff is further prepared to reduce her claim for hospitalization expenses from yearly to three admissions in total amounting to $115,500.

63. She is also prepared to limit her claims for family counselling for her husband and eldest daughter to six sessions per year for two years for her husband and for one year for the daughter. This works out at $27,000.

64. The above concessions by the 1st plaintiff is wholly reasonable and on that basis, the total amount for psychiatric treatment is assessed at $343,500.

(ii) Urological treatment/cover/surgery

65. I have already referred to the recommendations of Dr Koo above when dealing with the 1st plaintiff's urological assessment. In brief, the 1st plaintiff requires lifetime urological cover for her bladder problems. Moreover, in her present condition, she cannot be expected to stand in line with other patients to wait for such specialist treatment at the public sector when she can have treatment in the private sector as recommended by Dr Koo.

66. The claim for urological treatment and cover in the private sector is based on it, costing $13,400 per year and surgery at a lump sum of $120,000. Once more using a multiplier of 17, it is assessed at $347,800 which is the amount assessed for urological treatment/cover.

(iii) Neurological treatment

67. As recommended by Dr Yu Yuk Ling, the annual cost of neurological treatment and consultation is given at $8,750. This annual cost is agreed to by the 2nd and 5th defendants. Using a multiplier of 17, neurological treatment is assessed at $148,750.

(iv) Orthopaedic cover

68. Dr Arthur Chiang has recommended orthopaedic care for the 1st plaintiff's back complaint, i.e. stretching and posture exercises and the use of lumbar supports. Massaging the limbs should relieve her tennis elbow pains and should the pain become intolerable, steroid injections could be used to resolve the symptoms. The cost including steroid injections comes to $9,600.

69. This is reasonable and will be allowed.

(v) Physiotherapy

70. Mr David Siu has recommended a course of treatment followed by life-long maintenance. With the 1st plaintiff wheelchair bound, he advises that she should receive physiotherapy at home. He recommends $30,350 for the initial treatment for three months and thereafter annual costs of $10,800.

71. Once again in her condition, this recommendation appears to be sensible and reasonable. Accordingly, I accept that recommendation and assess the cost of future physiotherapy in the amount of $220,850.

(vi) Domiciliary occupational therapy

72. Mrs Shelley Chow has recommended domiciliary therapy of $1,200 per visit by occupational therapist every three to four months. On that basis, the annual cost works out to be $3,600.

73. The recommendation appears reasonable in the circumstances of this case and using the same multiplier of 17, the award assessed under this head comes to $61,200.

(vii) General medical consultations

74. The 2nd and 5th defendants agree to the 1st plaintiff's claim for $17,000 under this head and that amount will be awarded.

(viii) Splintage

75. This is recommended by Mrs Shelley Chow resulting from the 1st plaintiff's problem with her foot drop. The claim is for $53,873 which is based on an annual cost of $3,169 which includes the consultation fee of $730 per hour and the cost for the splints.

76. The recommendation and amount seems reasonable and will be assessed as recommended.

(ix) Domestic assistant

77. The 1st plaintiff claims for a full-time live in domestic helper at a cost of $90,115 per year. This claim is agreed by the 2nd and 5th defendants and works out to be $1,531,955 using once again a multiplier of 17.

78. Accordingly, the total amount assessed for Future Medical and Care comes to $2,724,928.

F. Holiday and memberships

79. Mrs Shelley Chow recommended that the 1st plaintiff should be able to participate in social events or go on holidays. In so doing, the 1st plaintiff will have extra or additional expenses because of her disabilities as, for example, bringing a helper on holiday because of the condition she is in. This will reduce anxieties and fraustrations (see Cheung J in Lai Chi Pon v. Toto Steel Works Ltd No. 2 [1997] 2 HKC 741 at 755-6). It is also accepted that it would be beneficial for disabled persons if they are given allowances for socialisation activities especially with other handicapped persons. The 1st plaintiff has taken part in such activities and it is reasonable and important that she should continue in them.

80. $35,000 per year is claimed for the extra cost of holidays, $750 per year for car memberships and $6,200 per year the cost of social membership. These multiplicands and the multiplier of 17 are all agreed to by the 2nd and 5th defendants. The total amount assessed under this head comes to $713,150.

G. Training needs

81. The 1st plaintiff's initial claim under this head was for the amount of $318,625, but has now agreed to come down to a total figure of $130,000 of which $100,000 is for the purchase of a computer, software and training courses, and $30,000 is to cater for her driving lessons.

82. The claim for this reduced amount of $130,000 is agreed to by the defendants and will be allowed in that sum.

H. Future accommodation expenses

83. Under this head, the 1st plaintiff now asks for a total sum of $2,159,460. It is undeniable that the 1st plaintiff needs alternative accommodation and claims for alternative accommodation is a well established head of damages awarded in cases of paraplegia. In the present case, this claim is well supported by the various experts, in particular Dr Yu Yuk Ling, Dr Singer, Mrs Chow, Mr Kwok and Mr Joseph Kwan of Rehabaid, a consultant architect with specialist knowledge of the needs of the disabled.

84. Mr Ian Cullen, the chartered surveyor, has made detailed recommendations as to the suitability and costs of suitable alternative accommodation for the 1st plaintiff.

85. I accept that the correct approach to assessing damages for alternative accommodation is to take the differential in the rental between the existing accommodation and the alternative accommodations (see Leung Sai Kui v. F. Zimmern & Co., HCA No.A1151 of 1985; Li Tin Yau, HCA No.A7524 of 1985 and Chan Yuk v. Dragages [2000] 2 HKLRD 795).

86. With that approach, the parties have agreed the annual multiplicand in the amount of $153,400. Although this figure is substantially below the figure recommended by Mr Kwan and Mr Cullen, nevertheless the 1st plaintiff has accepted it as representing the differential between the premises which has been recommended to the 1st plaintiff in the estate known as South Horizons in Ap Lei Chau and those premises in which she now lives in Chi Fu Fa Yuen. This multiplicand also takes into account the rental which the 1st plaintiff could achieve for her existing premises.

87. Instead of using the multiplier of 17 as has been used for other heads of future expenses, a discounted multiplier of 14 will be adopted to take account of all the contingencies and uncertainties of life. The equation will thus give the amount of $2,147,600. To this sum will be added a lump sum of $11,700 to cater for legal costs, estate agents fees and stamp duty. The final figure assessed for this head of claim comes to $2,159,460.

I. Adaptation costs

88. The cost of adaptation for the premises in South Horizons are estimated at over $330,000 by Mr Joseph Kwan, the adaptations being to cater to the special needs of the 1st plaintiff in her present condition.

89. However, despite that estimation, the 1st plaintiff are agreeable to limiting her claim under this head to the amount of $215,000 as offered by the 2nd and 5th defendants.

INTERESTS

90. Interests will be awarded on general damages for pain suffering and loss of amenities as well as for loss of society and services at 2% per annum from the date of Writ. Interests on pre-trial special damages will be awarded at half judgment rate from the date of the accident.

SUMMARY OF ASSESSMENT

		$
General Damages
PSLA		1,800,000.00
Loss of Society		250,000.00
Total Special Damages (pre-trial)		3,033,628.25
Future Losses
Aids and Equipment		1,217,402.00
Medical Consumables		443,397.00
Additional Household Expenditure		90,576.00
Extra Transportation Cost		2,541,500.00
Future Medical and Care		2,724,928.00
Holiday and Membership		713,150.00
Training Needs		130,000.00
Future Accommodation Expenses		2,159,460.00
Adaptation Costs		215,000.00
	Sub-total:	15,319,041.25
Interests on General Damages		167,417.00
Interests on Special Damages		1,297,887.00
	Total :	16,784,345.25

Accordingly, the 1st plaintiff's total damages inclusive of interests is assessed at $16,784,345.25.

COSTS

91. There will be a costs order nisi that the costs of the assessment in relation to the 1st plaintiff will be borne by the defendants, to be taxed on a party and party basis if not agreed with certificate for two counsel.

Representation:

Mr Ozorio, SC, leading Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 1st Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 5TH PLAINTIFF

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1. This is an assessment of damages in respect of the 5th plaintiff arising from the collapse of the canopy at Albert House in Aberdeen on 1 August 1994. Liability has already been determined in favour of the plaintiffs against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.

2. At the time of the collapse, the 5th plaintiff had just purchased a newspaper from a newspaper vendor (being the deceased in the claim of the 7th plaintiff herein) and must have been only feet away from the deceased when the canopy collapsed.

INJURIES AND TREATMENT

3. Initially when the 5th plaintiff was taken to the Queen Mary Hospital, the only injury noticed by doctors at the hospital was a 1 cm wound over the right ear. She was therefore treated and discharged from the hospital.

4. She was subsequently examined by Dr Arthur Chiang who gave four medical reports between September 1995 and February 2001. It is now not disputed that as a result of the collapse of the canopy, the 5th plaintiff sustained injury to her left kidney, lower back, and right sacral iliac joint and lacerations to her right ear. She was also found to have blood in her urine and a large flank ecchymosis (bruise) was also detected. A CT scan showed a large haematoma around the left kidney. The soft tissue/muscle contution of the lower back and injury to the right sacral iliac joint resulted in pain at the right hip and leg.

5. In his first examination of the 5th plaintiff, Dr Chiang noted tenderness on deep palpation of the left sacral iliac joint and some restriction in the range of movement of the lumbar spine. The 5th plaintiff complained of a mild ache at the left side of the sacral iliac area of the lower back at the end range of extension of the lower back and pain in the back of the right sacral iliac joint upon extremes of flexion of the hips with adduction.

6. Dr Chiang advised that although there was no bony injury, the large haematoma and ecchymosis was expected to be associated with a substantial degree of soft tissue/muscle contution of the lower back and the current residual low back complaint is likely to be the result of the extensive soft tissue injury. The right hip and leg complaint was likely to be from contution of the sacral iliac joint.

7. Dr Chiang advised that the orthopaedic injuries were permanent, amounting to a 5% impairment of the person. He further advised that the 5th plaintiff was fit to return to her pre-accident work with a 5% loss of earnings capacity.

8. When Dr Chiang next examined, the 5th plaintiff in December 1998, four years after the accident, he noted improvements in the orthopaedic condition of the 5th plaintiff and reduced his earlier assessment of her orthopaedic impairment to 2% instead of the original 5% given earlier.

9. There is also evidence before me that in November 2000, the plaintiff had an operation to remove a malignant tumour of the large bowel. This is not caused by the accident. However, because of this the 5th plaintiff has adopted a realistic approach to the assessment and has waived her claims for future loss of earnings.

10. Presently the 5th plaintiff continues to have pain in her back which sometimes radiates to her waist. She is still on painkillers. At times her daughter gives her a massage. The 5th plaintiff also experiences tightness in her thighs and numbness in her right leg with swellings at both legs.

11. Since the accident, the 5th plaintiff has also developed night time urinary frequency, necessitating her to get up from bed four to five times each night with the feeling of a full bladder. She is now still receiving treatment from herbalist for her urological problems.

GENERAL DAMAGES FOR PAIN, SUFFERING AND LOSS OF AMENITIES

12. From the medical evidence above, it appears that the 5th plaintiff did not sustain any major physical disabilities as a result of the accident. However, there is also evidence from the 5th plaintiff and her daughter that since the accident, the 5th plaintiff has not returned to her pre-accident work as a seamstress working at home. There is also evidence that after the accident, the 5th plaintiff moved to live at the home of another daughter of hers being looked after there by a maid.

13. Taking into account all these matters, I have come to the conclusion that a sum of $275,000 would be reasonable damages under this head.

LOSS OF SERVICES

14. There is a claim for loss of services under section 20C of the Law Amendment Reform Consolidation Ordinance, Cap.23. It arises in this way. Prior to the accident, the 5th plaintiff lived with her daughter but Dr Mei, in the same household. The 5th plaintiff did all the housework and looked after her daughter, cooking and preparing breakfast for her. As a result of the accident, the 5th plaintiff was not able to do the housework, look after her daughter or cook for her. This loss of service is quantified by the 5th plaintiff at $50,000. The claim and the amount has not been disputed by the 2nd and the 5th defendants. Accordingly, that sum will be allowed.

LOSS OF EARNINGS (PRE-TRIAL)

15. As already indicated above, the 5th plaintiff was working as a seamstress at home doing piecework before the accident. The evidence of the 5th plaintiff in this respect was that she did the work for regular known customs doing alteration of clothing for them. According to the 5th defendant, business was brisk and the 5th defendant was able to work quickly making such alterations. She would normally charge $20 to $30 for a simple piece of work and $120 for more difficult alterations. In doing this work, the 5th plaintiff was able to make between $2,000 and $3,000 per month.

16. At the time of the accident, and the 5th plaintiff was 69 years old. Although there was no age limit in respect of the home industry in which she was engaged, it would be reasonable to expect that she would not have continued working as a seamstress at home for very much longer after she was, say, seventy years old. In the circumstances, I am of the view that an award under this head for 24 months would be reasonable. As for the multiplicand, I would choose the monthly sum of $2,750 thus giving a total amount of $66,000.

SPECIAL DAMAGES

17. The 5th plaintiff also claims for medical expenses in the amount of $79,776; travelling expenses totalling $30,700 as well as tonic food in the amount of $6,000. These claims and the amounts claimed have not been disputed by the 2nd and 5th defendant and will be allowed.

COST OF DOMESTIC HELPER

18. In her claim, the 5th plaintiff claimed an amount of $14,875 being a part share of the cost of a domestic helper engaged by the elder daughter of the 5th plaintiff and who took care of the 5th plaintiff for some seven months after the accident. In so far as this claim is concerned, the 2nd and 5th defendants have conceded an amount of $11,100. That concession is acceptable to the 5th plaintiff and the amount of $11,100 will be awarded under this head.

FUTURE LOSS OF EARNINGS

19. By reason of the views expressed on the 5th plaintiff's claim for past loss of earnings, there will be no award made in respect of future loss of earnings.

INTERESTS

20. Interests on general damages for pain and suffering and also for loss of services will be awarded at 2% per annum from the date of the Writ. The total amount of interests on general damages comes to $24,916. Interests at half judgment rate will be awarded on all special damages and past loss of earnings from the date of accident. Total amount of interests on special damages and past loss of earnings comes to $76,508.

SUMMARY

			$
(a)	General Damages
	PSLA		275,000
	Loss of Services		50,000
		Sub-tota:	325,000
		Interests thereon:	24,961
(b)	Special Damages
	Medical Expenses		79,776
	Travelling		30,700
	Tonic Food		6,000
	Domestic Help		11,100
	Past Loss of Earnings		66,000
		Sub-total :	193,576
		Interests thereon :	76,508
		Total :	620,045

The total damages assessed in respect of the 5th plaintiff therefore comes to $620,045.

COSTS

21. There will be a costs order nisi that the defendants do pay the costs of this assessment to be taxed on a party and party basis if not agreed. The 5th plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 5th Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 4TH PLAINTIFF

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1. This is an assessment of damages in relation to the 4th plaintiff as a result of the canopy collapse in Albert House on 1 August 1994. Liability has already been determined in favour of the plaintiffs against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.

2. At the time of the accident the 4th plaintiff was walking a short distance behind her mother underneath the canopy as it collapsed. Her mother, who was carrying another sibling, quickly stepped into boutique but the 4th plaintiff was unfortunately buried under the rubble of the collapsed canopy and remained buried for half an hour before she was rescued. The 4th plaintiff was five years old at the time of the accident and is now 12.

INJURIES AND TREATMENT

3. The 4th plaintiff was admitted to Queen Mary Hospital where she was diagnosed to have sustained a fracture of the right superior and inferior cubic ramy, involving the right acetabulum or hip socket. She also sustained a fracture of the left sacral iliac joint as well is two fractured upper incisors and lacerations over the right forehead.

4. The forehead lacerations were sutured, the pelvic fractures were reduced under general anaesthesia and external fixation was applied. Due to unsatisfactory alignment, she underwent further operations under general anaesthesia. Readjustment of the fixator was performed on 5 and 12 August with a traction pin inserted. The 4th plaintiff was discharged on 5 October after two months of hospitalisation. She underwent 25 sessions of physiotherapy from 5 October 1994 until 13 January 1995 and is still attending for follow-up treatment today, seven years later.

5. As a result of the accident, the 4th plaintiff has the following orthopaedic, cosmetic, neurological, psychological and psychiatric disabilities which are permanent :-

i. Asymmetry of the pelvis with a downward tilting of the pelvis to the right side, resulting in a risk that in future she will be unable to give normal birth to a child but will require a Caesarian section;

ii. Bony sclerosis in the triradiate cartilage zone of the right acetabulum;

iii. Scarring on the forehead and right and left iliac crest regions and left knee. The scarring on the forehead and hips are noticeable and will be a source of embarrassment to her, particularly when she is older. She has cried on occasions when negative comments about her appearance have been directed at her;

iv. Post Concussional Syndrome, resulting in, inter alia, dizziness, headaches, motion sickness, emotional disturbance and personality changes;

v. Cognitive impairment from brain/neurological damage, including hypoxic damage to the hippocampal region of both mesiotemporal lobes, impacting upon the processing of memory. A correlated deficit has been noted in psychometric testing as a result of which a significant impairment to her visual delayed memory function has been identified. This means that she has learning difficulties arising from difficulties in processing or encoding semantically unrelated material and sequencing material. This has resulted in an impairment of the memory and serious difficulties in reading, dictation, spelling and mental arithmetic despite her residual high average Intelligence Quotient of 116. It is probable that her pre accident IQ or potential IQ was higher then 116.

vi. Visual impairment, resulting from brain/neurological damage, including convergence insufficiency, accommodative infacility and poor visual tracking; and

vii. Post Traumatic Stress Disorder which still manifest itself in the form of nightmares of the accident, impaired sleep, startled reactions, avoidance of thoughts and conversation of the accident, detachment, reduced interest, irritability, difficulty in concentrating and learning. Her tutor describes her as a "scared little bird".

PAIN SUFFERING AND LOSS OF AMENITIES

6. On the above undisputed medical condition and disability of the 4th plaintiff, there is no dispute between the parties that firstly, the 4th plaintiff falls into the top end of the 'Serious Injury' category as it is understood in the case of Lee Ting Lam, and that secondly, a reasonable amount under this head of damage as regards the 4th plaintiff is in the region of $600,000.00. Under those circumstances this amount of $600,000.00 will be awarded for the 4th plaintiff's pain suffering and loss of amenities.

SPECIAL DAMAGES

7. There is also no dispute between the parties as to the items of special damages claimed nor the amount thereof which are as follows :-

		$
Father's loss of income		20,000
Medical expenses		19,376
Travelling expenses		5,120
Tonic food		20,000
Cost of Private Tutor		50,000
Damaged clothing		150
	Total :	114,646

Upon the evidence relating to special damages, I am satisfied that such amounts have been incurred and are reasonable. In the circumstances, the above amounts claimed for special damages will be allowed in full.

FUTURE LOSS

A. Future psychiatric treatment

8. Very extensive private psychiatric treatment has been recommended by Dr Singer for the 4th plaintiff which is estimated to cost in the region of $65,000 per year for the next six years.

9. Dr Singer has also recommended psychiatric counselling and/or treatment costing in the region of $130,000 for the mother of the 4th plaintiff who has herself suffered psychiatric illness as a result of the accident to the 4th plaintiff and therefore less able to cope with the 4th plaintiff's needs.

10. On the other hand, the defendants, in their final submission, have indicated that they are prepared to concede an amount of $290,000 as being the cost of future psychiatric treatment for the 4th plaintiff and a further sum of $66,144 being the cost of future psychiatric treatment for the mother. Together these two sums conceded by the defendants come to $356,144.

11. I am not persuaded that the mother needs separate counselling or treatment and which needs to be paid for separately rather that her condition is a reflection of the condition of the 4th plaintiff. Moreover, at age 12, it would be most likely that the 4th plaintiff would be accompanied by her mother when she attends such treatment. In that sense, the mother can also benefit from the sessions which she attends with the 4th plaintiff.

12. By reason of the concession given by the defendants, the 4th plaintiff is prepared to come down to a total claim of $385,000 under this head of claim. Accordingly, I am of the view that an award of $385,000 would be reasonable under this head of claim.

B. Vision training and auditory therapy

13. Dr Ko Sai Cheong and Dr Ko Yang Yang have recommended for the 4th plaintiff vision therapy and auditory therapy costing $79,900 and $20,000 respectively. Neither those recommendations nor the amounts have been disputed or challenged in any way by the defendants. Both amounts will accordingly be allowed in full.

C. Future cost for developmental paediatrician

14. The 4th plaintiff claims for the cost of a developmental paediatrician on the basis that she has multiple disabilities and cognitive deficits and her development should be monitored by a private paediatrician so that there is continuity of treatment.

15. However, there seems to be a very large difference, even between the plaintiff's own experts, as to the cost for such a paediatrician. Dr Ko estimates it at $72,000 while Mrs Chung says $18,000.

16. The plaintiff's own counsel accepts that in view of the extensive psychiatric treatment which the 4th plaintiff is undertaking, her sessions with the paediatrician could be restricted to an as and when needed basis.

17. The defendants on the other hand are prepared only to concede an amount of $15,000 under this head of claim.

18. In view of the foregoing, in particular because of the concession by the defendants, I will make an award of $15,000 under this head of damage.

D. Cosmetic Surgery

19. Future cosmetic surgery is recommended by Dr Otto Au in the amount of $86,500. This recommendation and the amount of the cost of it has not been disputed or challenged by the defendants.

20. For a young female such as the 4th plaintiff, the scarring on the forehead and on the left knee will in time cause her embarrassment. It is therefore entirely reasonable to allow in full the amount recommended under this head of damage.

E. Cost of private tutor

21. $48,000 is claimed by the 4th plaintiff under this head and is conceded by the defendants. This is based on $800 per month for the next five years while the plaintiff will be at school. The resultant disabilities which she face as a result of her accident will clearly affect her schoolwork. This claims seems reasonable in all the circumstances and will be allowed.

F. Alternative learning strategy

22. Alternative Learning Strategy Training has been recommended for the 4th plaintiff by both Dr Ko and Mrs Chung. However the prices quoted by them are very different. The claim by the 4th plaintiff is for $204,600 which is already less than the amount recommended by Dr Ko. The figure suggested by Mrs Chung is $150,000.

23. That lower figure suggested by Mrs Chung is conceded by the defendants.

24. Given the injuries suffered by the 4th plaintiff and their resultant disabilities caused to her, she will undoubtedly benefit from specialised training.

25. In the light of the concession by the defendants, $150,000 will be awarded under this head.

G. Loss of earnings capacity

26. As already stated, the 4th plaintiff was five years old at the time of the accident and only 12 now. It will be quite a few more years before she will even embark on her working life. Any assessment as to what her future loss of earnings will be must be highly speculative since it must involve many as yet unknown factors to make such an assessment.

27. Counsel for the plaintiff has suggested that the multiplier-multiplicand method be adopted on the basis that what I have to assess here is the loss of a chance in respect of the 4th plaintiff as a result of the accident.

28. The argument of the 4th plaintiff runs as follows : the undisputed advice of the clinical psychologist, Mrs Hannah Chung is that the 4th plaintiff, being in the top 85 percentile before the accident, had more than a 50% chance of obtaining a degree after completing tertiary or university education, but as a result of the accident, she has now less than a 50% chance of passing her Form 5 government examinations and would have no chance of obtaining a tertiary degree. Mrs Chung further advices that the 4th plaintiff may try jobs in sales, in the service industry or unskilled jobs that do not require writing skills.

29. Dr Ko, the consultant paediatrician, expresses a similar view that the 4th plaintiff has less than 50% chance of obtaining a degree. Moreover, Dr Ko advises that the 4th plaintiff will no longer be capable of doing jobs that require writing and dictation skills.

30. The multiplicand therefore, submits the 4th plaintiff, should be the differential between the average career income that a university graduate could expect to receive and that of a person with only Form 3 or Form 5 qualifications could earn.

31. A voluminous amount of evidence has been placed before me in an attempt to show the salary offered by the Hong Kong Government in the non-directorate level as contained in the Master Pay Scale as well as earning levels offered by the Hong Kong Government for those with only Form 3 or Form 5 qualifications.

32. Without going into any great detail relating to those statistics, it suffices to say that counsel for the 4th plaintiff has worked out from those statistics the average income of a degree holder in the Civil Service to be $47,500 whereas the salary for those grades in the Civil Service upon completion of Form 5 generally range from $9,180 (MPS-2) to $22,075 (MPS-17) with some noteable exceptions which can be ignored for present purposes due to the fact that these exceptions are so few.

33. The 4th plaintiff further suggested an alternative approach which is to calculate the lost chance of the 4th plaintiff to have qualified as a professional by reference to the differential between the relevant starting salaries in the civil service as recently adjusted. Once again without going into any great detail, it suffices to say that from the statistics supplied by the plaintiff, counsel for the plaintiff has worked out that differential to be between $18,000 and $20,000.

34. In so far as the multiplier is concerned, it was submitted by counsel for the 4th plaintiff that although the 4th plaintiff has now only 12 years of age, taking into account the fact that it would be a number of years before she would reach working age as well as the fact of accelerated payment, it would be appropriate to discount the multiplier down to 13 instead of using the normal ceiling figure. Using the lower figure of the differential in the alternative approach and applying that to win multiplier 13, this would give the figure of $2,246,400 as representing the loss of future earnings capacity. In addition it was submitted that a further 5% of this figure amounting to $112,320 should be taken into account as representing the loss of Mandatory Provident Fund benefits.

35. The defendants on the other hand, while disputing the initial approach of assessing future loss of earnings capacity, conceded that $2.36 million would be a reasonable figure as an award under this head inclusive of the possible loss of Mandatory Provident Fund.

36. In view of the many as yet unknown factors already referred to above, I share that view taken by the defendants and for that reason I find the initial approach as submitted by the 4th plaintiff unattractive. I would, in the circumstances of this case, prefer the alternative approach. As that has been conceded by the defendants, I will assess the loss of future earnings capacity to be $2.36 million which is inclusive of loss of Mandatory Provident Fund.

37. Total future losses therefore comes to $3,144,400.

INTERESTS

38. Interests will be awarded at 2% per annum on general damages for pain, suffering and loss of amenities from the date of the Writ. Interests on all pre-trial special damages will be awarded at half judgment rate from the date of the accident.

SUMMARY OF ASSESSMENT

		$
PSLA		600,000
Special Damages (Pre-trial)		114,646
Total Future Losses		3,144,400
	Sub-total:	3,859,046
Interests on PSLA		48,000
Interests on Special Damages		48,151
	Total:	3,955,197

The 4th plaintiff's damages is accordingly assessed at $3,955,197.

COSTS

39. There will be a costs order nisi that the defendants do pay the costs of this assessment to be taxed on common fund basis if not agreed with certificate for two counsel. The 4th plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Ozorio, SC, leading Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 4th Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

----------------------

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ASSESSMENT OF DAMAGES OF THE 3RD PLAINTIFF

------------------------------------------------------------------------

1. This is an assessment of damages in respect of the 3rd plaintiff arising from the collapse of a canopy at Albert House on 1 August 1994. Liability has already been determined in favour of the plaintiffs against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.

2. The 3rd plaintiff was another one of the victims of this canopy collapse. At the time of the accident the 3rd plaintiff was carrying her two and a half months old daughter in a baby sling strapped across her chest. Her older daughter, six years old, being the 9th plaintiff herein, was walking next to her. They had just finished tea at the New Best Restaurant and had just emerged from the entrance of the restaurant near to the newspaper stall when the canopy collapsed onto them. When the 3rd plaintiff was hit by concrete from the falling canopy, she instinctively used her right hand to protect her baby's head resulting in her right hand being crushed and eventually losing three fingers. However this instinctive reaction of hers may have saved her baby's life. She lost consciousness after being hit by the falling concrete and when she came to she was underneath the rubble and felt that someone was shouting at her and shaking her leg. She could not move. Her baby was the first to be rescued by the rescuers. Eventually the 3rd plaintiff herself was freed from the rubble. She felt blood on her head, numbness and pain in her right fingers but at the same time she had intense fear for the safety of her two daughters. She was taken to hospital by ambulance.

INJURIES AND TREATMENT

3. As a result of the accident the 3rd plaintiff sustained permanent orthopedic, cosmetic, cognitive and psychiatric disabilities. She lost part of the index, middle and ring fingers of her right dominant hand. She sustained discomfort and a decrease in sensation at the site of the injury to the right hand with a partial loss of grip and a reduction in her ability to lift heavy objects. Her right hand is now deformed and she has scars on her forehead which causes her embarrassment. She has Post Concussional Syndrome which manifests itself in bi-temporal headaches and dizziness particularly when travelling as well as memory loss with difficulties in concentrating. She also suffers from Post Traumatic Stress Disorder which manifests itself in recurrent distressing re-experiencing of the accident with symptoms of increased arousal. This causes insomnia. The 3rd plaintiff has undergone a personality change and is now anxious and impatient. She avoids any stimulus that reminds her of the accident and has a numbing of general responsiveness. Her sex life with her husband has also diminished.

4. When she was admitted to the orthopedic department of the Queen Mary hospital, the 3rd plaintiff was found to have bilateral temporal scalp laceration and grossly contaminated wounds of the right index, middle and ring fingers. Amputation of the distal joint of the ring finger was performed. Repair of the distal segment of the index and middle finger with repair to the nerves of the middle finger was also carried out. The temporal wounds were sutured. The 3rd plaintiff was then referred for follow-up at the hand class.

5. Upon admission to Queen Mary Hospital, doctors noted that the two lacerations of the scalp were at the right and left parietal region and were full of thickness. The 3rd plaintiff was otherwise stable and CT scan was normal. She was kept for 24 hours in the neurosurgical unit for observation before being transferred to the orthopedic unit for treatment.

6. In so far as her orthopedic condition was concerned, this was contained in medical reports prepared by Dr Arthur Chiang who first saw her one year after the accident. Apart from the injuries noted by doctors at the hospital, the 3rd plaintiff also sustained multiple contusions on the chest wall, the back and the shoulder areas and is probably indicative that her trunk and limbs bore the weight of the falling debris. She experiences aches in both shoulders, the lower back and the front of the chest wall. Dr Chiang estimates 1% impairment from these injuries.

7. There were two scars behind the hairline, one about seven centimetres at the left temporal area and another of four centimetres at the right temporal area. The 3rd plaintiff suffered occasional dizziness when she travelled. Dr Chiang estimates a further 1% impairment from the head injuries.

8. As for the injuries to her right hand, which is the dominant hand, Dr Chiang estimates that to be 8% impairment of the whole person. He further found on examination that the right-hand grip is weaker than the left, with the right middle finger being the weakest. The pinch power between thumb and right finger is mildly weakened. She has a feeling of stiffness of the hand when it is soaked in water. There is a decrease in sensation at the index and middle fingers, distal to the wounds. The ring finger had been amputated at the level of the middle phalanx and there was a healed curved scar at the stump. She has a deformed nail and a healed scar at the right index finger pulp. X-rays confirmed partial bone loss with shortening of the distal phalanx of the right index finger. There was a horizontal scar at the velar surface of the distal interphalangeal joint area and a longitudinal scar at the radial side of the middle phalanx.

9. Dr Chiang further states that the 3rd plaintiff could return to her pre-accident job but that her efficiency in handling fine objects requiring intact sensation of the index and middle fingers and when lifting heavy objects is impaired.

10. In a further report Dr Chiang noted some improvement in the condition of the right-hand and revised downwards his assessment of the total impairment from 10% to 7%. In two later reports, Dr Chiang confirmed this to be the level of disability of the 3rd plaintiff.

11. As for the neurological condition of the 3rd plaintiff, Dr Yu Yuk Ling noted that the 3rd plaintiff complained of bilateral headaches of a throbbing character associated with dizziness. The headaches occurred about once a week for about two hours at a time. She also had an itching sensation to the scar of the scalp. Additionally she had dizziness brought about by motion when she travelled on taxis and buses. She found it difficult to concentrate and her performance in mental tasks had deteriorated. Her memory was impaired.

12. Dr Yu took the view that the 3rd plaintiff had sustained a mild head injury with a loss of consciousness and amnesia of about half to one hour. She suffered from post concussional syndrome which resulted in an impairment of 3% and required medical consultations.

13. When Dr Yu examined the 3rd plaintiff in July 2000, he found little change to her neurological condition. He advised that her condition was permanent and that consultations should be limited to three to four visits a year at about $250 per visit.

14. In this latest report, Dr Yu advised that there was no link between symptoms of aching and numbness of the right arm and the accident as these were likely to be from carpal tunnel syndrome or cervical spondylosis.

15. The 3rd plaintiff was also examined in respect of her psychiatric condition by Dr Singer, a psychiatrist. Dr Singer recounts the terrible moments when the 3rd plaintiff and her baby were buried by the falling canopy near the newspapers stall. She lost consciousness and awoke after an indeterminate period, dazed, confused and fearful. She could not move even to free her baby from the sling. Rescuers took her baby away. She remained immobilised until they dug her out. Her fear increased when she heard that her baby was more seriously injured. Inside the ambulance she realised she had experienced any event involving threat of serious injury or death to her and her two daughters. She felt intense fear and horror. She prayed she could give ten years of her life to her children. She was admitted to the neurosurgical ward where she vomited repeatedly and wept continuously.

16. Dr Singer confirmed the 3rd plaintiff was suffering from Post Traumatic Stress Disorder and Post Concussional Syndrome. The 3rd plaintiff's condition manifests itself in recurrent distressing recollections of the accident associated with fear and palpitations. Even in May 2000, almost six years after the accident, these forced recollections occurred three times a week. She had a fear of overhanging objects and avoidance of thoughts of the accident but this has improved. Six years after the accident she still has impaired sleep two to three times a week. Moreover the 3rd plaintiff has impaired memory, headaches and dizziness. She has undergone a personality change becoming bad tempered. There have been marital problems as a result of the accident with a reduction in the frequency of sexual relations with her husband since the accident. She is unresponsive during intercourse and has threatened divorce.

17. Dr Singer advises that the prognosis for the Post Traumatic Stress Disorder and Post Concussional Syndrome is likely to be static as the condition has persisted for six years. Dr Singer further recommends psychiatric treatment in the private sector at the cost of $65,000 a year for three years, consisting of fortnightly sessions mainly psychotherapy at $2,500 per session. Medication may be required. Thereafter five years of maintenance treatment of $36,000 a year at $3000 a session. Follow-up was needed indefinitely every three months.

18. Dr Singer assessed the permanent impairment of earning capacity from psychiatric disability was 25% with treatment, and 50% without treatment. Permanent impairment of the whole person was 15% with treatment and 30% without.

PAIN SUFFERING AND LOSS OF AMENITIES

19. The injuries and treatment of the 3rd plaintiff as detailed above have not been disputed by the 2nd and 5th defendants at the assessment hearing. I accept that the 3rd plaintiff's medical, neurological and psychiatric condition to be as stated by the various doctors referred to above.

20. I have been referred to a number of locally decided cases in respect of the quantum of damages under this head. The cases referred to me are as follows :

(a) Chan Kai Wing (HCPI 1163 of 1999) where Master Lung awarded $450,000 for crushed injuries to the right preferred hand of a forty-eight year-old men who was hospitalised for 23 days;

(b) Cheng Sam Pak v. AG (HCPI 1184 of 1996) where Master Chung awarded $500,000 to a 13 year-old boy who lost the tips of four fingers including the finger nails of his right-hand when firecrackers exploded in its right-hand resulting also in psychological disabilities including pain, anguish, fearfulness, nightmares and disturbed sleep;

(c) Collins v. The Star Ferry Co. Ltd (HCPI 491 of 2000) where Sakhrani J awarded $475,000 to a mother who suffered some minor injuries but mainly post traumatic stress disorder as a result of witnessing what could have been a fatal accident to her baby son;

(d) Tsang Chung Wan v. Li Ming & Ors. [1998] 2 HKLRD 354 where the injuries to the plaintiff's fingers were held to be in the lower end of the "serious injury" category and $450,000.00 awarded for pain and suffering.

Using these cases as a guideline in respect of quantum for damages under this head and coming to the conclusion that the injuries to the 3rd plaintiff in the present case come just within the lowest end of the "Serious Injury" as laid down in the case of Lee Ting Lam, I am of the view that $430,000 would be reasonable compensation to the 3rd plaintiff under this head of damage.

SPECIAL DAMAGES

21. Past medical expenses are claimed at $24,120. These include the physiotherapy provided by Dr Chiu, 20 sessions at the Queen Mary Hospital hand clinic, expenses paid to Chinese herbalist consultations and medical fees paid to Dr Fang for treatment of her orthopedic injuries. The various amounts of medical expenses claimed have not been challenged by those defendants who appeared at the assessment hearing. The total amount of the medical expenses claimed being reasonable will be allowed in full.

22. Travelling expenses are claimed in the sum of $3,850. The evidence shows that this amount was expended for the purpose of the plaintiff travelling to and from medical treatment, physiotherapy and consultations with the Chinese herbalist. The amount claimed has been admitted by the 2nd and 5th defendants and will be allowed as being reasonably incurred.

23. Expenses for tonic food is claimed by the 3rd plaintiff in the sum of $3,000. This has not been disputed and appears a reasonable amount. It will be allowed in full.

24. $400 is claimed for damaged clothing. In the absence of any dispute to this claim, it will be allowed in full.

25. There is a claim for the loss of earnings of the 3rd plaintiff's husband in the total amount of $40,000 in respect of the five months immediately following the accident. The evidence showed that the 3rd plaintiff's husband was, at the time, a fisherman whose job would have taken him out to sea seven days in a week. Due to her injuries and her hospitalization, the husband had to take unpaid leave for five months to take care of the 3rd plaintiff as well as their two and a half months old baby and their five year old daughter. This claim is admitted by the 2nd and 5th defendants and will be allowed in full.

26. There is a claim for $10,000 by the 3rd plaintiff being what was paid to a Madam Leung Mui, the sister of the 3rd plaintiff's husband, in helping the 3rd plaintiff to look after her children for the three months immediately after the accident. This claim is disputed by the 2nd and 5th defendants on the grounds that this amount was not reasonably expended and overlaps with the husband taking five months leave from his work to look after the children. Accepting the defendant's submission on this point, this claim is disallowed.

PRE-TRIAL LOSS OF EARNINGS

27. Before the accident and up to about mid 1993, the 3rd plaintiff assisted in a bean curd stall selling bean curd and was paid about $4,200 per month. From mid-1993, she worked as a hawker and could earn on average between $6,000 to $7,000 a month. She stopped working as a hawker in around September 1993 when she became pregnant with her youngest child who was born in May 1994. She had intended to resume her hawking business in December 1994 but for the accident. As a result of the accident and the injuries she sustained, the 3rd plaintiff was not able to take up any work until November/December 1997 when she found part time work as a domestic helper. It is accepted by the 2nd and 5th defendants that in the pre-trial period, the 3rd plaintiff had totally earned $52,000 as a part time domestic helper.

28. While the 3rd plaintiff claims $371,500 under this head, the 2nd and 5th defendants have conceded the sum of $294,500 for pre-trial loss of earnings. This concession has been accepted by the 3rd plaintiff and the amount of $294,500 will be awarded under this head of damage.

FUTURE MEDICAL EXPENSES

29. As advised by Dr Yu Yuk Ling, the future medical expenses for the 3rd plaintiff's post concussional syndrome is estimated at $250 a session. Moreover since Dr Yu takes the view that her condition is permanent, the consultations should be limited to three or four visits per year. Using a multiplier of 16 will give $14,000.

30. As for the future psychiatric treatment, Dr Singer's recommendation for psychiatric treatment in the private sector is calculated to be around $471,000. However, the 3rd plaintiff is prepared to accede to the concession made by the 2nd and 5th defendants in the amount of $239,240 being the cost of future psychiatric treatment. In the circumstances, that sum will be awarded.

FUTURE LOSS OF EARNINGS AND MANDATORY PROVIDENT FUND

31. The 3rd plaintiff had initially claimed for $646,800 for her loss of future earnings based on the current estimated income of $6,000 less what she was earning at the bean curd stall and as a part time domestic helper between June and September 2000 and applying to that a multiplier of 14.

32. However, in view of Dr Arthur Chiang's advice as to the lack of a causative link between the 3rd plaintiff's current complaints of numbness in her arm and Dr Yu Yuk Ling's view that this may be a result of Carpal Tunnel Syndrome, alternatively, cervical spondylosis, the 3rd plaintiff is prepared to come down on her claim for loss of future earnings to the amount of $132,000 conceded by the 2nd and 5th defendants. In the circumstances, the sum of $132,000 will be awarded.

33. There is also a claim for loss of Mandatory Provident Fund. In the light of the above concession, the claim for Mandatory Provident Fund will be 5% of the amount of the loss of future earnings which comes to $6,600.

34. Totally therefore the amount awarded under this head will come to $138,600.

INTERESTS

35. Interests will be awarded on the general damages for pain suffering and loss of amenities at 2% form the date of the Writ.

36. On special damages and loss of pre-trial earnings, it will be awarded at half judgement rate from the date of the accident.

SUMMARY OF ASSESSMENT

		$
PSLA		430,000
Special Damages		71,370
Loss of Earnings (Pre-trial)		294,500
Future Medical Expenses		253,240
Future Loss of Earnings and MPF		138,600
	Sub-total:	1,187,710
Interests on General Damages		34,400
Interests on Special Damages		153,365
	Total:	1,375,475

37. Accordingly, the total damages assessed for the 3rd plaintiff comes to $1,375,475.

Costs

38. There will be a cost order nisi that the defendants do pay the costs of the assessment to be taxed on a party and party basis if not agreed. The 3rd plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 3rd Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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ASSESSMENT OF DAMAGES OF THE 2ND PLAINTIFF

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1. This is the assessment of damages in relation to the 2nd plaintiff arising from the collapse of the canopy at Albert House on 1 August 1994. Liability has already been dealt with and determined in favour of the plaintiffs against all the defendants.

2. At the hearing of the assessment of the defendants, only the 2nd and 5th defendants took part appearing by counsel. The other defendants did not appear either in person or by counsel.

3. The 2nd plaintiff is one of the victims from the collapse of this canopy. Although she did not suffer any physical injury as such, her case can be described as one of nervous shock when she was faced with a life threatening event as she witnessed the horrific death of her mother in the accident itself.

4. The 2nd plaintiff operated a newspaper stall outside the New Best Restaurant. This restaurant was situated on the ground, 1st and 2nd floors of Albert House. At the time of the accident her mother was looking after the newspaper stall for her while she went into the New Best Restaurant to make use of the toilet. As she came out of the restaurant on her return to the newspaper stall, the canopy immediately outside the New Best Restaurant collapsed, falling on to her mother who was at the stall at the time. The 2nd plaintiff was fortunate in that the collapse took place seconds before she stepped out of the restaurant entrance so that she did not suffer any physical injury from the collapse. However she saw the canopy coming down just a matter of feet in front of her and also saw her mother being buried underneath the concrete of the falling canopy.

INJURIES AND TREATMENT

5. The 2nd plaintiff is now aged 43. At the time of the accident she was 36 years old. After the accident, she was taken by ambulance to Queen Mary Hospital. However she discharged herself against advice from the hospital the same day. A report from the Accident and Emergency Department of Queen Mary hospital indicates that no physical injury was seen on the 2nd plaintiff when she was brought there by ambulance on the day of the accident.

6. A further report by Dr M.C. Wong (who examined her some nine days after the accident) of the Psychiatric Department of Queen Mary Hospital indicates that no psychomotor retardation was found in respect of the 2nd plaintiff who was coherent and relevant in speech. That report further indicates that she was slightly depressed and weepy. There was no feeling of worthlessness, hopelessness or guilt and no suicidal idea, no psychotic symptom and no gross cognitive impairment. The clinical diagnosis was Post Traumatic Stress Disorder which is a stress reaction caused by a life threatening event.

7. The 2nd plaintiff was subsequently examined by Dr William Green, a very experienced psychiatrist in Hong Kong, whose report dated 30 April 1997 indicates that the 2nd plaintiff had sustained incapacitating Post Traumatic Stress Disorder involving :

1. recurring intrusive memories;

2. distressing nightmares;

3. flashback experiences;

4 tension and onset of perspiration;

5. avoidance responses; and

6. increased self blame.

8. The 2nd plaintiff was also examined by another psychiatrist, Dr Singer whose report dated 9 September 1998 recorded her complaints as follows :

1. headaches;

2. recurring intrusive and distressing recollections of the accident every two to three days associated with palpitations lasting for 15 minutes;

3. recurring nightmares of the accident;

4. flashbacks every one to two weeks;

5. intense anxiety when she sees a situation reminiscent of the accident;

6. avoidance of objects in situations which reminded her of the accident;

7. numbing of feelings and withdrawal from activities;

8. sense of increased arousal;

9. impairments of concentration in memory;

10. inability to have warm feelings;

11. feelings of guilt that she could have saved her mother; and

12. deterioration in capacity for work at the newspaper stall and at home.

9. Dr Singer found that the 2nd plaintiff was suffering from Post Traumatic Stress Disorder which was moderate to severe in degree and was a psychological reaction to the accident in which she saw her mother crushed and killed and subsequently saw her disfigured face and body. Moreover, the Post Traumatic Stress Disorder is likely to remain unchanged or may get worse, but may improve with treatment. The treatment prescribed would include psychiatric treatment by medication and psychotherapy. Such treatment was unlikely to be available in the public sector. In the private sector, it would cost $195,000 being fortnightly session at $2,500 per session for three years. Furthermore, maintenance treatment would cost $36,000 per annum for an indefinite term. Dr Singer further advised that the 2nd plaintiff had a permanent loss of earnings capacity of 60% without treatment, 40% after treatment; and a permanent impairment of the whole person of 30% without treatment.

10. A further update report was given by Dr Singer dated 27 March 2000 in which he stated that the 2nd plaintiff still had psychological symptoms although they were less severe. He noted that she had bought sleeping pills for self treatment and lacked interest in communicating with family members or to have sex with her husband. He found her to be tense, depressed, lacking in initiative and impaired in concentration. Although she had improved since this last report, the Post Traumatic Stress Disorder was still moderate in degree and would probably remain unchanged. Psychiatric treatment was recommended for the 2nd plaintiff, her husband and daughters. On this occasion, he assessed her loss of earnings capacity to be 50% before treatment and 30% after treatment. The impairment of the whole person was 30% before and 20% after treatment.

DAMAGES FOR PAIN SUFFERING AND LOSS OF AMENITIES

11. In respect of this head of claim, I have been referred by counsels to a number of local decisions where other plaintiffs have suffered Post Traumatic Stress Disorders after witnessing the death or near death of other family members or loved ones. Notable amongst these local awards is the case of Francine Louise Collins v. The Star Ferry Co. Ltd (HCPI 491 of 2000) where Sakhrani J awarded $475,000 to the plaintiff in that case who had suffered minor physical injuries and Post Traumatic Stress Disorder as a result of witnessing the near death of her baby son.

12. Here the 2nd plaintiff actually did witness the death of her mother. Moreover, she had guilty feelings that she had been responsible, albeit in an indirect way, in causing the death of her mother. A further difference between these two cases is that the plaintiff in the Collins case had had intensive psychotherapy before the trial in that case but such treatment had not been available to the 2nd plaintiff through no fault of her own here.

13. There is no dispute between the parties that the medical condition of the 2nd plaintiff puts her somewhere between the lower and middle range of the serious injury category as defined in the case of Lee Ting Lam.

14. Taking into account the above matters as well as the medical evidence in relation to the 2nd plaintiff, a reasonable global award for pain suffering and loss of amenities for the 2nd plaintiff would be $525,000.

LOSS OF SOCIETY/SERVICE

15. The evidence show that the 2nd plaintiff has suffered a personality change and has become withdrawn and less inclined to fulfil her household chores and her role as a wife and mother. Since the accident, the husband and daughters have had to help the 2nd plaintiff to do the household chores as she had lost interest in doing them. Moreover, the 2nd plaintiff had stopped having sex with her husband since the accident. Despite that the husband remains supportive of her.

16. Dr Green states that the 2nd plaintiff now avoids going out with her children and has a severely reduced affection for her immediate family members. He classifies such symptoms as Symptoms of Avoidance which, he states, are characteristic of Post Traumatic Stress Disorder.

17. There can be little doubt that the husband and the children have also suffered as a result of this change of personality of the 2nd plaintiff. Hopefully, the loss of society/service will not be permanent with treatment. In all the circumstances I am of the view that an award of $100,000 will be reasonable and appropriate for this head of damage.

SPECIAL DAMAGES

18. The special damages claimed by the 2nd plaintiff have been supported by the evidence adduced which have not been challenged by the 2nd and 5th defendants. I am satisfied that the amounts claimed have been reasonably incurred by the 2nd plaintiff and will be allowed in full. They are as follows :

	$
Medical expenses	37,200
Travelling expenses	1,060
Tonic and nourishing food	10,000
Loss of stock of business	122,700

The total amount comes to $170,960.

LOSS OF INCOME (PRE-TRIAL)

19. The evidence shows that after the collapse of the canopy, the 2nd plaintiff's newspaper stall was wholly inoperative until the debris were cleared and it was rebuilt. The 2nd plaintiff was not able to resume her business until September 1994 but that business remained poor until the end of December 1994 possibly due to people avoiding the site where such a traumatic accident had occurred. I accept that little or no profit was made by the plaintiff during this period. From all the evidence before me I would estimate the loss of profits for these five months to be in the region of about $12,000 per month. Additionally, I accept the plaintiff's evidence that for these five months apart from not making any profit, she was obliged to pay some $6,000 per month for the unsold newspapers.

20. Thereafter, for the next 12 months in the whole of 1995, although business did begin to pick up gradually, I accept that the plaintiff was still suffering a loss of about $6,000 per month.

21. I also accept the plaintiff's evidence which has not been challenged that since January 1995 due to the condition that the 2nd plaintiff is in, she has had to enlist the assistance of her husband and daughter to help her in running the newspaper stall and that had cost her an extra $3,000 more than she would otherwise have had to pay for a replacement worker alone if she was herself fit to work.

22. The loss of income (pre-trial) therefore works out as follows :

		$
$12,000 x 5 months		60,000
$6,000 x 5 months		30,000
$6,000 x 12 months		72,000
$3,000 x 80 months		240,000
	Total:	402,000

FUTURE LOSS OF EARNINGS

23. It is not disputed that the extra cost of the $3,000 would continue in future due to the 2nd plaintiff's condition. She is now 43 years old. The only difference between the parties is on the multiplier to be adopted. The plaintiff suggests a multiplier of 16 whereas the defendants say that 14 is appropriate in this case.

24. Taking account of the fact that the newspaper stall being a business that is owned by the 2nd plaintiff and can be run by her with the assistance of paid help, and on that basis well beyond the normal retirement age of a person, even then a multiplier of 16 seems to be on the high side in all the circumstances of this case. I shall, therefore, accede to the suggestion of the defendants and adopt a multiplier of 14.

25. This would give the total for future loss of earnings to be $504,000.

FUTURE MEDICAL EXPENSES

26. The 2nd plaintiff claims future medical expenses totalling $375,000 based on psychiatric treatment for the first three years at $65,000 per year and thereafter consultations at $12,000 per year for the rest of her life. Included in that claim is also the need for counselling for the family for 12 sessions at $2,500 per session which comes to $30,000.

27. The defendants on the other hand submits that there is no good reason for the future psychiatric treatment to be based entirely on the cost of treatment in the private sector where it has not been shown that psychiatric treatment in government hospital is in any way inferior. The defendants suggest that the mean cost of such treatment in the private sector and those in government hospital be taken and on that basis the defendants are prepared to concede that the future psychiatric treatment for the 2nd plaintiff for the following three years at 26 sessions per year would come to $99,216 while the maintenance treatment for the following 15 years at four sessions per year would work out to be $91,320 and that the counselling for the family would come to $15,264. These figures totals to $205,800 which the defendants are prepared to concede as being the reasonable amount of future medical expenses in this case.

28. In view of that concession by the defendants, the 2nd plaintiff has indicated its willingness in counsel's final submission to come down to $220,000 in respect of the claim for future medical expenses.

29. In the circumstances, the difference between the parties is very small. I do not think it would be of any great assistance for me to delve into the mathematics in detail in coming to a determination of what is a reasonable figure for the future medical expenses. It would be sufficient that I think the final figure of $220,000 suggested by the 2nd plaintiff to be a reasonable sum in all the circumstances and that will be the amount of damages awarded under this head.

INTERESTS

30. Interests at 2% will be awarded for the general damages for pain suffering and loss of amenities from the date of the Writ. Interests for the pre-trial loss of earnings and for other special damages at half judgment rate will be awarded from the date of the accident.

SUMMARY OF ASSESSMENT

		$
PSLA		525,000
Loss of Society		100,000
Special Damages (Pre-trial)		170,960
Pre-trial Loss of Income		402,000
Future Loss of Earnings		504,000
Future Medical Expenses		220,000
	Sub-total:	1,921,960
Interests on General Damages		50,000
Interests on Pre-trial Losses		240,643
	Total :	2,212,603

Accordingly, the total amount of damages inclusive of interests assessed for the 2nd plaintiff comes to $2,212,603.

COSTS

31. There will be a costs order nisi that the costs of the assessment be paid by the defendants on a party and party basis to be taxed if not agreed and with certificate for two counsel. The 2nd plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Ozorio SC, leading Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 2nd Plaintiff

The 1st Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant

The 6th Defendant in person, absent

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.828 OF 1997

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R U L I N G

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Costs order

1. Judgment in this case in favour of the plaintiffs against the defendants was given on 23 December 1999 on the issue of liability. A costs order nisi was included in that judgment which was handed down. The successful plaintiffs have now applied for me to enlarge my costs order nisi so as to order :

(a) the defendants to pay the costs of this action on liability, to be taxed on a common fund basis; and

(b) there be included in the costs order nisi a certificate for two counsel.

2. The defendants do not oppose a certificate for two counsel, but they do oppose the application for costs of this action on liability to be taxed on a common fund basis. I shall therefore only deal with the disputed part of that application here.

3. There were altogether eight plaintiffs in this trial and six named defendants, of which only three took an active part in the trial on liability. Interlocutory judgment had already been entered against the 6th defendant before the trial started. The trial itself spanned some 27 days.

4. It is accepted by all concerned that the court has a discretion to order costs to be taxed on a common fund basis after trial, if there exists special and unusual circumstances in the case itself. The plaintiffs therefore make this application showing special and unusual circumstances on the following basis :

(1) that three of the eight plaintiffs, namely the 4th, 6th and 8th plaintiffs, are minors;

(2) Seagroatt J on 21 July 1998, when he considered and confirmed the order for a split trial made by Master Woolley on 3 July 1998, commented by saying that this is a case in which the plaintiffs are bound to succeed on liability. (This case concerned the collapse of a canopy from a building resulting in the death of the deceased and injuries to seven of the plaintiffs, all of whom were pedestrians walking beneath the collapsed canopy at the material time); and

(3) because of the stance taken by the defendants at the trial, the plaintiffs were put to strict proof of every point by those defendants.

5. Admittedly, where a court is asked to approve a settlement or compromise in a case in the Personal Injuries List involving a plaintiff under a disability (whether a patient or an infant), costs are normally awarded on a common fund basis. But where the action is tried and disposed of by judgment, the normal rule is that no special consideration is given to the fact that the plaintiff is under a disability and the usual party-and-party costs are awarded. Here, although three of the eight plaintiffs are minors, this case went to trial and judgment was given in favour of the plaintiffs. It therefore comes within the second category as stated above. I was, however, referred to the case of Layzell v. British Portland Cement Manufacturers Limited [1961] 1 WLR 557 where common fund cost was awarded to an infant plaintiff for personal injuries after trial. The reason in that case why common fund cost was awarded after trial was due to the fact that legal aid was only granted to the infant's father and next friend part way through the action and did not cover all the costs. That is not the case here where legal aid was granted to all the plaintiffs at the very outset.

6. As for the second point taken by the plaintiffs, granted that it was difficult to see how the plaintiffs could have lost on liability, however, with the exception of the 3rd and 4th defendants (who did not take part in the trial), the other defendants raised defences which, if it had been successful on the evidence, would have exonerated them or some of them from liability in this case. Moreover, the defences raised were not frivolous and were defences that each of the defendants was entitled to raise. Each defendant was also seeking to put the blame on other defendants. Admittedly each of the defendants was not successful in their defence, but to order costs be taxed on a common fund basis for this reason would be punitive of the defendants for exercising their undoubted rights to defend the plaintiffs' claim.

7. As for the third point, the plaintiffs were put to strict proof of most parts of the plaintiffs' pleaded case. However, I take the view that the award of costs on a common fund basis was meant to compensate a plaintiff for the legal costs that he had been put to and for which he would not be able to recover if the common fund basis had not been ordered. That is why special and unusual circumstances had to be shown where the matter went to trial. Where, as here, the plaintiffs had been put to strict proof of most of its pleaded case by the defendants, reasonable expenses incurred in proving the plaintiffs' case would normally be recoverable under party-and-party costs.

8. Even considering all the points together, I am unable to see the kind of special and unusual circumstances in the present case to merit costs being ordered on a common fund basis. I therefore decline to exercise my discretion to do so.

9. Accordingly, the costs order nisi would only be amended to include a certificate for two counsel. I would further order that the costs flowing from this application to be part of the costs of the action itself.

HCPI 828/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 828 OF 1997

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HCPI828/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 828 OF 1997

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REASONS FOR RULING

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1. The Plaintiffs took out three summonses, all under O.24, r.7(8) for non-party discovery against the Director of Buildings, the Director of the Urban Services Department and the Commissioner of Police respectively, dated 1st, 2nd and 8th December 1998. After hearing the parties, I gave the orders sought by the Plaintiffs in respect of all three summonses. I now give my reasons for the Orders.

Background

2. This is a claim by seven Plaintiffs for damages, either for personal injuries or under the Fatal Accidents Ordinance in respect of a tragic accident which took place on 1st August 1994 when the canopy on the first floor of Albert House in Aberdeen collapsed, falling onto the pavement below and causing either the injuries or the death to the passers-by who were on that pavement at that time. The trial in respect of liability is scheduled for May 1999.

3. There are six Defendants altogether being sued. One of the issues in the case is the allegation by the Plaintiffs that a fish tank installed at one end of this canopy caused or contributed to the collapse of the canopy either because of its weight, or due to the fact that at the time of the accident, this fish tank was being dismantled. This fish tank was being used at the time of the accident by the 4th Defendant, the New Best Restaurant Limited, the licensee of which is the 3rd Defendant, Ho Wing Hang. At the pre-trial review of this action on 30th November 1998, the 3rd Defendant was given leave to amend his Defence to include, inter alia, reliance upon advice given by alleged professionals and/or contractors in so far as the installation of the fish tank was concerned, and also reliance upon approval for the fish tank allegedly given by the Urban Services Department in consultation with the Buildings Department. This amendment has obviously opened up new avenues and therefore the necessity to follow this up with the Urban Services Department and the Buildings Department. It is for this reason that the Plaintiff now wish to inspect the files of these two departments particularly in relation to the installation of the fish tank.

4. After the accident, the Police took statements from a number of witnesses for the purpose of investigation into this accident and no doubt to see whether any person should be prosecuted as a result of this accident.

5. At the hearing of these summonses, I was informed by Ms Remedios that the Buildings Department and the Urban Services Department have already supplied to the Plaintiffs some documents but not all the documents in the relevant files have been disclosed, in particular, those relating to the canopy, including the application by the 3rd and 4th Defendants for approval of the fish tank and any material bearing upon the accident. Ongoing attempts to obtain such material first from the Buildings Department and subsequently from the Police met eventually with opposition, particularly in relation to unedited witness statements taken by both the Police and the Buildings Department after the accident.

Stance taken by the Department of Justice

6. Mr Li, appears on behalf of the Department of Justice, who in turn represents the Director of Buildings, the Director of Urban Services Department and the Commissioner of Police. I was informed by Mr Li that whilst the Director of Buildings does not oppose the disclosure of unedited statements of witnesses because consent from those witnesses have already been obtained, however, the main opposition comes from the Commissioner of Police on the grounds that indiscriminate disclosure of the personal data of data subjects as contained in the witness statements taken by the Police will contravene the provisions of the Personal Data (Privacy) Ordinance, Cap.486 ("the Ordinance").

7. Reliance is placed on Principle 3 set out in Schedule 1 of the Ordinance which principle relates to the use of personal data, and that section 4 of the Ordinance provides that a data user shall not do an act or engage in a practice that contravenes a data protection principle unless it is required and permitted under the Ordinance. There is no dispute that, for the purpose of the Ordinance, the Hong Kong Police Force is the data user and the witnesses who gave those statements are the data subjects. It can also be safely presumed that the contents of those witness statements would contain personal data of the relevant data subjects.

8. It was submitted by Mr Li that Principle 3 requires that the personal data of a data subject shall not, without the written consent of the data subject, be used for any purpose other than the purpose for which the data were to be used at the time of the collection of the data, or any other purpose directly related to that purpose. In the present case, Mr Li submits that the sole purpose for the taking of those witness statements which contain the personal data of the data subjects, was for Police investigations into the accident with a view to possibly prosecuting any person who may be found criminally responsible for the accident, and did not include the disclosure of such data to the Plaintiffs in the civil action herein. Mr Li further highlights in his argument the fact that there is no specific provision under the Ordinance whereby compliance with a Court Order may be exempted from Principle 3, unlike Section 34(5) of the Data Protection Act 1984 in the United Kingdom whereby personal data are exempted from the non-disclosure provisions in the Act in any case in which the disclosure is required by the order of a court made in the course of legal proceedings.

9. A further point relied on by Mr Li is that he seeks to rely on common law principles that where a subsequent statute is inconsistent with any earlier statute and the conflicts cannot be reconciled, the legislature is taken to intend that the subsequent statute should prevail over the earlier statute. Whilst acknowledging that section 42 of the High Court Ordinance gives the Court power to order non-party discovery, he argues that the Personal Data (Privacy) Ordinance, Cap.486 is subsequent in time to the High Court Ordinance, Cap.4, therefore any inconsistency between the Ordinance and section 42 of the High Court Ordinance, where the conflict cannot be reconciled, the provisions of the Ordinance should prevail.

10. For these reasons, Mr Li submits that the Plaintiffs' summonses for unedited statements should be dismissed.

Law and practice in respect of non-party discovery

11. In personal injuries or fatal accident cases, there is a long standing jurisdiction of the High Court to order the disclosure by a non-party to the proceedings, documents in his possession, custody or power which are relevant to any issue arising out of that claim. This jurisdiction of the High Court is derived from section 42 of the High Court Ordinance, Cap.4 with rules enacted under O.24, r.7A to carry into practice what is provided for in section 42 of the High Court Ordinance. In the case of Wong Siu Hing & Anor v. Lo Che Keung & Anor [1991] 1 HKC 412, it was held by Kaplan J. that the power of the court to order a non-party to produce relevant documents was not fettered except as provided by the relevant provisions of statute and the rules, and was to be exercised so as to further the proper administration of justice.

12. In the case of Chan Tam Sze and Others v. Hip Hing Construction Co. Ltd. and Others [1990] 1 HKLR 473, it was ordered against the Commissioner of Labour a non-party to that action, the discovery of files relating to construction sites at which the plaintiffs had been injured at work despite the objection by the Commissioner of Labour that such an Order for discovery against him may contravene section 5 of the Factories and Industrial Undertakings Ordinance by disclosing either the name or identity of a complainant under that Ordinance, or by disclosing any manufacturing or commercial secret or working process. It was further held by Bokhary J. (as he then was) that such order for discovery would be accompanied by an order made on the undertaking of the solicitors for the plaintiffs not to disclose the name or identity of a complainant, or any secret process contained in the discovered material other than to the plaintiff, his counsel, secretarial and clerical staff and experts.

13. These two cases underline not only the importance of the power given to the court under section 42 of the High Court Ordinance for ordering disclosure by non-parties, but also the extent to which that power relates.

Personal Data (Privacy) Ordinance

14. Generally speaking, this Ordinance came into effect on 20th December 1996, although Part II of that Ordinance dealing with administration came into effect on 1st August 1996. As stated in the Ordinance, this is an Ordinance to protect the privacy of individuals in relation to personal data and to provide for matters incidental thereto, or connected therewith. "Personal data" is defined in the Ordinance to mean any data -

a. relating directly or indirectly to a living individual;

b. from which it is practicable for the identity of the individual to be directly or indirectly ascertained; and

c. in a form in which access to or processing of the data is practicable.

"Data user" is also defined in the Ordinance as "in relation to personal data means a person who either alone or jointly or in common with other persons controls the collection, holding, processing or use of the data". "Use" is defined in the Ordinance in this way : "in relation to personal data, includes disclose or transfer the data". Section 4 of the Ordinance provides that a data user shall not do an act, or engage in a practice that contravenes a data protection principle unless the act or practice, as the case may be, is required or permitted under this Ordinance. Schedule 1 of the Ordinance contains Data Protection Principles and Principle 3 thereof, in relation to use of personal data, provides that :-

"Personal data shall not, without the prescribed consent of the data subject, be used for any purpose other than -

a) the purpose for which the data were to be used at the time of the collection of the data; or

b) a purpose directly related to the purpose referred to in paragraph (a)."

Part 8 of the Ordinance deals with exemption and section 58 provides as follows :-

"(1) Personal data held for the purposes of -

...

(d) the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons.

... are exempt from the provisions of data protection principle 6 and section 18(1)(b) where the application of those provisions to the data would be likely to (1) prejudice any of the matters referred to in that subsection or (2) directly or indirectly identify the person who is the source of the data.

(2) Personal data are exempted from the provisions of data protection principle 3 in any case in which -

(a) the use of the data is for any of the purposes referred to in subsection (1) (and whether or not the data are held for any of those purposes); and

(b) the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in that subsection ..."

15. It is clear from section 58(2) that personal data are exempted from the provisions of Data Protection Principle 3 where the use of the data is for any of the purposes referred to in section 58(1), and whether or not the data are held for any of those purposes. What I have to decide, therefore, is whether the use of such data in a civil action claiming for damages resulting from the collapse of this canopy falls within the ambit of section 58(1)(d) of the Ordinance which provides for, inter alia, the remedying of unlawful conduct.

16. Firstly, I note that in section 58(1), the use of the word 'crime' in paragraph (a) and the word 'offender' in paragraph (b). This to my mind suggest, therefore, that the use of the words "unlawful or seriously improper conduct" in paragraph (d) extend beyond criminal conduct to include civil wrongs. Secondly, the use of the word 'remedying' in paragraph (d) is again suggestive of the same thing. The most natural meaning that can be given to the word 'unlawful' is that it normally describes something which is contrary to some law or enactment or is done without lawful justification or excuse. (See R. v. R. [1991] 4 All ER 481 per Lord Keith of Kinkel at page 484.)

17. Since tort is a civil wrong, the bringing of a civil claim for damages in tort amounts to the remedying of unlawful or seriously improper conduct. For these reasons, I have no hesitation in coming to the conclusion that the words contained in section 58(1)(d) of the Personal Data (Privacy) Ordinance is sufficiently wide to cover claim for damages in a personal injuries and/or fatal accident case. That being the case, the use of such data in respect of such a civil claim is therefore exempted from the provisions of Data Protection Principle 3 by section 58(2) of the Ordinance.

18. If I should be wrong on the above, I further hold that paragraph (b) of Data Protection Principle 3 in Schedule 1 of the Ordinance creates a further exemption in that the bringing of this civil action for damages in relation to the collapse of the canopy is a purpose directly related to the initial purpose for which the witness statements were originally taken by the Police, namely, the Police investigation into the collapse of this canopy, and, therefore, there is no need to obtain the consent of the data subject before such data can be used in the ensuing civil action. The nexus of that relationship is the collapse of the canopy.

19. In the way that I have construed the Personal Data (Privacy) Ordinance, there is therefore no inconsistency between it and section 42 of the High Court Ordinance. It should also be noted that it was never the intention of the legislature that the Personal Data (Privacy) Ordinance would impede the administration of justice by restricting or eliminating the power of the High Court to order discovery under section 42 of the High Court Ordinance and it would be a very sad day for the administration of justice in Hong Kong if that consequence came about, whether intended or not.

20. Moreover, I have not the slightest hesitation to hold that the material sought by the Plaintiff in this application are highly relevant to the issues in this case. I should just add here that what evidence is or is not relevant to the issues in a personal injuries action is to be determined by the Court and not by the data user as seems to have been suggested by Mr Li in his submission. That no doubt is the raison d'etre for section 42 of the High Court Ordinance.

21. Hopefully with this ruling, those involved in the administration of Government departments will no longer have to live with the shadow previously cast over them by the Personal Data (Privacy) Ordinance when being requested for witness statements by parties involved in personal injuries litigations arising out of the same accident, in respect of which those witness statements were taken initially. Secondly, perhaps these Government departments would like to consider redrafting the standard forms of witness statements to be taken in future so as to include in those standard forms words which have the effect of making known to the witnesses that such statements, once given and signed by them, may be used in ensuing civil actions or in matters directly related to the purpose for which such statements were initially taken.

Representation:

Ms Corinne Remedios, inst'd by M/s Wilkinson & Grist, for the Plaintiffs

Mr Herbert Li, S.G.C., of Department of Justice, for the Director of Urban Services, Director of Building Department and Commissioner of Police

Miss V. Lee, of M/s Gallant Y.T. Ho & Co., for the 2nd Defendant

Mr Lai, of M/s J. Chan Yip So & Partners, for the 3rd Defendant

The 1st, 4th, 5th and 6th Defendants absent

1997, No. HCPI 828

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 828 OF 1997

________________

________________

________________

R U L I N G

________________

1. This came before me as an application for an extension of time to file a Notice of Appeal against certain decisions of Master Woolley made on the Check List hearing of this personal injury action on the 7th July 1998. I refused leave because there was no merit in any of the decisions because of challenged, and an underlying misconception concerning matters which may properly be the subject of appeal where the Master has a wide discretion to exercise and is concerned to facilitate early and economical resolution of actions claiming damages for personal injuries. It is necessary to set out a little of the background.

2. There are seven Plaintiffs in this action, six of whom were injured when the canopy at the first floor level of Aberdeen House, situate at the junction of Cheng Tu Street and Sai On Street, collapsed. Another padestrian was tragically killed and the seventh Plaintiff claims on behalf of her estate. The incident occurred on the 1st August 1994 almost 4 years ago. The Writ with Statement of Claim was not issued and served until approximately one month before the end of the 3-year limitation period viz. 31st July 1997. I state that as a fact, not as a point of criticism. I am not concerned with whether there was any fault, but it means that the Defendants did not see the case pleaded against them - and there are six of them - until nearly three years after the event. The Defences of all were served by the 10th November 1997. Happily the matter has proceeded expeditiously since proceedings were commenced but this is a case in which the Plaintiffs are bound to succeed on liability. The canopy collapsed as a result of someone's fault and one or more of the Defendants are liable.

3. The Check List hearing came on before Master Woolley in accordance with the existing Practice Direction. The Lists filed by the parties indicated estimates of the length of trial between 5 and 12 working weeks, a very wide range. I am inclined to think that these are not informed estimates but guesses; in any event they clearly include the time for the quantum evidence and arguments of the seven Plaintiffs. An obvious consideration for the Master would have been the available means of shortening the trial, taking steps to crystallise the issues and avoiding unnecessary expense and an important factor would have been that to which I referred earlier - the Plaintiffs are bound to succeed against one or more Defendants.

4. The purpose of a Check List hearing is to get the parties to provide information which will facilitate the Masters' task in practical management of the action. Court time and resources have to be used sensibly. Sometimes the parties need to be kept on a tight rein. They have to be assisted to "see the wood as well as the trees."

5. The Master made a number of orders all designed to achieve the goals set out. He applied his considerable experience, judgment and discretion to that end. Management of the action necessarily involves management of the parties' representatives and a reconciling of conflicting interests wherever possible.

6. I will deal with the decisions which the Plaintiff seeks to challenge, enumerated in accordance with the Plaintiffs' sequence.

ii) All Defendants are to file and serve a list of Documents within 60 days.

This is an entirely reasonable period. The Plaintiff complains that the period is too generous to the Defendants. Looking at the chronology of this action it lies ill in the Plaintiffs mouth to take such a stance. Having said that I am sure the Master took the view that the Defendants were fully able to meet that deadline. Time runs in the long vacation. There is nothing in this point.

iv) All parties to serve and file witness statements of fact within 90 days.

The Plaintiff complains that this is an excessive period - In my view it is certainly a comfortable period within which to do this. Undoubtedly the Learned Master had this in mind - knowing the tendency on the part of Defendants in particular to leave such basic preparation to the last minute, he has imposed a realistic period. There is nothing in this point.

vi) All non-medical expert reports are to be exchanged and filed within 90 days.

Although the Plaintiffs complain about this decision no reason appears in the affirmation of Mr. Fok nor in Mr. Budge's skeleton argument. However I propose to assume that it must be based on the same point - an excessively long period. There are bound to be a number of expert reports. I concede they may need to be seen by counsel well before trial. If he is to advise on any matter before the pre-trial review a sufficient period for consideration by the experts of all evidence must be given. I anticipate that all Defendants who rely upon expert evidence will have got their experts in line sometime ago. If they have not then it will be their own fault. This is an entirely reasonable period of time. There is nothing in this point.

vii) A split trial was ordered. The Learned Master was entitled to order this. It is entirely in his discretion even if no party had raised it. On the estimates of length of trial given to him, however inadequately considered by the parties, the case is unwieldy. Since the real issue is between the Defendants and can be more swiftly and economically resolved in a split trial, it is entirely reasonable. It is no disadvantage to the Plaintiffs or any of them. There is no reason why the necessary preparation for the quantification of the claims should not continue; indeed, I would expect it to proceed so that as soon as liability has been resolved, the Defendant or Defendants faced with meeting the claims know exactly where they stand. There is nothing of merit in the Plaintiffs' objection to this item in the Master's order.

7. I note that the Master is to review progress in early October. By then the new Practice Direction will be in force. He clearly has in mind excising his discretion within the spirit of the changes as he is entitled to do. All matters remain within his purview and he will have considerable flexibility.

8. This intended appeal by the Plaintiffs was misconceived. Only if a party could demonstrate actual or potential prejudice to its case could it mount a challenge to any aspect of an order which is designed to rationalise and facilitate the resolution of litigation. Merely suggesting that an order or an item in it, will or may affect it tactically, will not do. There is nothing in any item in this order which is remotely prejudicial to any party. An intended appeal of this nature is contrary to the principles of good case management - it wastes time, money and resources and is an example of how extreme adversariality can become.

9. The application is dismissed with costs to the 1st, 2nd, 3rd, 5th and 6th Defendants.

Representation:

Mr. John Budge of M/s Wilkinson & Grist for Plaintiff

Mr. H. L. Cheng of M/s Chan & Chiu for D1

Miss V. Lee of M/s Gallant Y. T. Ho & Co. for D2

Mr. Lai Wing Hong of M/s J. Chan, Yip, So & Partners for D3

Mr. P. W. To of M/s Chan, Evans, Chung & To for D5

Mr. Johny Leung of M/s Johnny K. K. Leung & Co. for D6