HCPI784/1995 CHOI MEI HO v. CHUNG CHIU YING t/a KIN KEE and Others - LawHero
HCPI784/1995
高等法院（人身傷害）Leong, J.19/3/1997
HCPI784/1995
1995, No. PI784
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
PERSONAL INJURIES
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BETWEEN
CHOI MEI HO Plaintiff
and
CHUNG CHIU YING 1st Defendant
trading as KIN KEE (Action discontinued)
WONG KIT CHIT 2nd Defendant
(Action discontinued)
LIU YUK WAH 3rd Defendant
CHAN YIU SHU, 4th Defendant
the Personal Representative of (Action discontinued)
CHAN KAM WING, deceased
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Coram : Hon Leong, J. in Court
Dates of hearing : 17th - 20th February 1997
Date of judgment : 20th March 1997
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J U D G M E N T
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The Plaintiff was employed by the 3rd Defendant as a labourer to work at the construction site at DD92, Lot 2502, Tsung Pak Long, Sheung Shui. On 24th December 1988, the Plaintiff while she was working on a platform fell 8 metres to the ground and sustained serious injuries. As a result, she is now a paraplegic. The site was a building construction site. The 4th Defendant was the owner of the building under construction.
She commenced action for employees compensation against the 3rd Defendant as her employer and against the 1st Defendant as the principal contractor at the site. She also commenced action for common law damages against the 1st Defendant as the principal contractor at the site, the 2nd Defendant as the 1st Defendant's wife, the 3rd Defendant as her employer and the 4th Defendant as the owner of the building at the construction site.
The Plaintiff obtained judgment at the District Court against the 3rd Defendant and compensation in the sum of HK$569,387 and interest was awarded. The judge in the case, however, found that the 1st Defendant was not liable either as the Plaintiff's employer or the principal contractor at the site. In view of the ruling of the District Judge, the action against the 1st Defendant and 2nd Defendant for common law damages was discontinued before trial.
At the trial, the 3rd Defendant failed to appear. The 4th Defendant appeared in person. The Plaintiff after some consideration, withdrew the action against the 4th Defendant. The trial proceeded against the 3rd Defendant in his absence.
The Plaintiff's claim is based on four causes of action i.e. breach of employer's duty implied in the contract of employment, breach of the common duty of care under Occupiers' Liability Ordinance, breach of statutory duty and general negligence.
The defence of the 3rd Defendant is that he was a supervisor employed by the 1st Defendant and he supervised the work at the site. He was not the employer of the Plaintiff. The building contract was between the Plaintiff and the other defendants. He denied any breach of employers' duty, statutory duty and he denied he was occupier of the site.
On the question of liability
It is necessary to decide whether the 3rd Defendant was the plaintiff's employer at the material time. The Plaintiff's case that the 3rd Defendant was her employer is based on a contract dated 16th June 1988. This was signed by the 4th Defendant as owner and 3rd Defendant as contractor and by this contract the 3rd Defendant undertook to build the house for the 4th Defendant. There is no question that the 3rd Defendant was the main contractor at the site and was not the 4th Defendant's supervisor as he claimed in his defence. The Plaintiff also relies on the District Court judgment against the 3rd Defendant to estop the 3rd Defendant from denying that he was the employer of the Plaintiff. I find as a fact that the 3rd Defendant was both the principal contractor at the site and the employer of the Plaintiff at the material time.
How the accident occurred on 24th December 1988
The Plaintiff gave evidence. Her evidence was that she was on a 8 meter high working platform controlling a winch for lifting a bucket of sand from the ground to the roof. This platform was made up of a wooden board supported by two wooden battens placed across the void space between the roof and the scaffolding. Neither the board nor the battens were secured in place. The platform was not fenced and the Plaintiff was not provided with safety belt with suitable anchorage and no step had been taken to ensure that she wore a safety belt at work. In the course of pulling the bucket towards the platform, the bucket knocked against the supporting battens, with the result that one of the supporting battens slipped away and the Plaintiff, together with the platform, fell 8 metres to the ground. The Plaintiff was seriously injured.
Subsequent investigation as to the cause of the accident was made by the factory inspector. In his report, he gives the following conclusion :
"The accident arose from the collision between a bucket of sand and a supporting batten of a working platform. However, the major factor attributable to the accident was that the working platform and its supporting battens were not securely fixed on their respective supports. Any slight displacement of the supporting battens would cause the whole structure to collapse."
On this evidence, I find that the platform was not safe and the 3rd Defendant had failed to provide a safe working place and a safe system of work for the Plaintiff. I also find that the 3rd Defendant had not complied with statutory requirements as to safety of workers working on platforms at a height of more than 4 meters, requirements as to safety belts and general requirements of safety of workers at construction sites under Regulation 38L(b), 38N and 38Q of the Construction Sites (Safety) Regulations, Cap.59. Being the main contractor and having admitted he was at the site supervising construction work, I find he was occupier of the site at the material time. I find there is no evidence of negligence on the part of the Plaintiff.
I am satisfied that it has been proved on balance of probabilities that the 3rd Defendant was liable in all four causes of the Plaintiff's action namely, as employer for his breach of the implied terms of employment, as main contractor for his breach of his statutory duty as to safety requirements at the site, as occupier of the site for breach of his duty of care under the Occupier's Liability Ordinance and he was negligent. I am not satisfied that there was contributory negligence on the part of the Plaintiff in this accident.
The Plaintiff suffered the following injuries on admission :
a. One laceration over right parietal region of head.
b. Bruises over right forehead, right thigh, left shoulder and upper back.
c. Marked angulation of lower thoracic spine with tenderness.
d. Loss of sensation from lower abdomen (at level of iliac crest) downwards involving both lower limbs.
e. Loss of muscular movement in both lower limbs.
f. Urinary retention.
g. Radiologically revealed a fractured dislocation of the 12 thoracic vertebra over the 1st lumbar vertebra.
An operation was performed on 25th December 1988. Luque instrumentation was carried out to stabilize the reduced spine. The spinal cord was found to be crushed by the bony injury at the site of dislocation. The Plaintiff did not recover from her neurological damage and remained complete paraplegic. Further operation was carried out on 6th February 1990 to remove the Luque implant and clinical examination revealed no change of her neurological impairment.
According to the reports of Dr Horsfall, Dr Edmund Woo, Dr Singer who examined the Plaintiff on 16th December 1990, 26th September 1995 and 27th September 1995 respectively, the present condition of the Plaintiff can be summarised as follows :
a. She is a complete paraplegia with complete loss of sensation from waist down and paralysis of the lower extremities. She is wheelchair bound. Her deficits are permanent.
b. She suffers from double incontinence. Dr Woo says that she has to empty her bladder every 3 to 4 hours by intermittent self catheterization. She has no anrectal sensation and rectal suppositories are needed every few days for her bowel movements. Faecal soiling may still occur.
c. She has intermittent painful paresthesia in the proximal segment of both lower limbs, particularly around the groins and the hips. Dr Woo says that this is the symptom a patient experiences after injury to the spine and is consistent with loss of sensation in the lower limbs.
d. She experiences very painful and frequent spasm. Dr Woo says this is also consistent with injury to the spine at T12/L1 level but is not so common as compared with injury to a higher level of the spine such as at T6.
e. Because of her incontinence with the need of use of catheter and being unable to turn herself in bed without assistance, there are risks of urinary tract infection and bed sores. However, when she was examined, she was found not to have suffered from pressure sores. This could have been due to the good care she had been receiving since her discharge from hospital.
f. Though she is able to maintain an upright sitting posture, she needs assistance in getting upright as well as transferring from wheelchair to bed and vice versa. She needs 24 hour care and attention.
g. She suffers from total loss of sexual function.
h. Dr Singer says that she is suffering from depression. This is a psychiatric disorder characterised by depressive mood and associated symptoms such as loss of interest, energy and initiative, loss of self esteem, insomnia, poor appetite and impaired congitive functioning. Her depression is shown by her depressive mood, irritability, feelings of worthlessness, slowness and pessimism. The condition is moderate to severe in degree. She weeps frequently and has suicidal ideas, feels fatigued and sleeps poorly and sleep is interrupted every half to two hours and has marked increase in weight. These various conditions are likely to be permanent. But she will benefit from psychiatric treatment consisting of counselling and at times medication as necessary.
All the doctors who examined the Plaintiff assessed her loss of earning capacity to be 100%. The Employee's Compensation (Ordinary Assessment) Board also assessed her loss of earning capacity to be 100%.
Damages for pain, suffering and loss of amenities
The Plaintiff was born on 27th January 1951. She was 37 at the time of the accident and is now 46. In Dr Woo's opinion, patients with spinal cord injury have a shortened survival. He says that based on the results in a paper Long term Survival of Veterans with Traumatic Spinal Cord Injury, by G.P. Samsa et al, Archives of Neurology, 1993 at page 912, for patients with a complete paraplegia due to spinal cord injury sustained between the ages of 30 and 64, the mean additional life expectancy is 29 years from the accident. This is due to the likelihood of complications arising from urinary tract infection and pressures sores. If these do not set in, the patient expects a longer life. He says being wheelchair bound, the Plaintiff would be less likely to have such risk as chest infection. Proper medical and nursing care can improve her life expectancy. Dr Woo refers to the opinion of Dr Brian Choa in the case of Ng Kwok Wing v. Lau Ping Kwan & Others [1996] HKLR 261 that a healthy 47 year old man today in Hong Kong has a life expectancy of 35 years but Dr Woo considers Dr Choa's estimate of 23 years survival time for a complete paraplegia injured between the age of 30 and 49 as rather conservative. According to the Hong Kong Life Tables 1986 2011, of the Census and Statistics Department, Hong Kong, a female at the age of 46 has a life expectancy of 36.75 years. Thus the Plaintiff's life expectancy has been substantially reduced because of her impairments.
In Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 the Court for the purposes of awards for pain, suffering and loss of amenities, had categorised injuries into serious injuries, substantial injuries, gross disability and disaster. Gross disability comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket. Disaster is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to living cabbages or left with the mental age of very young children. Awards for pain, suffering and loss of amenities were revised in Leung On & another v. Chan Pui Ki (an infant) [1996] 2 HKC 565. Awards in the category of gross disabilities under the new guidelines is $660,000 to $1,000,000 and in the disaster category is $1,000,000 upwards.
Mr Leong for the Plaintiff submits that the present case is comparable with the case of Ng Kwok Wing v. Lau Ping Kwan & Others where the court awarded $1.5 million for pain, suffering and loss of amenities. He submits the injuries suffered by the Plaintiff in Ng's case are comparable to the injuries of the Plaintiff here. Both of them suffered injuries to T12 of the thoracic vertebrae and L1 of the lumbar vertebrae rendering them both paraplegics paralysed from waist down with total loss of sensation. Both of them suffered constant pain in the lower limbs and also both had psychiatric problem. In addition, the Plaintiff in the present case has frequent spastic attacks making it difficult for her to have continuous sleep.
I am satisfied that the Plaintiff's injuries together with reduction in her life expectancy and her psychiatric problems have put her in a comparable position to the Plaintiff in Ng's case and that puts her case in the disaster bracket. I see no reason why I should not make the same award for pain, suffering and loss of amenities as in the case of Ng. Accordingly my conclusion is that the award for pain, suffering and loss of amenities is in the sum of $1.5 million.
On Pretrial loss of earnings
It is obvious that in her condition after the accident and her present condition, the Plaintiff is not able to work and cannot be expected to do so. Her loss of earning capacity has been assessed at 100% which I accept.
The Plaintiff was a labourer earning $185 per day before the accident. Her average working days per month working at several construction sites alternatively were 27. In addition she had $250 bonus per month. Her average pre accident earnings were about $5,250 per month. The present earnings of an unskilled female labourer at construction sites according to the figures for November 1996 from the Census and Statistics Department are $425.50 per day with bonus of approximately $600 per month. On the same basis of a 27 working day month, the earnings of the Plaintiff would have been about $12,100 per month if she had not met the accident. Her average earnings over the pretrial period would be about $8,675 per month, taking the median sum between $5,250 and $12,100. Her pretrial loss of earnings over a period of 98 months between the date of accident and the date of trial is $8,675 x 98 = $850,150.
On pretrial expenses
These include medical expenses incurred from the date of accident to the trial date. Apart from $4,235 incurred for the period she was in Prince of Wales Hospital, she has incurred a total of RMB 22,576 or $22,576 on conversion at the rate of $1 = ¥1 for her treatment in the Shenzhen Hospital and purchase of medicine. The Plaintiff had moved to Shenzhen after her discharge from hospital in Hong Kong. Other expenses incurred in Hong Kong were the husband's travelling expenses of $1,838, and cost of wheelchair and special equipment amounting to $4,972. Expenses incurred in Shenzhen include cost of special equipment, alteration of toilet seat and installation of handrail at her Shenzhen accommodation, cost of hiring a nurse and a maid and food for the maid, nourishing food, and her husband's loss of earnings including bonus. All these amount to RMB 113,391 or $113,391 at the same conversion rate of $1 = ¥1. These are all reasonably incurred and I see no reason for disallowing such claims. The total of pretrial expenses is : $26,811 + $1,838 + $4,972 + $113,391 = $147,012.
Loss of future earnings
The Plaintiff is 46 years old. Based on her working life of up to 65, the conventional multiplier for calculating loss of future earnings is 10. Mr Leong for the Plaintiff has referred to a list of personal injury cases between 1981 and 1991 where the victims were aged between 45 and 55. The multipliers adopted by the court ranged from 9 for a 45 year old to 10 for a 55 year old. In the recent case of Ng Kwok Wing, Cheung J. agreed that the multiplier for a 47 year old based on 4 5% discount was about 10. Mr Leong asks me to adopt that approach. I accept that to adopt the conventional 10 is the most appropriate figure in the case of the Plaintiff. On the basis of this multiplier, the Plaintiff's loss of future earnings is $12,100 x 12 x 10 = $1,452,000.
Multiplier for future expenses
As mentioned before, an average healthy female person at the age of 46 may expect to live up to 75 before her natural demise. There is no evidence that the Plaintiff was not a healthy female before the accident. However, her survival time according to Dr Woo is 29 years from the time of the accident which means she may only live up to 65 because of the accident. The time during which she may require the necessary expenses will be for the remainder of the duration of her life. Mr Leong asked me to adopt a figure of 19. It seems that this represents the multiplier to be used when making a lump sum award which by using both interest and capital will be exhausted at the end of 37 years. This obviously has not taken into consideration the evidence of Dr Woo of the Plaintiff's probable survival of 29 years from the date of accident and the possibility of untoward chances which might terminate the Plaintiff's life earlier. In my opinion the multiplier of 19 is too high. Having regard to the multiplier in assessing loss of future earnings, the multiplier I adopt is 12.
Alternative accommodation
The Plaintiff of her own choice, has selected to live in Shenzhen. In Shenzhen she is able to engage a nurse and a maid to take care of her at a cheaper rate. She indicates she will remain in Shenzhen since her family is there. Her present accommodation is a village house provided free to her by her relative in the United States. She is able to have access to the various parts of it but because of the narrow doors and steps at entrances, she had difficulty in getting through without assistance. The toilet and bathroom are not suitable for her although the toilet has been converted in a rather rudimentary way in an attempt to cope with her needs. Dr Horsfall has recommended that she needs a more spacious house or flat with modified bathroom and toilet facilities. Ready accessibility by wheelchair is important.
Shenzhen therefore has been selected as the place to provide alternative accommodation because the Plaintiff has opted to live in Shenzhen for reasons stated above. The Plaintiff has also indicated she had no intention to own a property. She prefers a property which is rented to her because it is difficult to buy a property in Shenzhen with a convenient location and she does not wish to live in a remote area.
Peter Cheung, Chartered Valuation Surveyor, in his report recommends for selection two properties in Shenzhen which he considers suitable for the accommodation of the Plaintiff in her present condition : one property is Metropolis Garden and the other is a property in Po Lai Building, but Metropolis Garden is in a convenient location. His view is that the rental in Shenzhen has stabilised over the past 12 months and his forecast is that it will remain stable. The rental for the property at Metropolis Garden is $3,600 per month. The area of this property is 833 sp.ft. and management fee is charged at $266 per month. Tax is approximately $54 per month. To obtain the tenancy, an agency fee of a month's rent is payable i.e. $3,600.
Joseph Kwan an architect of the Environmental Advisory Services, an expert in providing information on access to building by disabled and handicapped person, gives the opinion that the property at Metropolis Garden is more suitable for the Plaintiff because of the layout of the flat which has three rooms, subject to adaptation to meet the needs of the Plaintiff which would cost around $473,500. The work required would include repartitioning of the premises and alterations to the bathroom to accommodate the bath trolley and a more easily assessible toilet for the Plaintiff. Since the work will be carried out in Shenzhen, he considers the cost of adaptation will be 1/3 less than in Hong Kong. This means the cost will be reduced by $157,800. There is no question that the landlord is unwilling to allow the alterations to the premises if rented to the Plaintiff.
This is not a case where the Plaintiff seeks to recover the difference between two rentals and the approach in the two cases Leung Sai Kui v. F. Zimmern & Co. HCA 1151/85 and Li Tin Yau v. Leung Chi Tai HCA 7524/85 cited in Ng Kwok Wing does not apply. Because her present free accommodation is unsuitable for her rehabilitation, the Plaintiff needs to move to a more suitable property. This requires a monthly rental and other expenses. The damages she is entitled to recover should include the full rental and expenses she is required to pay when she moves to the new place. That will also include the expenses for adaptation of the premises to suit her needs.
I accept that the Plaintiff's present accommodation is not suitable. I am satisfied that her choice to stay in Shenzhen is proper and the alternative accommodation at Metropolis Garden with 833 sq.ft. at a rental of $3,600 per month with little likelihood of rent increase is reasonable. I am also satisfied that what the Plaintiff now seeks is to enable her to function as best and as normal as she could in her daily life and she has no intention of making a windfall out of her predicament. I am satisfied that the alterations are necessary.
The cost of alternative accommodation and adaptation is this :
Rent etc. : $3,920 x 12 x 12 = $564,480
Agency fee : $3,600
Cost of adaptation : $315,700
Total = $883,780
Cost of future nursing and medical expenses
Alice Tsang the expert in her report recommends the hiring of a Filipino maid. The fact that the Plaintiff now chooses to remain in Shenzhen makes it not practical if not impossible for a Filipino maid to assist her in Shenzhen. The Plaintiff was able to have a maid in Shenzhen before trial to assist her and I see no reason why this cannot be done now. I agree that a full time maid is required. The cost of a full time maid who is willing to sleep in the same room with her is $1,000 per month. The Plaintiff in her evidence told me that before trial she had a nurse who came to her home to give her massage and acupuncture injections two hours in the morning and two hours in the afternoon each day until she could no longer afford to engage her. These were injections of Vitamin B6 and B12 as well as a Chinese herb "Don Kuai" and they were to relieve her pain so that she could sleep better at night. Dr Woo says that theoretically Vitamin B6 and B12 given by intramuscular injection would not give any benefit in spinal cord trauma. However, there is no study that these are not useful. B6 and B12 would not be helpful to reduce the tinkling feeling in parathesia. Nevertheless doctors do prescribe them to spinal damage patients because patients with deficiency in these vitamins could have spinal problems and the vitamins are there to make up the deficiency. Theoretically, the Plaintiff would not be feeling anything from such injections. As regards the Chinese herb, Dr Woo says that there is no such injection.
Dr Woo says massage would be of assistance. It may improve circulation but whether it would be like physiotherapy is questionable.
The Plaintiff seeks to claim the cost of the service of a nurse to perform these functions at the rate of 4 hours each day at $50 per hour. In view of Dr Woo's evidence, I do not accept that acupuncture injections would be of benefit to the Plaintiff and bearing in mind the Plaintiff will receive frequent physiotherapy treatments, 4 hours each day for massage by a nurse would not be reasonable. The claim for nursing care in this respect should be reduced to half. The award is :
Full time maid $1,000 per month x 12 x 12 = $144,000
Relief staff $2,000 per year x 12 = $24,000
Nurse $3,000 per month x 12 x 12 = $432,000
Food for maid $300 per month x 12 x 12 = $43,200
Total = $643,200
Occupational therapy
Alice Tsang recommends attendance at her clinic by the Plaintiff twice a week for the first three months with accommodation provided to the Plaintiff near her clinic. This is to enable the Plaintiff to accept and to adapt to her changed functions and to assist her to integrate back to her former way of life in a new environment.
Thus, during the first three months, attendance in clinic is important. I accept that this is necessary but I do not think that it will be practical for the Plaintiff to rent a place near the clinic of Alice Tsang for such purpose. It would not be possible for the Plaintiff to rent a flat with all the facilities adapted to her needs in her wheelchair bound condition. For such a short term of 3 months, I would not expect any landlord would agree to conversion of his flat to accommodate the Plaintiff. I allow her claim for the cost of occupational therapy at $800 per attendance twice a week for three months i.e. $19,200.
Physiotherapy treatment
This is necessary. According to David Siu, physiotherapist, one of her problems is inadequate strength in her upper limbs for wheelchair management and other manuvours. Physiotherapy programmes are required to improve her strength in her upper limbs and to give her paralised limbs stretching exercises to prevent stiffening of her joints. The Plaintiff will also be given massage which will be complimentary to physiotherapy treatment. David Siu recommends 40 sessions for the first 20 weeks and thereafter biweekly on maintenance basis. The place for the Plaintiff to receive such treatment will be in the Shenzhen People's Hospital. The charges are $80 per session. The cost will be $80 x 40 = $3,200 for the first 20 weeks and $80 x 26 x 18 = $37,440 for the remainder of her life. The total is $40,640. I make an award in this sum.
Psychiatric treatment
This is recommended by Dr Singer. He says the Plaintiff is suffering from depression to a degree between moderate and severe. The Plaintiff would probably improve if assistance by counselling is given to her. This will enable her to see things in different light, alter her attitude and encourage her to use her remaining resources to cope. If she can cope, she can find reward in what she can do and will be less depressed. But counselling will not remove her depression. Dr Singer gives a 10% improvement from such treatment. The other treatment will be by way of administering antidepressants. These will lift the Plaintiff's mood to enable counselling to start. The cost for treatment and medication will be $40,000 per year for the first two years and thereafter $20,000 each year for maintenance for three years. I am satisfied that such treatments and medication are necessary and the cost for them is not unreasonable. The award is $40,000 x 2 for the first two years and $20,000 x 3 for the three years that follow, making a total of $140,000.
Medical checkups
Dr Woo recommends 6 monthly medical check ups and yearly tests such as X'ray, blood and urine tests. The cost will be $2,000 per year. I accept this is necessary and reasonable. The award is $2,000 x 12 = $24,000.
Cost of hospitalisation
The cost at $4,000 per year is also accepted. This is a provision for the Plaintiff in the later years of her life when pressure sores may develop and require treatment and hospitalisation. The award is $4,000 x 12 = $48,000.
Nursing service
The Plaintiff claims the cost of nursing service. This is recommended by Alice Tsang at 20 times per year. In view of the award on the engagement of a nurse to visit the Plaintiff every day, it will be duplication of nursing care if further award is made for such service. This item is disallowed.
Future transportation needs
On the cost of the Plaintiff's future transportation needs, Alice Tsang recommends the provision of a car for the Plaintiff. The cost involves the purchase of the car and replacement every five years together with other expenses such as petrol, car park, insurance and maintenance. The Plaintiff is not a qualified driver and she has never driven a car. The evidence show that the Plaintiff is a person lacking in initiative. Alice Tsang says she could learn to drive. This I doubt. I do not think that in view of her condition and her outlook she is likely to learn to drive. In any case, she will be staying in Shenzhen and there are restrictions on owning a car in China and I doubt that she would be allowed to own a car in Shenzhen. The claim for the cost of transportation in the form of a private car and allied expenses is disallowed. The claim at $26,000 per year in the form of fares for rehab bus and taxi for transportation is accepted and the award under this item is $26,000 x 12 = $312,000.
Special equipments
On special equipments, the items claimed are as follows :
1. Wheelchair. Alice Tsang recommends two types of wheelchair - a light weight one for the Plaintiff to move around and a stand up wheelchair with electric control to enable the Plaintiff to attain an upright position when required to improve her blood circulation. The light weight one costs $14,000 which is not electrically propelled but the electrically operated stand up wheelchair costs $66,000 each. It is not known if there is maintenance agent for this type of wheelchair in Shenzhen and neither is it known if the battery would be replaceable in Shenzhen. Maintenance of such a chair will be a problem in Shenzhen. In any case, the sole function of this stand up chair is to encourage blood circulation. Daily massage will be provided to the Plaintiff and this type of wheelchair would be a luxury rather than a necessity. I accept if the light weight wheelchair can be motorised, it would be of benefit to the Plaintiff when she needs to go out longer. In Ng's case, an electric wheelchair and maintenance would cost around $42,000. I think the best way to deal with the Plaintiff's need for a wheelchair is to make an award on the cost of a electric wheelchair. There will be a need for a lap board, antidecubitus wheelchair cushion. The award on these items is :
a. Electric wheelchair
$42,000 x 3 = $126,000
b. Maintenance at 30% of costs
$12,600 x 3 = $37,800
c. Wheelchair lapboard
$500 x 6 = $3,000
d. Anti decubitus wheelchair
cushion $4,000 x 3 = $12,000
Total $178,800
2. Hospital bed and commode/shower chair, bed pans etc. These are necessary. A hospital bed can offer to the Plaintiff alternative lying down positions to prevent bed sores and easy transfer from bed to wheelchair with minimum assistance. The bed is not necessary at this stage when she is still able to use a normal bed. But as the Plaintiff advances in age, she will need a special bed. The commode/shower chair is required to enable the Plaintiff to have showers in a sitting position and for bowel movement. Accordingly an award on the cost of these items should be made as below :
a. Hospital bed and maintenance
$(35,000 + 10,500) x 1 = $45,500
b. Anti decubitus mattress
$3,300 x 1 = $3,300
c. Commode/shower chair
and maintenance
$(6,000 + 1,800) x 4 = $31,200
d. Bed pan $150 x 12 = $1,800
Total = $81,800
3. Bath trolley with tub and drain hose and hoist are not required at present but as the Plaintiff's age advances, she will no longer be fit for taking showers. The cost for these equipments and their maintenance should be provided for in the award.
a. Bath trolley with tub and
drain hose and maintenance
$30,000 + $9,000 = $39,000
b. Hoist with replacement
and maintenance
$50,000 + $15,000 = $65,000
Total = $104,000
4. Elbow crutch, 2 foot drop split, heel protector, bilateral long leg calipers are required to prevent deformity of legs and ankles and to relieve pressure at heels, to be worn during sleep. The light weight reacher is required because the Plaintiff is unable to balance herself in the wheelchair when she tries to reach things from her sitting position. These are necessary and the cost for them should be awarded.
a. 2 Foot drop split
$3,000 x 6 = $18,000
b. Heel protector
$350 x 12 = $4,200
c. 2 Bilateral long leg calipers
and maintenance
$11,200 x 4 + $3,360 x 4 = $58,240
d. Light weight reacher
$400 x 5 = $2,000
Total = $82,440
5. Upper and lower limb exercising machine with wheelchair attachment and maintenance - This is an item of luxury. However because she has opted to remain in Shenzhen making her difficult to travel to rehab centres in Hong Kong where she would be able to make use such exercise machines, it would be reasonable if she can be provided with one at her home in Shenzhen. Award to provide for the cost and maintenance of the machine should be made.
Exercising machine with maintenance
$56,000 x 2 + $16,800 x 2 = $145,600
6. Medical disposables are required because of the Plaintiff's incontinence and medicine are required for pressure sores. These are as follows and provision for their cost should be made in the award.
a. Catheters
$5,460 x 12 = $65,520
b. Adult diapers
$2,392 x 12 = $28,704
c. PVC matress cover
$260 x 12 = $3,120
d. Antiseptic disinfectant
$960 x 12 = $11,520
e. Skin ointment
$1,200 x 12 = $14,400
f. Duoderm or other dressing
for pressure sores
$1,000 x 12 = $12,000
Total = $135,264
7. Other equipments required for her future care include air conditioners and heaters. These are necessary because of the immobility of the Plaintiff and the risk of pressure sores. Provision for their cost and maintenance should be included in the award. These are replaced every five years but all air conditioners and heaters are provided with at least one year guarantee and free maintenance during the first year after purchase. Alice Tsang recommends maintenance cost for the five year life of the equipment in the sum of 30% of the cost of the air conditioner. This is not unreasonable. Telephone with hand free unit is a necessity. But the life span of a telephone should be more than 4 years as indicated by Alice Tsang. Cost for two such phone should be awarded to the Plaintiff.
a. Air conditioner with remote
control and maintenance
$4,500 x 2.5 + $1,350 x 2.5 = $14,625
b. Heater with remote control
and maintenance
$4,500 x 2.5 + $1,350 x 2.5 = $14,625
c. Hand free Telephone unit
$1,600 x 2 = $3,200
Total = $32,450
T.V. and Hi Fi
Alice Tsang recommends the provision of a TV and Hi Fi set with replacement every five years. I do not think these are equipments of necessities because of the Plaintiff's condition. If the Plaintiff had not been injured, she would still have a TV. TV and Hi Fi set are so popular now in Hong Kong and China that almost every household has one or more such sets, I do not accept these should form part of the damages to be awarded to the Plaintiff. No award should be made for these items.
Holiday and fund management
Extra cost on holidays and fund manager are required. The Plaintiff should be able to participate in social events or go on holiday with an attendant, the cost of which would be $5,000 x 12 = $60,000.
The cost to engage a fund manager is also allowed. The Plaintiff was a labourer and she cannot be expected to be able to invest the fund herself without expert advice and she needs to pay for such advice. The cost of this will be 10% of the fund to be managed i.e. the amount of loss of future earnings (Leung On & another v. Chan Pui Ki).
A summary of the awards is as follows :
Items for future care
Wheelchair etc. $178,800.00
Hospital bed and commode etc. $81,800.00
Bath trolley with tub, drain
hose and hoist $104,000.00
Elbow crutch, footdrop split,
heel protector, calipers and
reacher $82,440.00
Limb exercising machine $145,600.00
Medical disposables $135,264.00
Hospitalisation $48,000.00
Physiotherapy treatment $40,640.00
Psychiatric treatment $140,000.00
Medical check ups $24,000.00
Occupational therapy $19,200.00
Maid and nurse $643,200.00
Accommodation $883,780.00
Transportation $312,000.00
Air conditioner $14,625.00
Heater $14,625.00
Telephone $3,200.00
Holidays $60,000.00
$2,931,174.00
Quantum of damages
PSLA $1,500,000.00
Interest (3% p.a. x 63 months) $236,250.00
Loss of future earnings $1,452,000.00
Pretrial loss of earnings $850,150.00
Other pretrial loss and
expenses $147,012.00
Interest on total of all pretrial
losses (5% p.a. x 98 months) $407,175.00
$4,592,587.00
Damages for future care $2,931,174.00
Fund management fees
10% on $1.5 million $150,000.00
$7,673,761.00
Less Employees Compensation $569,387.00
Total $7,104,374.00
Judgment is to the Plaintiff in the sum of $7,104,374.00 and costs of the action against the 3rd Defendant is to the Plaintiff. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
(Arthur Leong)
Judge of the High Court
Mr Alan Leong (D.L.A.) assigned for Plaintiff
3rd Defendant in person - absent
CHOI MEI HO v. CHUNG CHIU YING t/a KIN KEE and Others
1995, No. PI784
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
PERSONAL INJURIES
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BETWEEN
CHOI MEI HO Plaintiff
and
CHUNG CHIU YING 1st Defendant
trading as KIN KEE (Action discontinued)
WONG KIT CHIT 2nd Defendant
(Action discontinued)
LIU YUK WAH 3rd Defendant
CHAN YIU SHU, 4th Defendant
the Personal Representative of (Action discontinued)
CHAN KAM WING, deceased
--------------
Coram : Hon Leong, J. in Court
Dates of hearing : 17th - 20th February 1997
Date of judgment : 20th March 1997
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J U D G M E N T
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The Plaintiff was employed by the 3rd Defendant as a labourer to work at the construction site at DD92, Lot 2502, Tsung Pak Long, Sheung Shui. On 24th December 1988, the Plaintiff while she was working on a platform fell 8 metres to the ground and sustained serious injuries. As a result, she is now a paraplegic. The site was a building construction site. The 4th Defendant was the owner of the building under construction.
She commenced action for employees compensation against the 3rd Defendant as her employer and against the 1st Defendant as the principal contractor at the site. She also commenced action for common law damages against the 1st Defendant as the principal contractor at the site, the 2nd Defendant as the 1st Defendant's wife, the 3rd Defendant as her employer and the 4th Defendant as the owner of the building at the construction site.
The Plaintiff obtained judgment at the District Court against the 3rd Defendant and compensation in the sum of HK$569,387 and interest was awarded. The judge in the case, however, found that the 1st Defendant was not liable either as the Plaintiff's employer or the principal contractor at the site. In view of the ruling of the District Judge, the action against the 1st Defendant and 2nd Defendant for common law damages was discontinued before trial.
At the trial, the 3rd Defendant failed to appear. The 4th Defendant appeared in person. The Plaintiff after some consideration, withdrew the action against the 4th Defendant. The trial proceeded against the 3rd Defendant in his absence.
The Plaintiff's claim is based on four causes of action i.e. breach of employer's duty implied in the contract of employment, breach of the common duty of care under Occupiers' Liability Ordinance, breach of statutory duty and general negligence.
The defence of the 3rd Defendant is that he was a supervisor employed by the 1st Defendant and he supervised the work at the site. He was not the employer of the Plaintiff. The building contract was between the Plaintiff and the other defendants. He denied any breach of employers' duty, statutory duty and he denied he was occupier of the site.
On the question of liability
It is necessary to decide whether the 3rd Defendant was the plaintiff's employer at the material time. The Plaintiff's case that the 3rd Defendant was her employer is based on a contract dated 16th June 1988. This was signed by the 4th Defendant as owner and 3rd Defendant as contractor and by this contract the 3rd Defendant undertook to build the house for the 4th Defendant. There is no question that the 3rd Defendant was the main contractor at the site and was not the 4th Defendant's supervisor as he claimed in his defence. The Plaintiff also relies on the District Court judgment against the 3rd Defendant to estop the 3rd Defendant from denying that he was the employer of the Plaintiff. I find as a fact that the 3rd Defendant was both the principal contractor at the site and the employer of the Plaintiff at the material time.
How the accident occurred on 24th December 1988
The Plaintiff gave evidence. Her evidence was that she was on a 8 meter high working platform controlling a winch for lifting a bucket of sand from the ground to the roof. This platform was made up of a wooden board supported by two wooden battens placed across the void space between the roof and the scaffolding. Neither the board nor the battens were secured in place. The platform was not fenced and the Plaintiff was not provided with safety belt with suitable anchorage and no step had been taken to ensure that she wore a safety belt at work. In the course of pulling the bucket towards the platform, the bucket knocked against the supporting battens, with the result that one of the supporting battens slipped away and the Plaintiff, together with the platform, fell 8 metres to the ground. The Plaintiff was seriously injured.
Subsequent investigation as to the cause of the accident was made by the factory inspector. In his report, he gives the following conclusion :
"The accident arose from the collision between a bucket of sand and a supporting batten of a working platform. However, the major factor attributable to the accident was that the working platform and its supporting battens were not securely fixed on their respective supports. Any slight displacement of the supporting battens would cause the whole structure to collapse."
On this evidence, I find that the platform was not safe and the 3rd Defendant had failed to provide a safe working place and a safe system of work for the Plaintiff. I also find that the 3rd Defendant had not complied with statutory requirements as to safety of workers working on platforms at a height of more than 4 meters, requirements as to safety belts and general requirements of safety of workers at construction sites under Regulation 38L(b), 38N and 38Q of the Construction Sites (Safety) Regulations, Cap.59. Being the main contractor and having admitted he was at the site supervising construction work, I find he was occupier of the site at the material time. I find there is no evidence of negligence on the part of the Plaintiff.
I am satisfied that it has been proved on balance of probabilities that the 3rd Defendant was liable in all four causes of the Plaintiff's action namely, as employer for his breach of the implied terms of employment, as main contractor for his breach of his statutory duty as to safety requirements at the site, as occupier of the site for breach of his duty of care under the Occupier's Liability Ordinance and he was negligent. I am not satisfied that there was contributory negligence on the part of the Plaintiff in this accident.
The Plaintiff suffered the following injuries on admission :
a. One laceration over right parietal region of head.
b. Bruises over right forehead, right thigh, left shoulder and upper back.
c. Marked angulation of lower thoracic spine with tenderness.
d. Loss of sensation from lower abdomen (at level of iliac crest) downwards involving both lower limbs.
e. Loss of muscular movement in both lower limbs.
f. Urinary retention.
g. Radiologically revealed a fractured dislocation of the 12 thoracic vertebra over the 1st lumbar vertebra.
An operation was performed on 25th December 1988. Luque instrumentation was carried out to stabilize the reduced spine. The spinal cord was found to be crushed by the bony injury at the site of dislocation. The Plaintiff did not recover from her neurological damage and remained complete paraplegic. Further operation was carried out on 6th February 1990 to remove the Luque implant and clinical examination revealed no change of her neurological impairment.
According to the reports of Dr Horsfall, Dr Edmund Woo, Dr Singer who examined the Plaintiff on 16th December 1990, 26th September 1995 and 27th September 1995 respectively, the present condition of the Plaintiff can be summarised as follows :
a. She is a complete paraplegia with complete loss of sensation from waist down and paralysis of the lower extremities. She is wheelchair bound. Her deficits are permanent.
b. She suffers from double incontinence. Dr Woo says that she has to empty her bladder every 3 to 4 hours by intermittent self catheterization. She has no anrectal sensation and rectal suppositories are needed every few days for her bowel movements. Faecal soiling may still occur.
c. She has intermittent painful paresthesia in the proximal segment of both lower limbs, particularly around the groins and the hips. Dr Woo says that this is the symptom a patient experiences after injury to the spine and is consistent with loss of sensation in the lower limbs.
d. She experiences very painful and frequent spasm. Dr Woo says this is also consistent with injury to the spine at T12/L1 level but is not so common as compared with injury to a higher level of the spine such as at T6.
e. Because of her incontinence with the need of use of catheter and being unable to turn herself in bed without assistance, there are risks of urinary tract infection and bed sores. However, when she was examined, she was found not to have suffered from pressure sores. This could have been due to the good care she had been receiving since her discharge from hospital.
f. Though she is able to maintain an upright sitting posture, she needs assistance in getting upright as well as transferring from wheelchair to bed and vice versa. She needs 24 hour care and attention.
g. She suffers from total loss of sexual function.
h. Dr Singer says that she is suffering from depression. This is a psychiatric disorder characterised by depressive mood and associated symptoms such as loss of interest, energy and initiative, loss of self esteem, insomnia, poor appetite and impaired congitive functioning. Her depression is shown by her depressive mood, irritability, feelings of worthlessness, slowness and pessimism. The condition is moderate to severe in degree. She weeps frequently and has suicidal ideas, feels fatigued and sleeps poorly and sleep is interrupted every half to two hours and has marked increase in weight. These various conditions are likely to be permanent. But she will benefit from psychiatric treatment consisting of counselling and at times medication as necessary.
All the doctors who examined the Plaintiff assessed her loss of earning capacity to be 100%. The Employee's Compensation (Ordinary Assessment) Board also assessed her loss of earning capacity to be 100%.
Damages for pain, suffering and loss of amenities
The Plaintiff was born on 27th January 1951. She was 37 at the time of the accident and is now 46. In Dr Woo's opinion, patients with spinal cord injury have a shortened survival. He says that based on the results in a paper Long term Survival of Veterans with Traumatic Spinal Cord Injury, by G.P. Samsa et al, Archives of Neurology, 1993 at page 912, for patients with a complete paraplegia due to spinal cord injury sustained between the ages of 30 and 64, the mean additional life expectancy is 29 years from the accident. This is due to the likelihood of complications arising from urinary tract infection and pressures sores. If these do not set in, the patient expects a longer life. He says being wheelchair bound, the Plaintiff would be less likely to have such risk as chest infection. Proper medical and nursing care can improve her life expectancy. Dr Woo refers to the opinion of Dr Brian Choa in the case of Ng Kwok Wing v. Lau Ping Kwan & Others [1996] HKLR 261 that a healthy 47 year old man today in Hong Kong has a life expectancy of 35 years but Dr Woo considers Dr Choa's estimate of 23 years survival time for a complete paraplegia injured between the age of 30 and 49 as rather conservative. According to the Hong Kong Life Tables 1986 2011, of the Census and Statistics Department, Hong Kong, a female at the age of 46 has a life expectancy of 36.75 years. Thus the Plaintiff's life expectancy has been substantially reduced because of her impairments.
In Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 the Court for the purposes of awards for pain, suffering and loss of amenities, had categorised injuries into serious injuries, substantial injuries, gross disability and disaster. Gross disability comprises injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket. Disaster is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to living cabbages or left with the mental age of very young children. Awards for pain, suffering and loss of amenities were revised in Leung On & another v. Chan Pui Ki (an infant) [1996] 2 HKC 565. Awards in the category of gross disabilities under the new guidelines is $660,000 to $1,000,000 and in the disaster category is $1,000,000 upwards.
Mr Leong for the Plaintiff submits that the present case is comparable with the case of Ng Kwok Wing v. Lau Ping Kwan & Others where the court awarded $1.5 million for pain, suffering and loss of amenities. He submits the injuries suffered by the Plaintiff in Ng's case are comparable to the injuries of the Plaintiff here. Both of them suffered injuries to T12 of the thoracic vertebrae and L1 of the lumbar vertebrae rendering them both paraplegics paralysed from waist down with total loss of sensation. Both of them suffered constant pain in the lower limbs and also both had psychiatric problem. In addition, the Plaintiff in the present case has frequent spastic attacks making it difficult for her to have continuous sleep.
I am satisfied that the Plaintiff's injuries together with reduction in her life expectancy and her psychiatric problems have put her in a comparable position to the Plaintiff in Ng's case and that puts her case in the disaster bracket. I see no reason why I should not make the same award for pain, suffering and loss of amenities as in the case of Ng. Accordingly my conclusion is that the award for pain, suffering and loss of amenities is in the sum of $1.5 million.
On Pretrial loss of earnings
It is obvious that in her condition after the accident and her present condition, the Plaintiff is not able to work and cannot be expected to do so. Her loss of earning capacity has been assessed at 100% which I accept.
The Plaintiff was a labourer earning $185 per day before the accident. Her average working days per month working at several construction sites alternatively were 27. In addition she had $250 bonus per month. Her average pre accident earnings were about $5,250 per month. The present earnings of an unskilled female labourer at construction sites according to the figures for November 1996 from the Census and Statistics Department are $425.50 per day with bonus of approximately $600 per month. On the same basis of a 27 working day month, the earnings of the Plaintiff would have been about $12,100 per month if she had not met the accident. Her average earnings over the pretrial period would be about $8,675 per month, taking the median sum between $5,250 and $12,100. Her pretrial loss of earnings over a period of 98 months between the date of accident and the date of trial is $8,675 x 98 = $850,150.
On pretrial expenses
These include medical expenses incurred from the date of accident to the trial date. Apart from $4,235 incurred for the period she was in Prince of Wales Hospital, she has incurred a total of RMB 22,576 or $22,576 on conversion at the rate of $1 = ¥1 for her treatment in the Shenzhen Hospital and purchase of medicine. The Plaintiff had moved to Shenzhen after her discharge from hospital in Hong Kong. Other expenses incurred in Hong Kong were the husband's travelling expenses of $1,838, and cost of wheelchair and special equipment amounting to $4,972. Expenses incurred in Shenzhen include cost of special equipment, alteration of toilet seat and installation of handrail at her Shenzhen accommodation, cost of hiring a nurse and a maid and food for the maid, nourishing food, and her husband's loss of earnings including bonus. All these amount to RMB 113,391 or $113,391 at the same conversion rate of $1 = ¥1. These are all reasonably incurred and I see no reason for disallowing such claims. The total of pretrial expenses is : $26,811 + $1,838 + $4,972 + $113,391 = $147,012.
Loss of future earnings
The Plaintiff is 46 years old. Based on her working life of up to 65, the conventional multiplier for calculating loss of future earnings is 10. Mr Leong for the Plaintiff has referred to a list of personal injury cases between 1981 and 1991 where the victims were aged between 45 and 55. The multipliers adopted by the court ranged from 9 for a 45 year old to 10 for a 55 year old. In the recent case of Ng Kwok Wing, Cheung J. agreed that the multiplier for a 47 year old based on 4 5% discount was about 10. Mr Leong asks me to adopt that approach. I accept that to adopt the conventional 10 is the most appropriate figure in the case of the Plaintiff. On the basis of this multiplier, the Plaintiff's loss of future earnings is $12,100 x 12 x 10 = $1,452,000.
Multiplier for future expenses
As mentioned before, an average healthy female person at the age of 46 may expect to live up to 75 before her natural demise. There is no evidence that the Plaintiff was not a healthy female before the accident. However, her survival time according to Dr Woo is 29 years from the time of the accident which means she may only live up to 65 because of the accident. The time during which she may require the necessary expenses will be for the remainder of the duration of her life. Mr Leong asked me to adopt a figure of 19. It seems that this represents the multiplier to be used when making a lump sum award which by using both interest and capital will be exhausted at the end of 37 years. This obviously has not taken into consideration the evidence of Dr Woo of the Plaintiff's probable survival of 29 years from the date of accident and the possibility of untoward chances which might terminate the Plaintiff's life earlier. In my opinion the multiplier of 19 is too high. Having regard to the multiplier in assessing loss of future earnings, the multiplier I adopt is 12.
Alternative accommodation
The Plaintiff of her own choice, has selected to live in Shenzhen. In Shenzhen she is able to engage a nurse and a maid to take care of her at a cheaper rate. She indicates she will remain in Shenzhen since her family is there. Her present accommodation is a village house provided free to her by her relative in the United States. She is able to have access to the various parts of it but because of the narrow doors and steps at entrances, she had difficulty in getting through without assistance. The toilet and bathroom are not suitable for her although the toilet has been converted in a rather rudimentary way in an attempt to cope with her needs. Dr Horsfall has recommended that she needs a more spacious house or flat with modified bathroom and toilet facilities. Ready accessibility by wheelchair is important.
Shenzhen therefore has been selected as the place to provide alternative accommodation because the Plaintiff has opted to live in Shenzhen for reasons stated above. The Plaintiff has also indicated she had no intention to own a property. She prefers a property which is rented to her because it is difficult to buy a property in Shenzhen with a convenient location and she does not wish to live in a remote area.
Peter Cheung, Chartered Valuation Surveyor, in his report recommends for selection two properties in Shenzhen which he considers suitable for the accommodation of the Plaintiff in her present condition : one property is Metropolis Garden and the other is a property in Po Lai Building, but Metropolis Garden is in a convenient location. His view is that the rental in Shenzhen has stabilised over the past 12 months and his forecast is that it will remain stable. The rental for the property at Metropolis Garden is $3,600 per month. The area of this property is 833 sp.ft. and management fee is charged at $266 per month. Tax is approximately $54 per month. To obtain the tenancy, an agency fee of a month's rent is payable i.e. $3,600.
Joseph Kwan an architect of the Environmental Advisory Services, an expert in providing information on access to building by disabled and handicapped person, gives the opinion that the property at Metropolis Garden is more suitable for the Plaintiff because of the layout of the flat which has three rooms, subject to adaptation to meet the needs of the Plaintiff which would cost around $473,500. The work required would include repartitioning of the premises and alterations to the bathroom to accommodate the bath trolley and a more easily assessible toilet for the Plaintiff. Since the work will be carried out in Shenzhen, he considers the cost of adaptation will be 1/3 less than in Hong Kong. This means the cost will be reduced by $157,800. There is no question that the landlord is unwilling to allow the alterations to the premises if rented to the Plaintiff.
This is not a case where the Plaintiff seeks to recover the difference between two rentals and the approach in the two cases Leung Sai Kui v. F. Zimmern & Co. HCA 1151/85 and Li Tin Yau v. Leung Chi Tai HCA 7524/85 cited in Ng Kwok Wing does not apply. Because her present free accommodation is unsuitable for her rehabilitation, the Plaintiff needs to move to a more suitable property. This requires a monthly rental and other expenses. The damages she is entitled to recover should include the full rental and expenses she is required to pay when she moves to the new place. That will also include the expenses for adaptation of the premises to suit her needs.
I accept that the Plaintiff's present accommodation is not suitable. I am satisfied that her choice to stay in Shenzhen is proper and the alternative accommodation at Metropolis Garden with 833 sq.ft. at a rental of $3,600 per month with little likelihood of rent increase is reasonable. I am also satisfied that what the Plaintiff now seeks is to enable her to function as best and as normal as she could in her daily life and she has no intention of making a windfall out of her predicament. I am satisfied that the alterations are necessary.
The cost of alternative accommodation and adaptation is this :
Rent etc. : $3,920 x 12 x 12 = $564,480
Agency fee : $3,600
Cost of adaptation : $315,700
Total = $883,780
Cost of future nursing and medical expenses
Alice Tsang the expert in her report recommends the hiring of a Filipino maid. The fact that the Plaintiff now chooses to remain in Shenzhen makes it not practical if not impossible for a Filipino maid to assist her in Shenzhen. The Plaintiff was able to have a maid in Shenzhen before trial to assist her and I see no reason why this cannot be done now. I agree that a full time maid is required. The cost of a full time maid who is willing to sleep in the same room with her is $1,000 per month. The Plaintiff in her evidence told me that before trial she had a nurse who came to her home to give her massage and acupuncture injections two hours in the morning and two hours in the afternoon each day until she could no longer afford to engage her. These were injections of Vitamin B6 and B12 as well as a Chinese herb "Don Kuai" and they were to relieve her pain so that she could sleep better at night. Dr Woo says that theoretically Vitamin B6 and B12 given by intramuscular injection would not give any benefit in spinal cord trauma. However, there is no study that these are not useful. B6 and B12 would not be helpful to reduce the tinkling feeling in parathesia. Nevertheless doctors do prescribe them to spinal damage patients because patients with deficiency in these vitamins could have spinal problems and the vitamins are there to make up the deficiency. Theoretically, the Plaintiff would not be feeling anything from such injections. As regards the Chinese herb, Dr Woo says that there is no such injection.
Dr Woo says massage would be of assistance. It may improve circulation but whether it would be like physiotherapy is questionable.
The Plaintiff seeks to claim the cost of the service of a nurse to perform these functions at the rate of 4 hours each day at $50 per hour. In view of Dr Woo's evidence, I do not accept that acupuncture injections would be of benefit to the Plaintiff and bearing in mind the Plaintiff will receive frequent physiotherapy treatments, 4 hours each day for massage by a nurse would not be reasonable. The claim for nursing care in this respect should be reduced to half. The award is :
Full time maid $1,000 per month x 12 x 12 = $144,000
Relief staff $2,000 per year x 12 = $24,000
Nurse $3,000 per month x 12 x 12 = $432,000
Food for maid $300 per month x 12 x 12 = $43,200
Total = $643,200
Occupational therapy
Alice Tsang recommends attendance at her clinic by the Plaintiff twice a week for the first three months with accommodation provided to the Plaintiff near her clinic. This is to enable the Plaintiff to accept and to adapt to her changed functions and to assist her to integrate back to her former way of life in a new environment.
Thus, during the first three months, attendance in clinic is important. I accept that this is necessary but I do not think that it will be practical for the Plaintiff to rent a place near the clinic of Alice Tsang for such purpose. It would not be possible for the Plaintiff to rent a flat with all the facilities adapted to her needs in her wheelchair bound condition. For such a short term of 3 months, I would not expect any landlord would agree to conversion of his flat to accommodate the Plaintiff. I allow her claim for the cost of occupational therapy at $800 per attendance twice a week for three months i.e. $19,200.
Physiotherapy treatment
This is necessary. According to David Siu, physiotherapist, one of her problems is inadequate strength in her upper limbs for wheelchair management and other manuvours. Physiotherapy programmes are required to improve her strength in her upper limbs and to give her paralised limbs stretching exercises to prevent stiffening of her joints. The Plaintiff will also be given massage which will be complimentary to physiotherapy treatment. David Siu recommends 40 sessions for the first 20 weeks and thereafter biweekly on maintenance basis. The place for the Plaintiff to receive such treatment will be in the Shenzhen People's Hospital. The charges are $80 per session. The cost will be $80 x 40 = $3,200 for the first 20 weeks and $80 x 26 x 18 = $37,440 for the remainder of her life. The total is $40,640. I make an award in this sum.
Psychiatric treatment
This is recommended by Dr Singer. He says the Plaintiff is suffering from depression to a degree between moderate and severe. The Plaintiff would probably improve if assistance by counselling is given to her. This will enable her to see things in different light, alter her attitude and encourage her to use her remaining resources to cope. If she can cope, she can find reward in what she can do and will be less depressed. But counselling will not remove her depression. Dr Singer gives a 10% improvement from such treatment. The other treatment will be by way of administering antidepressants. These will lift the Plaintiff's mood to enable counselling to start. The cost for treatment and medication will be $40,000 per year for the first two years and thereafter $20,000 each year for maintenance for three years. I am satisfied that such treatments and medication are necessary and the cost for them is not unreasonable. The award is $40,000 x 2 for the first two years and $20,000 x 3 for the three years that follow, making a total of $140,000.
Medical checkups
Dr Woo recommends 6 monthly medical check ups and yearly tests such as X'ray, blood and urine tests. The cost will be $2,000 per year. I accept this is necessary and reasonable. The award is $2,000 x 12 = $24,000.
Cost of hospitalisation
The cost at $4,000 per year is also accepted. This is a provision for the Plaintiff in the later years of her life when pressure sores may develop and require treatment and hospitalisation. The award is $4,000 x 12 = $48,000.
Nursing service
The Plaintiff claims the cost of nursing service. This is recommended by Alice Tsang at 20 times per year. In view of the award on the engagement of a nurse to visit the Plaintiff every day, it will be duplication of nursing care if further award is made for such service. This item is disallowed.
Future transportation needs
On the cost of the Plaintiff's future transportation needs, Alice Tsang recommends the provision of a car for the Plaintiff. The cost involves the purchase of the car and replacement every five years together with other expenses such as petrol, car park, insurance and maintenance. The Plaintiff is not a qualified driver and she has never driven a car. The evidence show that the Plaintiff is a person lacking in initiative. Alice Tsang says she could learn to drive. This I doubt. I do not think that in view of her condition and her outlook she is likely to learn to drive. In any case, she will be staying in Shenzhen and there are restrictions on owning a car in China and I doubt that she would be allowed to own a car in Shenzhen. The claim for the cost of transportation in the form of a private car and allied expenses is disallowed. The claim at $26,000 per year in the form of fares for rehab bus and taxi for transportation is accepted and the award under this item is $26,000 x 12 = $312,000.
Special equipments
On special equipments, the items claimed are as follows :
1. Wheelchair. Alice Tsang recommends two types of wheelchair - a light weight one for the Plaintiff to move around and a stand up wheelchair with electric control to enable the Plaintiff to attain an upright position when required to improve her blood circulation. The light weight one costs $14,000 which is not electrically propelled but the electrically operated stand up wheelchair costs $66,000 each. It is not known if there is maintenance agent for this type of wheelchair in Shenzhen and neither is it known if the battery would be replaceable in Shenzhen. Maintenance of such a chair will be a problem in Shenzhen. In any case, the sole function of this stand up chair is to encourage blood circulation. Daily massage will be provided to the Plaintiff and this type of wheelchair would be a luxury rather than a necessity. I accept if the light weight wheelchair can be motorised, it would be of benefit to the Plaintiff when she needs to go out longer. In Ng's case, an electric wheelchair and maintenance would cost around $42,000. I think the best way to deal with the Plaintiff's need for a wheelchair is to make an award on the cost of a electric wheelchair. There will be a need for a lap board, antidecubitus wheelchair cushion. The award on these items is :
a. Electric wheelchair
$42,000 x 3 = $126,000
b. Maintenance at 30% of costs
$12,600 x 3 = $37,800
c. Wheelchair lapboard
$500 x 6 = $3,000
d. Anti decubitus wheelchair
cushion $4,000 x 3 = $12,000
Total $178,800
2. Hospital bed and commode/shower chair, bed pans etc. These are necessary. A hospital bed can offer to the Plaintiff alternative lying down positions to prevent bed sores and easy transfer from bed to wheelchair with minimum assistance. The bed is not necessary at this stage when she is still able to use a normal bed. But as the Plaintiff advances in age, she will need a special bed. The commode/shower chair is required to enable the Plaintiff to have showers in a sitting position and for bowel movement. Accordingly an award on the cost of these items should be made as below :
a. Hospital bed and maintenance
$(35,000 + 10,500) x 1 = $45,500
b. Anti decubitus mattress
$3,300 x 1 = $3,300
c. Commode/shower chair
and maintenance
$(6,000 + 1,800) x 4 = $31,200
d. Bed pan $150 x 12 = $1,800
Total = $81,800
3. Bath trolley with tub and drain hose and hoist are not required at present but as the Plaintiff's age advances, she will no longer be fit for taking showers. The cost for these equipments and their maintenance should be provided for in the award.
a. Bath trolley with tub and
drain hose and maintenance
$30,000 + $9,000 = $39,000
b. Hoist with replacement
and maintenance
$50,000 + $15,000 = $65,000
Total = $104,000
4. Elbow crutch, 2 foot drop split, heel protector, bilateral long leg calipers are required to prevent deformity of legs and ankles and to relieve pressure at heels, to be worn during sleep. The light weight reacher is required because the Plaintiff is unable to balance herself in the wheelchair when she tries to reach things from her sitting position. These are necessary and the cost for them should be awarded.
a. 2 Foot drop split
$3,000 x 6 = $18,000
b. Heel protector
$350 x 12 = $4,200
c. 2 Bilateral long leg calipers
and maintenance
$11,200 x 4 + $3,360 x 4 = $58,240
d. Light weight reacher
$400 x 5 = $2,000
Total = $82,440
5. Upper and lower limb exercising machine with wheelchair attachment and maintenance - This is an item of luxury. However because she has opted to remain in Shenzhen making her difficult to travel to rehab centres in Hong Kong where she would be able to make use such exercise machines, it would be reasonable if she can be provided with one at her home in Shenzhen. Award to provide for the cost and maintenance of the machine should be made.
Exercising machine with maintenance
$56,000 x 2 + $16,800 x 2 = $145,600
6. Medical disposables are required because of the Plaintiff's incontinence and medicine are required for pressure sores. These are as follows and provision for their cost should be made in the award.
a. Catheters
$5,460 x 12 = $65,520
b. Adult diapers
$2,392 x 12 = $28,704
c. PVC matress cover
$260 x 12 = $3,120
d. Antiseptic disinfectant
$960 x 12 = $11,520
e. Skin ointment
$1,200 x 12 = $14,400
f. Duoderm or other dressing
for pressure sores
$1,000 x 12 = $12,000
Total = $135,264
7. Other equipments required for her future care include air conditioners and heaters. These are necessary because of the immobility of the Plaintiff and the risk of pressure sores. Provision for their cost and maintenance should be included in the award. These are replaced every five years but all air conditioners and heaters are provided with at least one year guarantee and free maintenance during the first year after purchase. Alice Tsang recommends maintenance cost for the five year life of the equipment in the sum of 30% of the cost of the air conditioner. This is not unreasonable. Telephone with hand free unit is a necessity. But the life span of a telephone should be more than 4 years as indicated by Alice Tsang. Cost for two such phone should be awarded to the Plaintiff.
a. Air conditioner with remote
control and maintenance
$4,500 x 2.5 + $1,350 x 2.5 = $14,625
b. Heater with remote control
and maintenance
$4,500 x 2.5 + $1,350 x 2.5 = $14,625
c. Hand free Telephone unit
$1,600 x 2 = $3,200
Total = $32,450
T.V. and Hi Fi
Alice Tsang recommends the provision of a TV and Hi Fi set with replacement every five years. I do not think these are equipments of necessities because of the Plaintiff's condition. If the Plaintiff had not been injured, she would still have a TV. TV and Hi Fi set are so popular now in Hong Kong and China that almost every household has one or more such sets, I do not accept these should form part of the damages to be awarded to the Plaintiff. No award should be made for these items.
Holiday and fund management
Extra cost on holidays and fund manager are required. The Plaintiff should be able to participate in social events or go on holiday with an attendant, the cost of which would be $5,000 x 12 = $60,000.
The cost to engage a fund manager is also allowed. The Plaintiff was a labourer and she cannot be expected to be able to invest the fund herself without expert advice and she needs to pay for such advice. The cost of this will be 10% of the fund to be managed i.e. the amount of loss of future earnings (Leung On & another v. Chan Pui Ki).
A summary of the awards is as follows :
Items for future care
Wheelchair etc. $178,800.00
Hospital bed and commode etc. $81,800.00
Bath trolley with tub, drain
hose and hoist $104,000.00
Elbow crutch, footdrop split,
heel protector, calipers and
reacher $82,440.00
Limb exercising machine $145,600.00
Medical disposables $135,264.00
Hospitalisation $48,000.00
Physiotherapy treatment $40,640.00
Psychiatric treatment $140,000.00
Medical check ups $24,000.00
Occupational therapy $19,200.00
Maid and nurse $643,200.00
Accommodation $883,780.00
Transportation $312,000.00
Air conditioner $14,625.00
Heater $14,625.00
Telephone $3,200.00
Holidays $60,000.00
$2,931,174.00
Quantum of damages
PSLA $1,500,000.00
Interest (3% p.a. x 63 months) $236,250.00
Loss of future earnings $1,452,000.00
Pretrial loss of earnings $850,150.00
Other pretrial loss and
expenses $147,012.00
Interest on total of all pretrial
losses (5% p.a. x 98 months) $407,175.00
$4,592,587.00
Damages for future care $2,931,174.00
Fund management fees
10% on $1.5 million $150,000.00
$7,673,761.00
Less Employees Compensation $569,387.00
Total $7,104,374.00
Judgment is to the Plaintiff in the sum of $7,104,374.00 and costs of the action against the 3rd Defendant is to the Plaintiff. Plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
(Arthur Leong)
Judge of the High Court
Mr Alan Leong (D.L.A.) assigned for Plaintiff
3rd Defendant in person - absent